☠️🏴‍☠️⚰️🤮NO JUSTICE @ JUSTICE! — GARLAND ISSUES WEAK-KNEED, PERFUNCTORY “NOTHINGBURGER” PROMISING “ACCESS TO JUSTICE REFORMS” WHILE DAILY MOCKING THEM IN PRACTICE IN HIS DYSFUNCTIONAL, ANTI-DUE PROCSS, INTENTIONALLY “USER UNFRIENDLY” IMMIGRATION “COURTS” — Talk About “Lack of Credibility!”

Star Chamber Justice
“Justice”
Star Chamber Style @ EOIR;  Despite the glaring problems, obvious answers, and wide availability of new progressive leadership who should already be removing the deadwood, changing ill-conceived policies, and actually SOLVING representation and other problems at EOIR — America’s most dysfunctional “court” system —  Judge Garland would like to study (while ignoring) what’s wrong rather than take needed progressive action!

https://www.justice.gov/opa/pr/attorney-general-launches-review-reinvigorate-justice-department-s-commitment-access-justice

You can read it here in all of its glorious bureaucratic nothingness and hollow rhetoric:

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, May 18, 2021

Attorney General Launches Review to Reinvigorate the Justice Department’s Commitment to Access to Justice

U.S. Attorney General Merrick B. Garland today announced that the Justice Department will immediately begin work to reinvigorate its Office for Access to Justice and to restore the Justice Department’s role in leading efforts across government to seek and secure meaningful access to justice.

“Trust in the rule of law – the foundation of American democracy – depends upon the public’s faith that government seeks equal justice for all. That is the Justice Department’s core duty, and the mission upon which it was built. But without equal access to justice, the promise of equal justice under law rings hollow,” wrote Attorney General Garland in a memo to departmental leadership this afternoon.

The Attorney General directed the Justice Department’s leadership offices to immediately begin a review process that will engage all relevant stakeholders, both within the department and beyond. The review will initially explore, among other things, how the Justice Department and partners across federal, state, territorial, and tribal governments can alleviate entrenched disparities in our criminal justice system, address barriers to access in our immigration and civil legal systems, and advance health, economic, and environmental justice efforts. The Attorney General’s memo also charged Deputy Attorney General Lisa M. Monaco and Associate Attorney General Vanita Gupta with developing recommendations regarding the resources that will be required to reinvigorate the department’s Office for Access to Justice including a staffing strategy and placement within the department in light of its responsibilities.

The Attorney General will submit a detailed plan to the President for expanding the department’s role in leading access to justice initiatives across government within 120 days.

The Justice Department first launched an access to justice initiative in 2010. Building upon that important effort, the Office for Access to Justice was formally established in 2016 to plan, develop, and coordinate the implementation of access to justice policy initiatives of high priority to the department and the executive branch, including in the areas of criminal indigent defense and civil legal aid. However, during the prior administration, the office was effectively shuttered.

In addition to leading this strategic review within the Justice Department, Attorney General Garland will also help to lead access to justice initiatives across government as co-chair of the Legal Aid Interagency Roundtable, which the President reconvened today. That initiative will bring together more than two dozen federal departments and agencies to address the most pressing legal services challenges that low-income communities, communities of color, and many others across our country face today.

Component(s):

Office of the Attorney General

Press Release Number:

21-456

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

As always, actions speak louder than words or bureaucratic promises to “think about it, and get back to you!” 

So hopefully somebody will ask Garland how the following things going on in HIS EOIR right now “assist access to justice:”

  • Continuous, ongoing “Aimless Docket Reshuffling“ at EOIR that generates an astounding, unnecessary, growing, unaddressed by Garland 1.3 million case backlog that generally disadvantages and wears down the private bar;  
  • Elimination of reasonable continuances @ EOIR for the express purpose of favoring the DHS and making it more difficult to represent individuals in Immigration Court consistent with ethical requirements relating to adequate preparation and verification of claims; 
  • “Courts” improperly located in obscure, out of the way DHS detention centers where lawyers are seldom readily available and substandard conditions are intentionally used to duress individuals into giving up viable claims;
  • Court schedules controlled by unqualified bureaucrats in Falls Church who arbitrarily and capriciously set cases without regard to the needs of parties for preparation time, ethical guidelines, or their workloads;
  • Unreasonable, shortened, cookie cutter “briefing schedules,” designed to expedite removals at the expense of quality and legal excellence and to artificially “stress out” private attorneys, many serving pro bono or low bono;
  • Kids and other vulnerable individuals forced to “represent” themselves in Immigration Courts;”
  • “Judges” who lack immigration expertise and practical experience, therefore forcing already overburdened immigration counsel to “train” these judges, who never should have been appointed in the first place;
  • Hiring of “judges” at the trial and appellate level renowned for their hostility to asylum seekers (particularly women and those of color) and sometimes with established records of bias, rudeness, hostility, and unprofessional conduct toward the private bar; 
  • Systemic exclusion of private bar immigration, human rights, clinical advocates and experts from the Immigration Judiciary;
  • Bogus, due-process-denying “deportation quotas” that discourage scholarship and thoughtful complete litigation of life or death cases in favor of meeting artificial production requirements and timelines designed to keep the “EOIR deportation railroad” running; 
  • Promulgation of “operating produces” for Immigration Courts by Falls Church bureaucrats who have never appeared in Immigration Court, without prior consultation with either sitting Immigration Judges or “stakeholders” in the private bar; 
  • Failure after two decades of wasted effort and false starts to implement even a rudimentary nationwide e-filing system, thereby increasing the burden on private practitioners; 
  • Wrong-headed, anti-immigrant “precedents” intended to discourage individuals from pursuing claims in Immigration Court and to require advocates to appeal to Courts of Appeals to have any chance of obtaining justice for their clients;
  • Following of “worst practices” designed to abuse and increase the stress for advocates in Immigration Court, including failure to follow best health and sanitation practices;
  • Failure to have any qualified progressive immigration practical scholar “on staff” at DOJ who has actually practiced before the Immigration Courts and could credibly lead the reform effort.

Actually, I’m just getting started! But, I have other things on my agenda today, and you get the point! 

Unless progressive immigration advocates “raise hell” with the higher-up in the Biden Administration and on the Hill about Garland’s gross mismanagement of EOIR to date and his lack or expertise or genuine interest in long overdue, badly needed reforms, this is just another Dem “designed to fail” cosmetic effort; yet another insulting attempt by DOJ to fob off immigrants, the private bar, progressives, and their very legitimate needs with more BS “all talk, no action” ineffective policies and plans where immediate, radical progressive, due process reforms are needed, led by progressive experts! 

To state the painfully obvious, Vanita Gupta has enough knowledge and enough contacts in the human rights/civil rights community to have gotten someone from the outside in to take control of EOIR, empowered to knock heads, transfer the Trump/Miller anti-due-process “denial club” crowd and their enablers out, and start recruiting and hiring competent administrators, well-qualified progressive judges, and instituting due process enhancing procedures. Things should already be operating much better; and, as many of us told the Biden Transition Team, having “due process take hold and start acting” would send much needed “shock waves” throughout the “go along to get along” bureaucracy at EOIR who assisted Trump and Miller in putting the “final nail in the coffin” of the already-reeling Immigration Courts.

Advocates and members of the NDPA, the first step in vindicating your clients’ legal rights is to insist that your rights, professionalism, and expertise be respected by those in power. Team Garland is effectively “giving you the big middle finger!” 🖕 If you don’t stand up to this outrageous, dismissive treatment from a Dem Administration, how can you make things better for your clients? 

🇺🇸🗽⚖️Due Process Forever!

PWS

05-19-21

THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List:

EOIR plans to resume non-detained hearings on July 6 at the following immigration courts: Dallas, El Paso, Ft. Snelling, Harlingen, Houston, Houston – S. Gessner Road, Houston – Greenspoint Park Drive, Kansas City, Memphis, New York – Broadway, New York – Federal Plaza, New York – Varick, Portland, San Antonio, and San Juan. Hearings in non-detained cases that are scheduled at the aforementioned courts are postponed through July 3. Noncitizens (or representatives who have entered an appearance with the court) who have not received a notice of reset hearing by June 22 should expect scheduled hearings to proceed. As of July 6, 2021, all immigration courts will be holding limited hearings, applying relevant Federal best practices related to communicable disease.

 

For cases scheduled from July 6 through July 30, parties (or their representatives who have entered an appearance with the court in a case) who have not received notice of a reset hearing by June 22 should plan to attend their hearing as scheduled. All parties, including those with cases scheduled after July 30, should continue to rely on official notices from the immigration court as the best source for information regarding their hearings

 

Please note that the option to file by email at the above-listed courts will end on Sept. 4, 2021.

 

 

TOP NEWS

 

From India, Brazil and Beyond: Pandemic Refugees at the Border

NYT: Most of them are from Central America, fleeing gang violence and natural disasters. But the past few months have also brought a much different wave of migration that the Biden administration was not prepared to address: pandemic refugees. They are people arriving in ever greater numbers from far-flung countries where the coronavirus has caused unimaginable levels of illness and death and decimated economies and livelihoods.

 

Biden revokes Trump order on immigrants’ health care costs

Politico: President Joe Biden on Friday shot down a Trump proclamation that blocked potential immigrants deemed to be a “financial burden” on the nation’s health care system from coming to the United States, saying it didn’t align with U.S. interests.

 

Biden ends Trump ban on pandemic aid for undocumented college students

Politico: Education Secretary Miguel Cardona on Tuesday finalized a new regulation that allows colleges to distribute tens of billions in federal pandemic relief grants to all students, regardless of their immigration status or whether they qualify for federal student aid.

 

Biden meets DACA recipients in immigration overhaul push

WaPo: President Joe Biden met Friday with six immigrants who benefited from an Obama-era policy that protected those brought to the U.S. illegally as children. The president is trying to turn attention toward overhauling the nation’s immigration laws, but it’s an issue he has made scant progress on in the first months of his presidency.

 

Feinstein Asks Garland To Review, Expand Asylum Eligibility

Law360: U.S. Sen. Dianne Feinstein, D-Calif., urged U.S. Attorney General Merrick Garland to overturn his predecessors’ decisions that restricted asylum eligibility for victims of domestic and gang violence, saying those decisions disregarded refugee protections established 40 years ago.

 

Documents Show Trump Officials Used Secret Terrorism Unit to Question Lawyers at the Border

ProPublica: In newly disclosed records, Trump officials cited conspiracies about Antifa to justify interrogating immigration lawyers with a special terrorism unit. The documents also show that more lawyers were targeted than previously known.

 

Border arrests rose slightly in April, but fewer minors crossing without parents eases pressure on Biden administration

WaPo: Immigration arrests and detentions along the U.S.-Mexico border rose slightly in April to 178,622, the highest one-month total in two decades, according to U.S. Customs and Border Protection data published Tuesday, but a decline in the number of teens and children arriving without parents eased pressure on the Biden administration.

 

Biden admin reroutes billions in emergency stockpile, Covid funds to border crunch

Politico: The Department of Health and Human Services has diverted more than $2 billion meant for other health initiatives toward covering the cost of caring for unaccompanied immigrant children, as the Biden administration grapples with a record influx of migrants on the southern border.

 

Afghans who helped the US now fear being left behind

WaPo: The fate of interpreters after the troop withdrawal is one of the looming uncertainties surrounding the withdrawal, including a possible resurgence of terrorist threats and a reversal of fragile gains for women if chaos, whether from competing Kabul-based warlords or the Taliban, follows the end of America’s military engagement.

 

Many Unvaccinated Latinos in the U.S. Want the Shot, New Survey Finds

NYT: The findings suggest that their depressed vaccination rate reflects in large measure misinformation about cost and access, as well as concerns about employment and immigration issues, according to the latest edition of the Kaiser Family Foundation Covid-19 Vaccine Monitor.

 

“Is Stephen Miller still in charge?”: Biden’s first immigration court appointees are all Trump picks

Salon: Nearly all the judges on the Justice Department list have backgrounds as prosecutors or as counselors at Immigration and Customs Enforcement (ICE), while nearly none have any experience defending migrants.

 

Now Over 8,000 MPP Cases Transferred Into United States Under Biden

TRAC: MPP cases assigned to the Brownsville, Texas hearing location continued to show the highest proportion of individuals allowed to enter the U.S.: 45 percent. However, MPP cases from Laredo, Texas which had been scheduled to start its processing over a month later made up a lot of lost ground by the end of April. Only 3 percent of its cases had been transferred into the U.S. at the end of March to await their Immigration Court hearings.

 

LITIGATION/CASELAW/RULES/MEMOS

 

New EOIR Memos Dismantling MPP

  • PM 21-19 (PDF) Cancellation of Policy Memoranda 19-02 (Guidelines Regarding New Regulations Governing Asylum and Protection Claims) and 19-03 (Guidelines Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States)
  • PM 21-20 (PDF) Cancellation of Policy Memorandum 19-12 (Guidance Regarding New Regulations Governing Asylum and Protection Claims)
  • PM 21-21 (PDF) Cancellation of Policy Memorandum 20-04 (Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews)
  • PM 21-22 (PDF) Cancellation of Policy Memorandum 21-09 (Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements)

 

Rescheduling Biometric Services Appointments by Phone 

USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that applicants, petitioners, requestors and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center.

 

CA3 Holds That IJs and the BIA Have General Authority to Administratively Close Cases

The court held that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. (Arcos Sanchez v. Att’y Gen., 5/5/21) AILA Doc. No. 21051432

 

CA3 Says IJs Have Jurisdiction over Removal Proceedings Started by a Notice of Referral to an IJ Lacking Time and Place Information

Denying the petition for review, the court held that an IJ is not deprived of jurisdiction under 8 CFR §1003.14 over removal proceedings commenced by a Notice of Referral to an IJ that lacks time and place information. (Mejia Romero v. Att’y Gen., 5/5/21) AILA Doc. No. 21051433

 

CA3 Finds Sri Lankan Army’s Mistreatment of Petitioner Did Not Rise to Level of Past Persecution

The court held that petitioner’s 2007 detention and beating by the Sri Lankan army did not constitute past persecution, and that extortion attempts by the Eelam People’s Democratic Party (EPDP) of Sri Lanka were not motivated by an imputed political opinion. (Thayalan v. Att’y Gen., 5/10/21) AILA Doc. No. 21051438

 

CA3 Finds That Conviction for Second-Degree Robbery in New Jersey Is an Aggravated Felony Theft Offense

The court held that the petitioner’s 2000 conviction for second-degree robbery in New Jersey constituted an aggravated felony theft offense under INA §101(a)(43)(G), and thus found that the petitioner was ineligible for asylum and withholding of removal. (K.A. v. Att’y Gen., 5/4/21) AILA Doc. No. 21051435

 

CA8 Says a Grant of TPS Does Not Excuse INA §240A(a)’s Admission Requirement for TPS Recipients

The court held that petitioner’s grant of Temporary Protected Status (TPS) did not remove the need for him to show that he was admitted in order to be eligible for cancellation of removal, and that his grant of TPS was not an admission for cancellation purposes. (Artola v. Garland, 5/5/21) AILA Doc. No. 21051439

 

CA9 Bucks Precedent For Immigrants With Citizen Parents

Law360: U.S. residents who are not granted legal permanent residency before they turn 18 can still get citizenship through their naturalized parents, a split Ninth Circuit ruled Thursday in a published en banc opinion that reexamined court precedent.

 

CA9 Defers to BIA’s Permissible Interpretation of Ambiguous “Date of Admission” Phrase in INA §237(a)(2)(A)(i)(I)

The court held that, for purposes of removability for crimes involving moral turpitude (CIMT), the phrase “the date of admission” in INA §237(a)(2)(A)(i)(I) is ambiguous, and the BIA’s interpretation of the phrase in Matter of Alyazji was permissible. (Route v. Garland, 5/6/21) AILA Doc. No. 21051440

 

CA9 Holds That Petitioner’s Asylum Application Was Abandoned Based on Her Failure to Submit Required Biometrics

The court upheld the BIA and IJ’s conclusion that the petitioner’s application for asylum and related relief had been abandoned under 8 CFR §1003.47(c) based on her failure to submit biometrics or establish good cause for her failure to do so. (Gonzalez-Veliz v. Garland, 5/4/21) AILA Doc. No. 21051437

 

CA9 Revives Asylum Case Over Reading Disability

Law360: An El Salvadoran woman who can’t read and whose family mixed up the month and day of her immigration court hearing can seek asylum again, after the Ninth Circuit ruled that her exceptional circumstances warranted a second shot.

 

CA11 Says BIA’s Determination That Petitioner Was Ineligible for Preconclusion Voluntary Departure Was Within Its Independent Discretion

Where petitioner argued that an IJ had failed to inform him he could apply for preconclusion voluntary departure, the court found it lacked jurisdiction to consider his petition, because the BIA had ruled that preconclusion voluntary departure was not warranted. (Blanc v. Att’y Gen., 5/11/21) AILA Doc. No. 21051436

 

Activists Ask 9th Circ. For Enviro Review Of DHS Programs

Law360: Conservation groups backed by an anti-immigration think tank asked the Ninth Circuit Tuesday to revive their claims that certain U.S. Department of Homeland Security immigration programs must undergo environmental review, arguing a review exemption leads to higher immigration numbers, which then drives ecological degradation.

 

Google files legal brief to protect work program for immigrant spouses

Verge: While that ban never came to pass, the ability for people with H-4 visas to work is still under threat from a lawsuit against the federal government. The suit, called Save Jobs USA v. US Department of Homeland Security, was brought by tech workers, who argue that H-4 holders are unfair competition for Americans looking for jobs.

 

Another Twist on Niz-Chavez

ImmProf: The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes”.

 

DHS Announces Process for Identifying Humanitarian Exceptions to Title 42

DHS released a statement noting that it is “working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant humanitarian exceptions” under the CDC Order issued under its Title 42 public health authority. AILA Doc. No. 21051330

 

CIS Ombudsman’s Office Issues Reminder for DACA Renewals

The CIS Ombudsman’s Office issued a reminder that individuals who are eligible to renew their DACA and employment authorization may submit their renewal request between 150 days and 120 days before the expiration on their current Form I-797, Notice of Approval, and on the EAD. AILA Doc. No. 21051035

 

DHS OIG Issues Report on CBP Senior Leaders’ Handling of Social Media Misconduct

DHS OIG found that from 1/1/16 through 6/30/19, 83 CBP employees violated CBP policies and guidance by posting, or commenting on, offensive content on various social media platforms. DHS OIG, however, found no evidence that senior CBP leaders were aware of more than a few of the cases, and determined that CBP and Border Patrol headquarters officials took no action to prevent further misconduct, except when directed to do so by DHS. DHS OIG found no evidence that senior CBP headquarters or field leaders were aware of offensive content posted to a private Facebook group until reported by the media in July 2019. AILA Doc. No. 21051441

 

ACTIONS

 

·         New York For All Virtual Lobby Day 5/20/2021

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, May 17, 2021

Sunday, May 16, 2021

Saturday, May 15, 2021

Friday, May 14, 2021

Thursday, May 13, 2021

Wednesday, May 12, 2021

Tuesday, May 11, 2021

Monday, May 10, 2021

 

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

Thanks, Elizabeth!

Two items of particular interest:  First the article from Igor Derysh in Solon ripping Garland’s inexcusable “Miller Lite” hiring practices at EOIR. I am quoted, among others.

Stephen Miller Monster
What’s the purpose of winning an election if this guy remains in charge of EOIR? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

The absolute stupidity and betrayal of awarding the Administration’s precious first 17 Federal Judicial positions to lesser qualified, non-progressive individuals hired under tainted, exclusionary, biased, restrictionist practices established by Sessions and Barr under Miller’s negative leadership should outrage all progressives and members of the NDPA. Progressives must demand that the Biden Administration get some due-process oriented, progressive competence installed at the DOJ to straighten out EOIR — a job that to date has proved to be beyond Garland’s ability!  

They might also replace Garland’s incompetent “immigration PR team” at DOJ which continues to feed us BS and recycled Trump Administration propaganda that anybody with any familiarity with the Immigration Courts could tell you is pure, unadulterated BS! How insulting!

The millions of folks, including lawyers, caught up in EOIR’s web of restrictionist malicious incompetence deserve better than the insultingly tone-deaf Garland has delivered. Much better!

Progressive reform at EOIR is possible, and it isn’t a profound or long term project. Garland obviously isn’t up to the job. But, there are lots of progressive legal stars out here who can get the job done!

This also illustrates the continuing problem of Dem Administrations appointing AGs who are not experts in immigration and due process and who therefore fail to prioritize progressive immigration, human rights, and due process reforms. Far from being an “afterthought” or “low priority” these are the keys to equal justice and racial justice in America and probably the essential reforms on which the future of our entire democracy depends!

It also illustrates my point that in the future, nobody should become Attorney General, Secretary of DHS, an Article III Federal Judge, or an Immigration Judge unless they have represented individuals in Immigration Court — the critically important “retail level” of our justice system where the “rubber meets the road” of American justice. Right now, the “car is running on four flats” while Garland proves unable to change the tires!

We can’t afford any more of Garland’s “Amateur Night at the Bijou” approach to immigration, human rights, due process, personnel, and racial justice in America!

 

Amateur Night
America needs to end “Amateur Night” at Garland’s EOIR and bring in qualified progressive human rights, immigration, due process leaders to fix the deadly mess before more lives are lost and more taxpayer funds wasted supporting and promoting “malicious incompetence!”
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Second, the article about the grotesquely illegal abuse of the immigration bureaucracy by the Trump DHS to target and harass lawyers defending the due process rights and humanity of migrants shows just how deeply the cancer of the Trump kakistocracy penetrated into the broken immigration bureaucracy. Just another example of how completely broken, corrupt, and dysfunctional that bureaucracy has become.

It also demonstrates the treacherous stupidity of Garland continuing to tolerate problematic Trump/Miller “holdovers” and actually appointing “same old, same old” non-progressives recruited under Barr, Miller, and Trump to key “life or death Federal Judgeships.” 

Additionally, it raises the question of how on earth will Garland’s DOJ effectively and credibly investigate racial justice issues in local policing and elections while Garland is running a White Nationalist, racist, misogynist, grotesquely unfair, regressive, “worst practices court system”at EOIR. Racial justice and competency reform needs to start “at home” — with Garland’s “wholly owned court system” that bears little or no resemblance to a “court of justice!”

Progressives who played a key role in electing Biden and Harris, on the basis of promises to return due process and progressive expertise to the Immigration Courts, and effectively getting Garland his job, need to make their opposition to Garland’s indolent, inexcusable, mis-handling of EOIR known to the Biden Administration and Dem leaders on the Hill! It’s time for progressives and due process advocates to stop letting yourselves be abused by those you have put in power! 

This is NOT OK!

🇺🇸⚖️🗽Due Process Forever!

PWS

05-19-21

BIDEN ADMINISTRATION’S AGREEMENT TO ALLOW A FEW MORE LEGAL ASYLUM SEEKERS TO BE PROCESSED FALLS FAR SHORT OF RESTORING THE RULE OF LAW @ OUR SOUTHERN BORDER! 

 

Elliott Spagat
Elliott Spagat
Reporter
Associated Press

https://www.huffpost.com/entry/biden-asylum-seekers-restrictions_n_60a3a360e4b014bd0cb0c284

Elliot Spagut reports for AP:

The Biden administration has agreed to let about 250 people a day through border crossings with Mexico to seek refuge in the United States, part of negotiations to settle a lawsuit over pandemic-related powers that deny migrants a right to apply for asylum, an attorney said Monday.

The government also said it would stop flying migrant families from Texas’ Rio Grande Valley to El Paso, Texas, and San Diego to then be expelled to Mexico under pandemic powers, said Lee Gelernt, an attorney for the American Civil Liberties Union, which has sued in federal court in Washington, D.C. The government has reserved rights to resume flights “if it deems the circumstances warrant.”

The government concessions would dramatically reshape exercise of powers known as Title 42, named for a section of an obscure 1944 law that former President Donald Trump used to let the U.S. Centers for Disease Control and Prevention effectively end asylum at the border while it sought to prevent the coronavirus from spreading.

Biden has exempted unaccompanied children from Title 42 but kept it for single adults and many families. He has come under criticism from progressives for keeping asylum off-limits to many and for encouraging some parents to send children across the border alone. Enforcement-minded critics say exempting children traveling alone led to record numbers crossing and that lifting restrictions more will invite many more people to come.

The government and the ACLU agreed to “a streamlined process for assessing and addressing exemption requests brought by particular vulnerable families and other individuals,” Gelernt said. Once fully up and running, an estimated 250 particularly vulnerable individuals will be allowed in daily to seek humanitarian protection through a consortium of nongovernmental organizations. They must test for COVID-19 before entering the country.

About 2,000 people have already been allowed to enter the country, exempted from the pandemic-related powers to pursue asylum or other forms of protection while in the United States, Gelernt said.

“While these concessions will hopefully save lives, they are not a substitute for eliminating Title 42 and restoring asylum processing fully,” Gelernt said.

The Department of Homeland Security did not immediately respond to a request for comment Monday night.

. . . .

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

The Administration basically has conceded that the bogus Trump-era Title 42 bar had little to do with public health (never much of a concern for the Trump kakistocracy) and everything to do with eliminating the rights of legal asylum seekers, particularly refugee women and those of color. The Biden Administration’s defense of this travesty is pretty disingenuous. 

Due Process Forever!

PWS

05-18-21

⚖️MOVING IN THE RIGHT DIRECTION, BUT SLOWLY: President Biden Orders Work To Begin On Representation Issues In Immigration Court, Re-Establishes Interagency Round Table On Civil Legal Services — Basically, Study Without Any Immediate Action!

President Joe Biden
President Joseph R.Biden
46th President of The United States
(Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann)..This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.)

https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/18/fact-sheet-president-biden-to-sign-presidential-memorandum-to-expand-access-to-legal-representation-and-the-courts/

BRIEFING ROOM

FACT SHEET: President Biden to Sign Presidential Memorandum to Expand Access to Legal Representation and the Courts

MAY 18, 2021 • STATEMENTS AND RELEASES

Today, President Biden will sign a Presidential Memorandum to expand access to legal representation and the courts.  As President Biden knows from his experience as a public defender, timely and affordable access to the legal system can make all the difference in a person’s life—including by keeping an individual out of poverty, keeping an individual in his or her home, helping an unaccompanied child seek asylum, helping someone fight a consumer scam, or ensuring that an individual charged with a crime can mount a strong defense and receive a fair trial.  But low-income people have long struggled to secure quality access to the legal system.  Those challenges have only increased during the public health and economic crises caused by the COVID-19 pandemic.  At the same time, civil legal aid providers and public defenders have been under-resourced, understaffed, and unable to reach some of the people in greatest need of their services.

The federal government has a critical role to play in expanding access to the nation’s legal system and supporting the work of civil legal aid providers and public defenders.  President Biden’s executive action today will reinvigorate the federal government’s role in advancing access to justice, and help ensure that the Administration’s policies and recovery efforts can reach as many individuals as possible.

The Presidential Memorandum is the Biden-Harris Administration’s latest action to protect vulnerable Americans, reform the justice system, and advance racial equity. On his first day in office, the President issued an executive order establishing a government-wide initiative to put equity at the heart of each agency’s priorities and management agenda. His discretionary budget request called for $1.5 billion in funding for grants to strengthen state and local criminal justice systems, including by investing in public defenders. Improving access to counsel in civil and criminal proceedings builds on each of these efforts.

Specifically, President Biden is directing the following actions:

. . . .

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

Read the rest of the “White House Fact Sheet” at the above link.

On one hand, this is welcome news for the NDPA and all who favor equal justice under law in America.

On the other hand, four months into his Administration, President Biden has just gotten around to undoing some of the inane, White Nationalist actions of the Trump Administration by re-establishing initiatives that failed to solve the problems under the Obama Administration only to be completely eradicated by Trump. In plain terms, more study and dialogue, no real action that helps any of the more than one one million poor souls and their loved ones caught up in Garland’s dysfunctional Immigration Courts.

I submit that the huge problems with lack of effective representation in Immigration Court were well known at the outset of the Trump Administration. Over the last four years, lots of creative ideas have surfaced and a number of states, localities, and NGOs have substantially “upped” their commitment to pro bono or low bono services for asylum seekers, detainees, and other migrants. There is lots of “practical scholarly” literature out there on the subject.

Therefore, it would have been reasonable to expect the Biden Administration to take office with specific plans in hand to immediately start building on existing structures and to have immediately re-started the dialogue with legal service providers. Instead, more than 100 days in, we have plans for more study, talk, and recommendations, but no action; the actual situation in the Immigration Courts under Garland continues rapidly to deteriorate; progressive groups of experts with plans on how to solve representation issues have basically been “frozen out” by Biden — writing op-eds, “white papers,” and studies, rather than leading the representation effort from within the Biden Administration and working as part of a team to solve problems in “real time.”

I’ve heard that some plans for improving representation, at least for “vulnerable groups,” are “in the offing” at DOJ. To date, we’ve seen nothing!

And, I can’t name anyone on “Team Garland” or in current EOIR senior management who actually has first-hand experience with pro bono representation in Immigration Court or who has previously offered concrete, positive suggestions for immediate actions to solve this pressing problem. Consequently, I’m frankly skeptical that the expertise exists, particularly at DOJ, to solve this problem without some dramatic personnel shakeups, more aggressive due process restoring actions, and bringing in progressive experts from the outside to administer and improve judging at EOIR. So far, Garland has shown little interest in addressing the dysfunction in his “wholly owned courts,” nor has he shown any ability to reach out and actively recruit the progressive experts he needs to fix EOIR.

Given the disaster of the last four years and Garland’s poor start (including “in your face” judicial appointments and retention of non-progressive Barr holdovers) its going to take a positive outreach campaign to progressives by Garland to stop the bleeding at DOJ.

Therefore, I personally view the White House announcement with “very cautious  optimism,” hoping to be pleasantly surprised when it spurs immediate practical action.

Stay tuned!

🇺🇸🗽Due Process Forever!

PWS

05-18-21

 

 

 

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!

Rebekah Wolf
Rebekah Wolf
Senior Attorney,
Immigration Justice Campaign
American Immigration Council
PHOTO: Linkedin

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

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-18-21

DEADLY ☠️ EOIR CLOWN SHOW 🤡 PLAYS ON UNDER BIDEN — ACIJ’S “Exit Interview” By SF Chron’s Tal Kopan Reveals Total Dysfunction, Systemic Abuse Of Human Rights, Waste Of Taxpayer Funds By Stunningly Incompetent DOJ — Other Than A Few Cosmetic Changes, Garland Enables Trump’s Abuses & Uses Barr’s Discredited, Politically & Racially Suspect “Judicial” Hiring Practices, Fails To Establish Due Process, Best Practices, Professionalism, Expertise, Respect For Human Dignity As Overriding Values! — Garland Presides Over “A ‘soul-crushing bureaucracy’ . . . shockingly unlike the regular American legal system.”🤮 Why Is He Ignoring Pressing Need For Progressive Reforms, Due Process Dedicated Judges?

EYORE
“Eyore In Distress” — “Help, help, help, help! I’ve fallen, and I can’t get up!”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

From Tal:

Exclusive: Outgoing SF immigration judge blasts courts as ‘soul-crushing,’ too close to ICE

By Tal Kopan

When William Hanrahan decided to take a job managing the San Francisco immigration court last year, he hoped he could “do some good” by bringing his expertise to resolving the legal morass many U.S. migrants must navigate to stay in the country.

He knew the justice system well. He had spent 20 years as a prosecutor and more than a decade as a state judge, including two years as a chief judge, and taught law on the side for 13 of those years. He’d worked in both criminal and civil law.

But Hanrahan said he encountered a “soul-crushing bureaucracy” that he found shockingly unlike the regular American legal system. After little more than a year in the job, he called it quits this month, frustrated, he said, with a system run by the U.S. Department of Justice and subject to its political whims, a top-down management style that throttled innovation and slow-walked modernizing reforms, and a disconcerting proximity to the Immigration and Customs Enforcement attorneys who act as the court’s prosecutors.

“There needs to be a wholesale reform,” Hanrahan said. “On a daily basis I really felt I was being forced to rearrange the deck chairs on a ship that was going down.”

Hanrahan’s last day as Assistant Chief Immigration Judge was May 7, capping a 14-month tenure as the top manager overseeing the 25 immigration judges and dozens of staff at the San Francisco court. Before that, he was a county assistant district attorney, state assistant attorney general, state circuit court judge and chief circuit court judge during a 30-year career in Wisconsin. He also taught law as an adjunct professor at three Wisconsin colleges and universities.

He spoke with The Chronicle in an exclusive interview about what he said were perplexing management decisions and failures of court administration, exacerbated by seemingly daily “absurdities.” Sitting immigration judges are prohibited by the Justice Department from talking to the press, so Hanrahan’s insights provide a rare account from inside the courts into dysfunction that has long been described by the immigrant advocacy community.

 

More: https://www.sfchronicle.com/politics/article/Exclusive-Outgoing-SF-immigration-judge-blasts-16183235.php

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

Thanks, Tal! Those with SF Chron access should read the full article at the link!

Shocking as this is, it’s no surprise to those of us who have been following the unseemly demise of EOIR and its daily perversions of the basics of due process, human decency, and competent government!

The problems are well documented; the solutions well developed and widely distributed; the experts to fix the system available, mostly from the private sector! There is no need for more “study” and dawdling from Garland!

What is stunning and infuriating is Garland’s abject failure to stand up for human rights, human decency, the rule of law, and to bring in the progressive experts who will shake up this national disgrace from top to bottom, get rid of the deadwood, can the bad rules, vile precedents, and bloated unnecessary bureaucracy, and put some humanity, scholarship, fairness, and professionalism back in this ungodly, deadly, and completely unnecessary mess! 

Not rocket science!🚀 So, why hasn’t Garland gotten the job done?

🗽⚖️🇺🇸Due Process Forever!

PWS

05-17-21

🗽DR. YAEL SCHACHER: The Biden Administration Must Restore The Rule Of Law At The Border — With Recommendations For Action! — Experts Continue To Provide Blueprints For Garland & Mayorkas To Ignore As The Biden Administration Bobbles Chances For Life-Saving, Democracy-Preserving, Racial & Gender Justice Reforms @ EOIR & DHS!

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.refugeesinternational.org/reports/2021/5/11/addressing-the-legacy-of-expedited-removal-border-procedures-and-alternatives-for-reform

Introduction

Though he has already revoked some of the former administration’s highly restrictive policies on asylum, President Biden has thus far left in place an expulsion policy first imposed by the Trump administration under Title 42 of the U.S. Code, and based on the unreasonable assertion that public health requires such restrictive measures be essentially directed at asylum seekers. Ports of entry have remained closed to asylum seekers except to a select few exempted from Title 42 in response to a lawsuit challenging the policy. This month, the Biden administration moved to expand the humanitarian exemption process further, tasking NGOs with identifying vulnerable migrants in Mexico and getting information about them to U.S Customs and Border Protection officials (CBP) in order to speed processing at ports. In addition, since February, Mexico’s refusal to accept back expelled Honduran, Salvadoran, and Guatemalan families with young children has meant that the Border Patrol has released some families and allowed them to proceed to their destinations—often the homes of relatives—to pursue their claims for asylum there. This is currently a practice borne of the necessity of limiting congregate detention during the pandemic. But a return to the pre-existing policy and practice—a border screening process called expedited removal—will recreate long-standing problems, and the Biden administration should now consider alternatives.

Under expedited removal, border officials are tasked with asking migrants who lack valid travel documents about their fear of return to their home country and with referring them to preliminary interviews with asylum officers if they express this fear. U.S. asylum officers assess whether the migrants have “a credible fear” of persecution—that is, a significant possibility of establishing eligibility for asylum. If they fail this interview, they are removed  or remain detained (without real access to counsel) for a review by an immigration judge within seven days. A negative decision by a judge is final and leads to removal. A positive credible fear decision leads the Department of Homeland Security (DHS) to place the asylum seeker in full (non-expedited) proceedings designed to secure the “removal” of unauthorized migrants, and the asylum seeker must then prove to an immigration judge (who works for the Executive Office of Immigration Review in the Department of Justice) that they merit refugee status.

Expedited removal created an entirely “defensive” system—whereby asylum seekers are presumed removable. It is also an adversarial system, and, as applied, has undermined the right to seek asylum at the border and recognition that asylum is a legal pathway to protection regardless of status. For example, prior to a determination of eligibility, U.S. officials have criminally prosecuted those who have sought refuge but have been without travel documents or have entered without inspection. Many arriving asylum seekers get screened out even before credible fear assessments can be made, as they have been unfairly rejected by CBP officers who did not ask them about fear or inform them of their right to seek protection. Those who CBP refer for credible fear interviews are required to show they can meet a complex legal protection standard just after arrival and while detained; those denied at the credible fear stage have inadequate opportunity for appeal. Expedited removal has cut off access to the federal courts for border arriving asylum seekers; as a result, asylum jurisprudence is left to develop without addressing protection issues raised by a large majority of today’s asylum seekers. In practice, expedited removal has limited the ability of Central Americans in particular to obtain access to protection and fair assessments of their asylum claims, and many have been removed to life-threatening danger.

Expedited removal has been justified as a means to promote efficiency in asylum processing. Yet over the last decade, when large numbers of families have come to the border to seek refuge, expedited removal has proven extremely inefficient. President Trump expanded expedited removal—extending its application far beyond the border (anywhere within the United States to anyone present for less than two years without authorization), putting credible fear interviews in the hands of enforcement officers, and raising eligibility standards.

On February 2, 2021, President Biden issued Executive Order 14010 on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” The Executive Order called for a review of the use of expedited removal within 120 days. The Order suggests that the Biden administration intends to implement expedited removal in a way that is more efficient and respectful of due process after the lifting of Title 42. For reasons described in this brief, it is highly questionable that such a system will prove to be fair or even effective and workable. Thus, this issue brief suggests alternative ways the United States can have a fair and efficient system that better fulfills its obligation to provide access to protection at the border. A different reception system at the border is an essential component of a new, comprehensive, protection-oriented approach to migration from Central America.

 

. . . .

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

Read Yael’s full paper at the link.

I think the Administration could and should have taken a much quicker and more aggressive approach to restoring the rule of law at the border. In the more than six months since the election, the Biden Administration could have reached out to the private/NGO sectors, as well as  identifying qualified due process and human rights experts already on the USG payroll, who could have re-established legal asylum screening ART USCIS and reinstituted due process and the rule of law at EOIR while longer term reforms and more permanent personnel recruitments and selections were being made.

Why are brilliant experts like Yael and many others still writing papers and making suggestions (that the Administration insultingly ignores or fobs off) instead of leading from the inside and solving problems on a daily basis? What a waste of brainpower and opportunity for immediate improvment, not to mention the human lives and national values being “flushed down the toilet”🚽  at EOIR and DHS every day! 

Why are inferior “Miller Lite Holdover” candidates, recruited under a badly flawed and much criticized process, being selected by Garland at EOIR, when a potentially far superior and more diverse group of experts from the NDPA could be attracted and hired under a legitimate recruitment process that targets the many underrepresented pools of talent for key jobs at DHS and DOJ?

It is a priority, and it’s not rocket science!🚀 But, it will remain beyond the capabilities or priorities at DOJ and DHS unless or until the Biden Administration brings in some better personnel and experts to solve the problems!

Neither Garland nor Mayorkas has put the “A-Team” in place, despite lots of recommendations that they do so and the pools of far better personnel readily available in the private sector and outside the “Miller-Restrictionist In-Team” that systematically abused and disrespected immigrants’ and human rights over the past four years!

It’s frustrating to watch yet another Dem Administration unnecessarily screw up immigration law and policy. It also costs human lives and undermines the future of our national democracy.☠️⚰️👎🏻

🇺🇸⚖️🗽Due Process Forever!

PWS

05-17-21

⚖️👍🏼😎LAW YOU CAN USE: Professor Geoffrey Hoffman Tells Us How To Use Niz-Chavez v. Garland To Fight DHS/EOIR’s “Fake Date NTA” Travesty!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://lawprofessors.typepad.com/immigration/2021/05/another-twist-on-niz-chavez-by-geoffrey-hoffman.html

Geoffrey writes on ImmigrationProf Blog:

Geoffrey Hoffman previously has blogged about the recent Supreme Court decision in Niz-Chavez v. Garland.  Here is the sequel.

Another Twist on Niz-Chavez . . . by Geoffrey Hoffman

A fascinating twist on the factual scenario in Niz-Chavez is what to do if your client had an NTA with a so-called “fake date.” The “fake date” problem is one you will remember well if you practice immigration law before EOIR, and it garnered national attention in 2019 when ICE issued these fake dates for thousands of immigrants, many of whom showed up in court only to find that there was nothing on any judge’s docket to indicate they were scheduled for a hearing that day.  Reports of fake dates were prevalent in Dallas, Orlando, Miami, Seattle, and I am sure other places as well. See news articles such as this one. In addition, and as a separate matter, there was a well-known so-called “parking date” (November 29) issued on thousands of NTAs and that was also never a “real date” as everyone knew.

There is an interesting theory about why the “fake dates” were issued in the first place:  that the government was trying to respond to Pereira v. Sessions itself.  Despite its argument in federal court to try to restrict Pereira as much as possible, in practice ICE tacitly was affirming, so the argument goes, that in Pereira the Supreme Court had defined, as we have argued all along, what is and what is not a proper and valid NTA. In an effort to immunize itself from responsibility for defective NTAs without any time or place of hearing, ICE thought it might make sense to input “fake dates” in their NTAs, thus (at least superficially it would seem) immunizing itself from the argument that the NTAs were defective for “lack” of a real date and place. Then the “real date” – according to the argument – could be issued as a follow-up in the form of a notice of hearing by EOIR.

The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes” – and I will discuss in the rest of this article why this should be the case and why it should not come as a surprise for several reasons.

It is arguably a much stronger case for the application of Niz-Chavez because the issuance of a “fake date” that was never intended to be used by EOIR in any way is affirmatively wrong. It is not just mere negligence by leaving “TBA” with a blank date and place of hearing on the NTA.  ICE should not be able to hide behind an NTA where the information is filled in on the NTA but the information is patently false and made up or fabricated.  Just as an asylum seeker who fabricates a date or other information on their forms cannot benefit from such information in applying for relief before the court, the government should get no benefit either from their incorrect and misleading actions.  The counter-argument from the government will be that the NTA was valid “on its face” since it had some “date and place” in the document and therefore (a) stopped time for cancellation purposes and (b) conferred jurisdiction because it was “facially” valid.

This counter-argument is flawed. To embrace such a rationale would exalt form over substance. It also would allow an agency to game the system. It would also defeat the very mechanism that the Supreme Court set out in Pereira and now Niz-Chavez. Respondent should be entitled to reopen their proceedings in all “fake date” cases since a valid NTA was not filed in the immigration court.  The only remaining issue will be proof.  The respondent and his or her attorney will have to prove there was no hearing that was actually held on that day. If no hearing existed at all, then the stop time rule should not apply and the fake NTA cannot be “cured” by a subsequently issued notice by a different agency, that is EOIR, as per Niz-Chavez.

Finally, in reopening a client’s case it would be helpful  if there were  a showing of some effort on the part the respondent to check.  Proof may be difficult and EOIR FOIA and other investigation will be important. Ideally, the client or the their attorney or both went to court but no hearing was on the docket that day, and there was an effort to check that was documented in some way. If there never was receipt of the NTA at all, whether containing a fake date or not, and an in absentia order was issued, then the question becomes whether jurisdiction could have vested at all in such a case.  As I have argued, if the NTA is defective it cannot result in the vesting of jurisdiction. A fake date and place arguably cannot confer jurisdiction, even if the NTA was filed with the court.  Since there was no hearing actually scheduled the NTA should be found defective under Pereira and Niz-Chavez.

K[evin] J[ohnson]

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

Sure sounds to me like ‘affirmative misconduct” by the USG that should stop them from relying on the “fake dates. In the “old days,” INS actually used to settle potential “affirmative misconduct” cases, rather than litigate.

By contrast, today’s DOJ seems perfectly willing shamelessly to defend a wide range of legally and ethically questionable conduct and then “blow off” criticism from the Article III Judiciary. Recently, a frustrated U.S. District Judge referred to Bureau of Prisons officials as “idiots.”

One might have thought that would have spurred some type of apology and corrective action from the DOJ. But, that doesn’t seem to have registered with Garland. He just keeps rolling along with Barr’s “Miller Lite” appointments while dissing advice from progressives who actually helped put him in his current job. About the only thing you can count on from Dems is that when it comes to progressive immigraton reforms and EOIR, they’ll blow it!

Thanks, Geoffrey, for your timely and creative “practical scholarship.” Of course with better leadership, the Biden Administration could solve this problem without protracted litigation that often takes years and produces inconsistent results before the Supremes or Congress can resolve them. In the meantime, lives unnecessarily are ruined and the system becomes more inefficient and unfair.

Garland should appoint progressive practical scholars like Geoffrey to the BIA and senior management at EOIR, OIL, OLP, and the SG’s Office and let them “lead from above” — rather than having to fight bad interpretations and worst practices from the outside. 

In this case, the DHS/EOIR “fake date policy” was both fraudulent and unethical. Remember that some folks actually showed up at Immigration Court buildings, often with families in tow, after having traveled hundreds of miles, @ 3:00 AM on Sunday mornings (or on a Federal Holiday or some other bogus date) only to find out that the “joke” was on them.

And, let’s not forget folks, that thanks to the BIA’s permissive attitude (when it comes to the Government, but not with individual rights), under the now “being phased out” “Remain in Mexico Program” (a/k/a “let “em Die In Mexico”), folks basically got NTAs with the equivalent of this: “Maria Gomez, somewhere on some Calle in Tijuana, Mexico.” But, the BIA said that  this was basically “good enough for Government work.”

We should also remember that the Fifth Amendment’s Due Process Clause guarantees the individual’s rights against the Government, not the other way around! But, you sure wouldn’t know that from reading BIA and AG precedents issued under the Trump kakistocracy.

Meanwhile, IJs and the BIA under Garland continue to “in absentia” folks for being a few minutes late for a hearing or misreading an NTA in a language they can’t understand. Anybody had a problem with their U.S. Mail lately? We have, in our “upper middle class neighborhood” in Alexandria, VA. Yet, EOIR and some Article IIIs continue to promote the “legal fiction” of a “presumption of proper (and timely) delivery” of notices sent by regular U.S. Mail.

Until, Garland has the backbone to restore ethics and the rule of law at EOIR and the rest of the DOJ, particularly by reassigning or otherwise removing those who “went along to get along” and replacing them with ethical, qualified, experts from the NDPA who will speak truth to power and hold immigration enforcement bureaucrats accountable, our justice system will continue its tailspin!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

O5-15-21

UNCONFIRMED, BUT “ON THE STREET” — TOTAL INSANITY? — Heard On The “Rumor Mill” — Unconfirmed Reports That Garland Is About To Appoint Trump Tea Party Politico To Top Judicial Post In NYC!

Was this guy

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

Really this guy

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

In disguise all along?

An anonymous source reports:

As a follow-up to the recent IJ appointments, I thought you might be interested to know that Anna Little is rumored to be the new ACIJ in NYC. I haven’t seen that officially, though, so you would need to confirm before posting about it (and you didn’t hear it from me). I honestly know nothing about her and she might be great, but there’s a little concern given that she was appointed as an IJ by Trump just two years ago, has never worked as an IJ at a NY court, and apparently was a Tea Party political candidate.

 

https://newjerseyglobe.com/national/report-trump-administration-names-anna-little-nj-tea-party-favorite-as-u-s-immigration-judge/

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

Normally, I’d say that this is far, far too insane to be true, even in a Dem Administration! But, given Garland’s incredibly abysmal performance so far at DOJ, I can’t completely rule it out.

Progressives who helped Biden get his job need to start demanding better from this Administration. If true, and I personally don’t want to believe it, this should call into question Garland’s continued tenure @ Justice!

What kind of “Dem” Administration promotes GOP Tea Partiers as judges over better qualified progressive candidates?

True or not, the fact that this rumor is even out there shows a dramatic loss of confidence by progressive Dems in Garland in an amazingly short amount of time! It’s basically the equivalent of a rumor that Joe Biden intends to name Kevin McCarthy as his Chief of Staff. And, where, oh where, is Vice President Harris as Garland is totally undermining the Administration and grotesquely failing to reverse the course of injustice @  Trump’s broken and corrupt “Justice” Department?

We all know who won the 2020:election. So, why is Stephen Miller apparently still in charge of the DOJ?

🇺🇸⚖️🗽Due Process Forever!

PWS

05-13-21

🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Stephen Legomsky
Professor Stephen H. Legomsky
Emeritus Professor of Law & Former USG Senior Executive
Washington U. Law
PHOTO: Washington U. Law website

 

https://thehill.com/opinion/immigration/552539-one-quick-asylum-fix-how-garland-can-help-domestic-violence-survivors

Karen & Steve write in The Hill:

With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.

On the campaign trail Joe Biden pledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.

But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.

How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts.

The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.

. . . .

One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.

Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.

Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.

. . . .

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

Woman Tortured
Tortured & abused refugee women’s lives continue to hang in the balance while Judge Garland diddles and runs “Miller Lite Judicial Selection Happy Hour” at failing DOJ!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read the complete op-ed at the link.

If the current BIA were replaced with competent, expert, progressive, due-process oriented judges tomorrow, as should have happened months ago, this problem could be solved immediately.

I have no doubt that with real asylum experts like Karen as appellate judges at the BIA, Matter of A-B- would rapidly be turned into a blueprint for efficiently granting needed protection to persecuted women. It would also serve as a much needed tool for ending the “asylum free zones” unethically and unprofessionally established by some Immigration Judges throughout the country and starting the long overdue process for removing those unqualified Immigration Judges who are unable or unwilling to fairly grant asylum to qualified applicants and who have created an unacceptable anti-asylum, racist, misogynist culture in some parts of EOIR, in other words the “95% denial club” needs to go! Now!

Disgracefully, that culture was actually encouraged and rewarded by White Nationalist political hacks like Sessions and Barr — folks who never, ever should have had any role in asylum adjudication in America, let alone been permitted to unethically act as “judges” in cases they had “pre-decided” on a mass basis! “Fair and impartial adjudicator,” the core of American constitutional due process, became a sick joke under Sessions and Barr as the Supremes and many Article IIIs disgracefully and spinelessly looked the other way. And, Garland has done nothing to effectively address or reverse this toxic, anti-due-process, racist, misogynist “culture” despite having been told by experts that it was an emergency that could not wait!

Karen and Steve also point out how the BIA disintegrated from a tribunal that was supposed to guarantee fairness and due process for migrants, implement best judicial practices, and protect the most vulnerable from Government overreach into a tool and weapon of DHS enforcement! Yet, 100 days into the Biden Administration, BIA appellate judges who “toadied up” to the Trump regime’s White Nationalist agenda and aided “Dred Scottification” of “the other” by Stephen MIller remain, and experts who should have replaced them remain “on the outside looking in.” 

If the Biden Administration and Garland are incapable of putting diverse, qualified progressive experts into a judiciary that they actually control, what are the prospects for progressive transformation of the Article IIIs? That makes this week’s disclosure that Garland mindlessly appointed 17  “Miller Lite” Immigration Judges left over from Barr’s flawed recruitment and scummy tenure instead of properly using these valuable positions to start building a long overdue progressive, expert judiciary at EOIR all the more infuriating and outrageous!

The unmitigated, entirely unnecessary, and potentially solvable due process disaster at EOIR will prevent any meaningful progressive immigraton reforms, whether by legislation or Executive action! It’s also undermines racial justice, threatens the future of American justice, and undermines our democracy every day that it festers away, unaddressed. 

Garland must fix this problem starting now! Reassigning the 17 judges who should not have been hired and are still in probation, re-competing their positions under merit criteria that encourage applications from all sources and promote diversity, and cancelling the ridiculous plans for the unneeded, due process denying Richmond Adjudication Center (“Star Chamber”) should be just the start. 

Star Chamber Justice
“It’s a long way to Richmond,” as country singer Travis Tritt would say!

“Unit Chief Immigration Judges” are needed like a hole in the head, probably less. They were a bogus idea cooked up by now deposed former Director McHenry to aid in his misguided union busting initiative. What is needed is less bogus judicial supervision (whoever heard of qualified judges needing “supervisors”) and the accompanying time and resource wasting gimmicks, better professional judicial management, and more competent, progressive, independent, expert immigration judges with experience representing asylum applicants and other immigrants in Immigration Courts and judges with NGO and clinical experience who actually know how to manage dockets and solve problems — skills that are in perilously short supply at EOIR.

Garland needs to replace the “gang that can’t shoot straight” @ DOJ and EOIR with some progressive experts and let them start fixing problems and knocking heads of those still stuck in the Sessions/Barr era! Some of us believe that elections should have consequences. Among those is the immediate end of “Miller Lite Justice @ Justice” and the type of promised due process reforms that got Biden and Harris elected in the first place!

Miller Lite
“Miller Lite Justice Hour” is over at DOJ — It’s time for Garland to get on the ball and install progressive judges, competent administrators, and long overdue progressive due process reforms at EOIR — America’s worst and most grotesquely dysfunctional “courts,” that don’t operate as courts at all and which daily destroy the lives of refugee women and other migrants!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-09-21

🇺🇸⚖️🗽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

⚖️HON. “SIR JEFFREY” S. CHASE SPEAKS OUT ON GARLAND’S TONE-DEAF, ANTI-PROGRESSIVE, SLAP IN THE FACE TO IMMIGRATION EXPERTS! — Garland, Who Lived His Life In Privileged “Ivory Tower” Positions Thinks Those Serving In The Trenches Who Actually Know What’s Wrong With American Justice & Live It Every Day Aren’t Important & Don’t Count! — He’ll Blow You Off Until You Yank His Chain!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Alyssa Aquino
Alyssa Aquino
Immigration Reporter
Law360
PHOTO: LinkedIn

17 New Immigration Judges Largely Held Prior Gov’t Roles – Law360

From an article by Alyssa Aquino @ Law360:

. . . .

However, former immigration judge and current private attorney Jeffrey Chase raised concerns over the apparent speed of the appointments. Immigration law and its administration changed vastly under former President Donald Trump, whose attorneys general used their self-referral powers to issue precedents that, in some cases, restricted the number of people who can qualify for asylum. The Justice Department has also curbed immigration judges’ discretionary powers, such as their ability to administratively close or continue cases, and instituted case completion quotas.

“If you’re looking at this whole system, shouldn’t you put your hirings on hold until you actually figure out your whole needs, how to train them and what law will apply to them?” Chase said.

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

Some seem to “fob off” these “Miller/Barr leftover” picks as just “in the pipeline!” I call BS! 

EYORE
Judge Garland to EYORE: “And you thought I was going to help you get back on your feet! Fool! It “Miller Lite” time @ EOIR! Progressives and due process warriors need not apply!”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Garland has conducted more “outreach” to “Trumpist holdovers” than he has to progressive advocates and the NDPA! Was this election really about giving Garland a chance to continue the Miller, Sessions, Barr White Nationalist, misogynist, anti-asylum, anti-due-process, anti-private-bar regime @ the EOIR Clown Courts under Dem auspices?

You have no right to a Federal job until you take the oath and actually begin work. And that goes for fake “Billy Barr” and absurd “Monty Python” Wilkinson appointments too, unless these folks were in their judicial positions prior to the November elections. 

I know because I actually lived through “hiring freezes” in the Reagan and Carter Administrations. Reagan even cancelled all Federal job offers retroactively to the date of his election on Nov. 5, 1980. And, he got away with it! His action was upheld by a Federal Court even in cases of those who had moved, quit jobs, or made other arrangements in reliance on their offers of Federal employment. https://www.washingtonpost.com/archive/politics/1981/02/26/job-freeze-by-reagan-is-upheld/6ee18e32-b8bf-4fdd-90f1-7180c2cafd9d/?no_nav=true&tid=a_classic-iphone. 

IJs are classified as DOJ attorneys in the “excepted service.” They actually have fewer rights than most of those selected under the civil service competitive system who had job offers retroactively withdrawn by Reagan.

As far as I can tell from the EOIR release, whatever the gobbledygook about “Barr,” “Monty Python,” or “Garland” “appointments,” it appears that none of these folks actually entered onto duty in their judicial jobs until April, well after Biden’s inauguration and well after the election was decided. It was even after Garland’s swearing in. 

Indeed, the “delayed announcement” confirms that the Garland folks knew they were screwing over progressives and individuals caught in the EOIR web of dysfunction and disrespect and were hoping to “slip this in under the radar screen.” Usually, the DOJ can’t wait to tout their new “judicial” hires at EOIR!

Given the mountains of criticism from progressives about the composition of the Immigration Judiciary under Sessions and Barr, the clear efforts by them to redesign the IJ job so that it would be unattractive to most minority attorneys, experts, and due process activists, and the intentional lack of recruitment outreach to “underrepresented communities” of lawyers (basically minority lawyers), there is no excuse for Garland’s actions! These lists were tainted!

Moreover, the Biden Transition Team knew that progressive experts recommended “sea changes” in judicial recruitment, hiring, and training at EOIR and that even those already in EOIR judicial positions under Trump be carefully re-examined under “merit criteria” as to their suitability for judicial positions and their demonstrated commitment to due process for migrants and respect for attorneys. 

Additionally, all newly appointed EOIR “judges” serve a two-year probationary period during which they basically can be terminated “at will” by the AG. Even those with limited “tenure” can be transferred out of their judicial positions and moved to other jobs, as those of us “purged” from the BIA by Ashcroft for political reasons can attest. Not only was it totally inappropriate for Garland to go ahead with these “Miller Lite” hires, but he and his team should re-compete the positions of all Barr probationary appointments under revised merit criteria designed to attract a wider, more diverse, and more qualified group of applicants. 

These are NOT life-tenured appointments! At most, “probationary judges” who fail to achieve merit reappointment and were previously Federal employees might be entitled to a reassignment to another government attorney position (not necessarily an adjudicator position) at the same pay level. That’s essentially what happened to those of us “purged” from the BIA by Ashcroft in 2003. We were’t even invited to apply for or interviewed for our own jobs! The whole process was done without application of any “merit principles” whatsoever! 

The process under which these 17 were selected was intentionally designed to exclude progressives, minorities, and other experts who would be committed as judges to upholding due process and the legal rights of asylum seekers and other migrants! Garland’s message is clear: Immigration expertise, experience representing individuals in Immigration Court, and commitment to enforcing due process and holding ICE accountable DON’T COUNT!

Republicans play “hardball.” Garland, like Dems before him, is a wimp!

Here are the “stats” that should stand out to NDPA members for these 17 tainted “judicial selections:”

Number of known AILA members: 0 (maybe 1)

Number of clinical professors: 0

Number of human rights experts: 0

Number of noted immigration, human rights, immigration scholars: 0

Number of NGO attorneys: 0

Number who represented an individual in Immigration Court in past year: unknown, but max of 2

Number who have been involved in advocating for positive immigration reform: 0

Number who would appear on any list of the “top 100 immigration experts in America:” 0

Number who have won awards for pro bono litigation representing migrants during last 4 years:  0

Number with recently published immigration scholarship: 0

Number with experience administering major pro bono programs: 0

Number with recent community service awards: 0

Number involved with Round Table amicus briefing efforts: 0 

Number who have appeared in video training sessions for immigration advocates in past year: 0

Number who have authored or contributed to “white papers” on improving due process in Immigration Court: 0

Number who applied under “Trump-era” announcements and procedures: 17

Number of progressive judges confirmed and sitting on Article III Courts under Biden: 0

Number of progressive Immigration Judges appointed under Biden: 0

Number of regressive Immigration Judges appointed under Biden: 17

17 Immigration Judges are NOT going to make a statistical difference in eliminating or reducing a largely self-created 1.3 million cases backlog! But, they will make a huge difference in the lives of individuals and their lawyers caught up in this designed to fail system. Moreover, initial appointments set a tone. 

Additionally, as already pointed out by others, Garland’s continued staffing of “Miller Lite Star Chambers” like the unnecessary and due process denying “Richmond VTC ‘Court’” — without any discussion with stakeholders and advocacy groups who have unanimously opposed it — is a total disgrace!

Folks in the NDPA, Garland is sending you a message: GO POUND SAND! I CARE MORE ABOUT “HUMORING” THOSE SELECTED BY STEPHEN MILLER, BILLY BARR, & “MONTY PYTHON” THAN I DO ABOUT YOU, YOUR EXPERTISE, AND THE HUMANS YOU REPRESENT! AND, I FULLY INTEND TO SUBJECT YOU AND YOUR CLIENTS TO THE SAME “DUE PROCESS DENYING, DEMEANING VTC STAR CHAMBERS” THAT THE TRUMP ADMINISTRATION DESIGNED, OVER YOUR OBJECTIONS, TO KEEP THE “EOIR DEPORTATION RAILROAD RUNNING!”

Heck, I’m retired. But, if I were out there in the trenches like most of the members of the NDPA, I’d take this personally, as exactly the insult and put down by Garland that it is and react accordingly. After eight years of Bushie political hacks, eight years of Obama’s indolent approach to EOIR, four years of “Gonzo” Sessions, Whitaker, “Billy the Bigot,” and “Monty Python” we deserve better! 

It’s up to you to get energized, get mad, get even, and force Garland and his outrageous “Star Chamber Courts” to their knees! Because if you’re waiting for him to “wake up and get religion on EOIR,” read your letters, act on your “white papers,” respect your achievements, or treat your clients as humans, you’ll be waiting in vain!

Star Chamber Justice
“Judge Garland loves what we do here in the VTC! He wants us to expand! This kind of ‘judging’ gets the quickest results! And, you don’t need to know any immigration law!”

🇺🇸🗽🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-08-21

😎🗽👍⚖️FINALLY, SOME GOOD NEWS FROM THE EOIR TOWER! — Trump “Burrower” 🤮👎 Carl C. Risch Out As Deputy Director!

By Paul Wickham Schmidt

Courtside Exclusive

May 7, 2021

Hamed Aleaziz @ BuzzFeed News tweeted https://twitter.com/Haleaziz/status/1390724674825326593?s=20 this afternoon that “Trump burrower” Carl C. Risch has resigned as Deputy Director @ EOIR. This move fulfills a prediction made earlier this week by Courtside source “DT-21.” https://immigrationcourtside.com/2021/05/05/🤮👎🏻shocking-betrayal-justice-garland-disses-progressive-experts-with-secret-appointments-of-17-unqualified-immigration-judges-n/

It follows an inquiry from Senate Judiciary Chair Senator Dick Durbin (D-IL) and others to the Garland DOJ about the much-criticized and obviously questionable last minute appointment of the former DOS politico to a SES job at EOIR. Chairman Durbin, in turn, was no doubt spurred into action by complaints from members of the NDPA and others in the due process advocacy community. https://immigrationcourtside.com/2021/04/20/⚖%EF%B8%8Fas-garland-dawdles-chairman-dick-durban-d-il-homes-in-on-eoir-deputy-director-illegally-appointed-burrower-carl-c-risch-what-should-have-b/

Risch’s last-minute appointment at EOIR was particularly egregious, since he had no known Immigration Court experience. EOIR currently is in an existential crisis that threatens to topple the entire U.S. Justice System, with a highly politicized “judiciary” and an astounding, largely self-inflicted 1.3 million case backlog.

That  backlog multiplied much faster than the additional Immigration Judges that Sessions and Barr used to “pack” the Immigration Courts with restrictionists and judges sympathetic to ICE enforcdement and often hostile to asylum seekers and their lawyers. As many experts have observed, the Trump era hires often had highly questionable judicial qualifications, many lacking any immigration law expertise or experience. Perhaps, that’s a reason why the backlog continued to grow exponentially even as Sessions and Barr tried gimmick after gimmick, a number of them blatantly illegal and enjoined by Federal Courts, to cut corners and “rev up” the “Trump Deportation Railroad @ EOIR.”

Obviously, throwing an unqualified political hack like Risch into this mess in a senior “management” position was just another example of the Trump Administration’s abuse of government resources and manipulation of personnel practices @ DOJ. It took some time for Judge Garland to get this one right. But, better late than never.

However encouraging the news of Risch’s departure might be, there is still much more “housecleaning” to be done by Garland at the EOIR Tower. That should start with BIA Chair David Wetmore, a Stephen Miller/Gene Hamilton crony with no positive reputation for scholarship or expertise in the immigration/human rights community and no known experience representing asylum seekers or other migrants in Immigration Court.

It’s little wonder that with “appellate judges” who have earned little respect in the legal community at large comprising the BIA, the system is a mess, turning out poor work product and elementary errors, “outed” by the Article IIIs on a regular basis.

Due Process Forever!

 

PWS

05-07-21

 

THE PROBLEM WITH JUSTICE @ JUSTICE, IN A NUTSHELL — Super-Talented Houston Immigration Lawyer Elizabeth J. Mendoza Knows Exactly What’s Wrong @ EOIR & Succinctly Tells Us How To Fix It In This Paper Published By The Baker Institute For Public Policy @ Rice University — So Just Why Are Elizabeth & Other NDPA Talents Like Her Writing Papers, Drafting Letters (Likely To Be Ignored), & Filing Lawsuits Against Garland While Chaos & Incompetence Reigns @ EOIR & Garland Appoints 17 Absurdly Lesser Qualified Individuals Selected By Barr/Miller As His “Initial Class Of IJs?”   

Elizabeth M. Mendoza
Elizabeth M. Mendoza, Esq.
Immigration Lawyer
Houston, Texas
Photo: Mendoza Law website

https://www.bakerinstitute.org/media/files/files/42f91a4a/usmx-pub-imm-courts-042721.pdf?fbclid=IwAR3XtP7RfPzZsIfo-OLH3nmAWDDZvjHaPZiZMYXLVWlIGYo9ymcc-KD5IUs

Excerpts from “A New Opportunity to Build a 21st-Century Immigration Court System” by Elizabeth M. Mendoza:

This lack of judicial independence, along with heavy dockets and the vulnerability of the EOIR to the political influence of the administration in power, has created the crisis we have today. It also presents the Biden-Harris administration with the opportunity to course-correct and put the EOIR on a path to effectively, nimbly, and fairly navigate the 21st century and beyond. 

. . . .

Immigration judges need to be able to manage their dockets. A practical tool to help them do so is the use of administrative closure. This tool allows judges to “freeze” cases, or make them inactive, at their discretion or when requested to do so by the UP or the Department of Homeland Security. The case remains in the court system under the control of the immigration judge, but it is not on an active docket requiring hearings in court. This tool is commonly used when the UP has a petition pending with another agency, usually Citizenship and Immigration Services (CIS), that if approved would allow the UP to apply for permanent residency in court or with CIS. Through administrative closure, the judge can put the UP’s case on inactive status, allowing the UP to process the petition with another agency. This allows the judge to free up docket slots for other cases and thereby process more cases that do not have collateral relief or are higher priority.

. . . .

It is against this backdrop that the EOIR currently uses quotas. The quota metric imposed by the last presidential administration does little to promote a fair, nimble, effective court system. It is a policy that should be rescinded as soon as possible.

. . . .

Certifying cases without transparency or regard to the reality of the immigration situation at our borders, in our communities, and in the EOIR system itself does not engender confidence that the EOIR is independent. Indeed, case certification is the antithesis of an immigration judge’s judicial independence. And, while an administration may be tempted to use the certification tool to achieve its political and policy goals, it is not appropriate within the judicial context unless it is used to undo precedents clearly at odds with statutes, regulations, or congressional intent.

. . . .

With over 1 million cases pending in its system, the EOIR cannot continue down this path. It should institute reasonable, practical, real-world solutions to manage its docket and afford due process and fairness to those who come before it presenting their cases for relief.

. . . .

The EOIR must be effective, nimble, and fair. The Biden-Harris administration has all the tools at its disposal to recreate an EOIR that embodies these traits. It will require a thoughtful approach, competent management, consistent policy deployment, and transparency to achieve these goals. The last four years saw numerous policy and regulatory changes to the EOIR that fundamentally changed the focus of the immigration court system into what could be considered a “deportation machine.” As noted earlier, the EOIR is a civil court system housed inside a law enforcement agency. It is not an independent court.

. . . .

The people who appear before the EOIR deserve a well-functioning court system. Our communities deserve a court system that promptly adjudicates the cases of bad actors so they can be quickly removed. And our nation deserves an EOIR that reflects the best of American principles—that all people are equal under the law.

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“Nimble” certainly isn’t a word I’ve ever used to describe EOIR. But, it shows exactly why new thinking and dynamic creative leadership is required @ DOJ and EOIR. And, Elizabeth and others are more than ready to provide it! I just don’t think anyone asked them to come on board.

Something I learned as a Senior Executive in the Government and in private practice: If you want to change the composition of your workforce and attract the”best and the brightest” you must ACTIVELY recruit! It’s also something that I learned from rebuilding the Legacy INS legal program under General Counsel Maurice C. “Iron Mike” Inman, Jr.

Mike told me to treat every law school appearance, public speech, CLE, bar luncheon, or training session as a “recruitment opportunity” and never, never to rely solely on the “USG system” for getting out the word to the folks we wanted to reach to improve our program and provide better legal services to the Commissioner. He also insisted that I deliver that message to each member of our senior legal staff: every engagement was a potential selling and recruiting opportunity!

So, here’s Elizabeth’s “resume” —

About Attorney Elizabeth M. Mendoza

Attorney Elizabeth M. Mendoza practices exclusively immigration law since 1993. She is a graduate of Rice University and the University of Houston Law Center.

 

Attorney Mendoza represents immigrants and their families in family-based immigration, removal defense in immigration court (asylum, CAT, withholding of removal, cancellation of removal, voluntary departure), appeals and motions, consular processing, waivers, citizenship, work permits, TPS, NACARA, VAWA, U and T visas, Deferred Action, widow\er petitions, removal of conditionals of residency, and renewals of residency card.

 

For over two decades Attorney Mendoza has provided pro bono legal assistance to non-profit organizations throughout the Houston area, such as Catholic Charities. She volunteered at Bush Airport in Houston, Texas to assist travelers affected by the travel ban. Attorney Mendoza volunteered in Matamoros, Mexico in a camp along the Rio Grande helping asylum seekers.

 

Committed to supporting fair and just immigration laws, Attorney Mendoza has lobbied at the Texas capitol and in Washington, D.C. for comprehensive immigration legislation.

 

Advocating for immigrants and their families, Attorney Mendoza is a frequent speaker at community know your rights talks in churches and schools.

 

Attorney Mendoza is a speaker at workshops for the University of Houston Law Center and the state bar of Texas where she presents to colleagues about different immigration law topics.

 

Currently, Attorney Mendoza serves as the liaison to immigration courts (Executive Office for Immigration Review) in the Houston area on behalf of the American Immigration Lawyers Association (AILA).

 

Attorney Mendoza is licensed by the state bar of Texas since 1993. She is a member of the American Immigration Lawyers Association since 1996.

So, here’s someone who not only has intellectual brilliance, comprehensive knowledge of immigration, human rights, and due process, organizational skills, presentation and writing skills, creativity, and demonstrated leadership and inspirational mentoring ability, but has actually used them to represent individuals in Immigration Court and to solve real life problems!
Everything a real judge or a competent judicial administrator should be!

Compare Elizabeth’s qualifications and background with the ridiculously thin qualifications of the “Miller Lite Holdover Gang of 17” that Garland had the audacity to announce publicly yesterday! (Only after “DT-21,” Kowalski, and I “outed” the sordid story.) You can’t compare them because there is no comparison! Elizabeth and other NDPA superstars are the folks we need in charge of EOIR, replacing the existing BIA, and on the Immigration Bench across the country. And, they aren’t hiding under rocks!

For obvious reasons many exceptionally well qualified practical scholars and advocates did not apply for largely fraudulent Immigration “Judgeships” that were more like “Deportation Clerkships” operating under a scofflaw, unethical, xenophobic, racist, misogynistic Trump DOJ.

For Pete’s sake, this is a life or death court system, not a stupid bureaucracy! It’s up to folks like Garland to actively recruit the “best and brightest” from the private sector, NGOs, academia, and minority communities to build a diverse, progressive judiciary that eventually will model “best judicial practices” and “feed” the Article IIIs “battle tested” judicial talent unswervingly committed to due process and equal justice for all. 

Part of that is “repackaging and reinventing” these jobs as independent judgeships, with good working conditions, adequate support, no political interference, and where courage, integrity, and top flight scholarship in pursuit of due process, fundamental fairness, and equal justice for all will be encouraged, respected, and honored! In simple terms, “more Elizabeth Mendozas.” It’s also why all “recruitments” conducted under the Trump DOJ should be considered tainted and inherently suspect!

🇺🇸👩🏽‍⚖️🗽⚖️Due Process Forever!

PWS

05-07-21

PROFESSOR GEOFFREY HOFFMAN: This Is Progressive Liberalism? — Scofflaw Biden Administration Continues To Use Illegal Trump Subterfuge To Close Borders To Asylum Seekers (Disproportionately People Of Color) As AG Garland Looks The Other Way!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://www.texasstandard.org/stories/advocates-say-continued-use-of-title-42-to-exclude-most-asylum-seekers-from-the-us-discriminates-against-them/

From the Texas Standard:

The Biden administration’s approach to the border and immigration has been heavily criticized. With Trump-era policies still in place, some advocates object to the way the rules are being enforced right now, specifically a provision known as Title 42.

Geoffrey Hoffman is a clinical professor and director of the immigration clinic at the University of Houston Law Center. Hoffman told Texas Standard that Title 42 authorizes the surgeon general to suspend immigration into the United States on public health grounds. It has been on the books since the 1940s, and though Title 42 has been evoked several times, its use increased significantly during the Trump administration.

“Back in March of 2020, the Trump administration used Title 42 to curtail, basically, entry of almost everyone from the Mexican border coming in to try to seek asylum,” Hoffman said. “And so that was a very, very big impact on those people.”

Hoffman says 600,000 people have been expelled from the country under Title 42.

Immigration advocates say Title 42 is being used as an “end run” around laws allowing asylum-seekers to enter the United States and pursue their claims.

“The issue is really that it’s being used at the land border in Mexico and Canada, and not through other entries. So it’s been seen as being discriminatory, and a racial-justice issue,” Hoffman said.

The Biden administration has continued to use Title 42, carving out an exception for unaccompanied minors who are being allowed into the country to pursue asylum claims. Some immigration advocates say applying Title 42 differently to different populations should be ended.

“You have Title 42 being used, according to immigration advocates, as a pretext,” Hoffman said. “It’s a pretext to prevent people who are otherwise legitimately seeking asylum, preventing them from seeking that relief.”

Hoffman says the United States has an obligation under the nation’s own laws, and under international law, to provide a means by which asylum-seekers can make their claims. Forcing migrants out of the country without a hearing, under Title 42, violates those laws, he says.

If you found the reporting above valuable, please consider making a donation to support it here. Your gift helps pay for everything you find on texasstandard.org and KUT.org. Thanks for donating today.

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Remember how Jeff “Gonzo Apocalypto” Sessions was never shy about intervening in matters outside his agency jurisdiction, like child separation and DACA, when it fit his White Nationalist political agenda?

But, Judge Garland has not only failed to restore an operating legal asylum system @ EOIR, but also has stood by and watched while DHS daily commits gross violations of international, constitutional, and statutory law — violations that threaten life and safety — under a pretext carried over from the Trumpists. 

Significantly, a U.S. District Judge in D.C. recently ruled that:

It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” she continued. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.

This rationale appears equally applicable to CDC’s legal authority to suspend international conventions, asylum statutes, immigration laws, and  constitutional due process on a cosmic scale as pretext for ending our legal asylum system without passing legislation!

https://www.cnn.com/2021/05/05/politics/cdc-moratorium-evictions/index.html

Sure, there are problems at the border. But, the solution is to:

  • restore legal screening at the ports of entry;
  • reinstate a fair and robust legal asylum process using more trained Asylum Officers and better Immigration Judges — progressive experts in asylum law (NOT like the “gang of 17” same old, same old “bureaucratic retreads” the tone-deaf Judge Garland just put on the bench);
  • repeal of the Sessions/Barr anti-asylum precedents and replacing the BIA with judges who are asylum experts;
  • creating more opportunities for legal immigration for both refugees and needed workers;
  • enlisting the support of the UNHCR, NGOs, religious organizations, universities, and local governments to aid in the processing, representation, and resettlement of asylum seekers; and
  • slashing artificial and unnecessary Immigration Court backlogs to allow qualified expert Immigration Judges to adjudicate on a “real time” basis represented asylum cases that can’t quickly be granted at the Asylum Office and to establish some positive precedents in asylum law to govern and guide practitioners, Immigration Judges, and Asylum Officers.

It’s not rocket science. But, it very clearly is beyond the capability of Mayorkas, Garland, and the other folks Biden has put in charge of the Administration’s immigration policies. There are folks out there who can do the job — Professor Hoffman is just one of many.

The responsible positions necessary to reform, restore, and revitalize our nation’s refugee, asylum, and immigration laws are mostly at the sub-cabinet level, not requiring Senate confirmation. EOIR is a prime example of a great opportunity for progressive change being inexplicably squandered by Garland and his clueless lieutenants. What is important, and has been conspicuously absent from Biden immigration policies to date, is some inspired leadership and enlightened personnel choices from Mayorkas, Garland, and Becerra.

For example, Jeff “Gonzo Apocalypto” Sessions had no hesitation about spreading false narratives about asylum seekers, demeaning their humanity, disrespecting their hard-working attorneys, and encouraging “his” judges to deny more cases (particularly those involving women of color), and to elevate productivity, cutting corners, and obedience to his policies over quality, fairness, due process, and protecting the legal rights of asylum seekers and other immigrants from DHS overreach.

But, what inspiring statement has Judge Garland made about the necessity of making adherence to fundamental fairness, due process, best practices, quasi-judicial independence, and humane treatment of all respondents the touchstone of EOIR? What visible appointments of widely respected practical scholars and human rights experts has he made in EOIR management, the Immigration Judiciary, OIL, or elsewhere in the DOJ. NONE!  Sometimes silence speaks more loudly than words!

With the pandemic and Trump’s xenophobic illegal attack on our legal immigration system, in the face of a sharply declining birth rate, we have plenty room for more immigrants, be they refugees, family members, or essential workers. As Professor Hoffman and others of us had predicted, the racist attack on our immigration system by Trump, unfortunately largely continued by the Biden Administration, has turned our immigration system over to smugglers, cartels, gangs, and pure chance.

A rational, orderly, humane, and most of all legal and constitutional immigration system would benefit all of us. It’s a shame that those currently in Government can’t or won’t make it happen.

Due Process Forever!

PWS

05-07-21