☠️⚰️POLITICOS, MEDIA CONTINUE TO GET THE BORDER WRONG — By Mary Giovagnoli In MS — “For the present, we must stop pretending that the U.S. can pick and choose when people will leave their countries and ask for asylum at our border.”👎🏻

 

 

Mary Giovagnoli · Senior Legal Counsel, Strategy and Special Programs at Kids in Need of Defense (KIND)
Mary Giovagnoli · Senior Legal Counsel, Strategy and Special Programs at Kids in Need of Defense (KIND)
PHOTO: Medium.com

The Misery Trump Left at the Border Is Finally Being Revealed – Ms. Magazine
. . . .

Trump supporters and hangers-on boast the “success” of Trump’s immigration policies, demonstrated by the supposed drop in illegal entries. But this is merely an “out of sight, out of mind” approach to managing a very real problem. It was a giant sleight of hand which hid the actual number of people seeking entry into the U.S. Biden’s policies have pulled back the curtain and like so many other aspects of Trump’s administration, it is clear that the claims of success are nothing more than fantasies.

And yet the Biden administration is not off the hook. While it did agree to permit unaccompanied children to enter the U.S. despite the Title 42 ban, it did so following a preliminary injunction issued by a federal court last November. DHS continues to expel families, as well as single men and women, under the existing Title 42 order.

. . . .

Despite the clear moral and legal imperatives to stop Title 42 expulsions, the Biden administration is clearly worried that returning to pre-pandemic processing of asylum seekers will overwhelm the system. It is also clear that they fear a political backlash if critics are able to characterize the border as out of control.

Taking these final steps takes courage and political will. Those of us who support the rights of asylum seekers have to let the administration know that doing the right thing will not tarnish its reputation and that we will work even harder to ensure that making good on humane immigration policy is not political suicide.

Protecting asylum seekers is a woman’s issue of the first order. We must encourage and challenge both the administration and Congress to live up to U.S. obligations. We must turn out at the voting booth to support candidates and elected officials who act on behalf of asylum seekers. And we must push back, every way we can, against those who hope to weaponize the border in a callous effort to turn following the law into a political liability.

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

Read Mary’s complete article at the link. Many thanks to Judge Alex Manuel of the ABA’s National Conference of the Administrative Law Judiciary for passing this along.

Surprisingly, “forced migration,” is exactly what it says it is: “FORCED migration” — not optional! As I have pointed out before: “We can diminish ourselves as nation (and are doing so), but it won’t stop human migration.”

Refugees come, because that’s what refugees do. They often come when the world is in crisis, because that’s one of the primary reasons why refugees flee. They seldom come in an orderly manner because flight to save your life doesn’t lend itself to “regularity.” How many Jews perished in Nazi-controlled areas before and during WWII waiting for visas that were never going to come?

And, what brings refugees to our borders actually has little to do with inane statements of politicos, bureaucrats, border cops, and the media. One of the main consequences of illegally “closing the border to asylum seekers” is that large numbers simply enter between ports of entry. Those who used to turn themselves in to the Border Patrol are encouraged by our short-sighted policies and unwillingness to follow our own laws just to keep on going.

We’d certainly do much better if we “canned” all the Trump-era illegal, racist nonsense, reopened border ports to asylum seekers, and encouraged them to apply there or in locations abroad. But, to make that happen we would also have to review their claims in a timely, fair, and humane manner — not “rocket science,”  yet something that largely has eluded our nation, particularly since 2014.

It’s achievable. But not without much better leadership coming from experts who actually know how to deal with refugee situations in a humane and effective manner. Failed bureaucrats and grandstanding politicos, those who usually “drive the train heading for a wreck,” can’t do the job! That’s been proved time and again! Why do we insist on repeating all our mistakes? Cruelty and threats simply aren’t effective.

To emphasize Mary’s concluding point about women’s concerns, Jeff “Gonzo Apocalypto” Sessions and Neo-Nazi Stephen Miller made misogyny a focus of their vicious attack on people of color seeking asylum. It started with Sessions’s atrocious decision ignorantly and unlawfully targeting women refugees in Matter of A-B- and continued through Miller’s now-enjoined effort to unlawfully eradicate gender-based asylum grants. Never mind that women form the largest group of clearly identifiable refugees in the world and that femicide and violence against them driven by sexual antipathy and issues of control are rampant worldwide, particularly in the Northern Triangle.

But, a large problem here is that more than two months into the Biden Administration, Attorney General Merrick Garland has yet to repudiate Matter of A-B- and the other debilitating racist and misogynist “precedents” and grotesquely illegal anti-asylum policies of Sessions and Barr. Worse yet, he has neither stood up for the reinstatement of asylum laws and compliance with Constitutionally-required due process at the border, nor has he removed and replaced “his” Board of Immigration Appeals and taken steps to curb those of “his” Immigration “Judges” who are still engaged in furthering the Sessions/Barr White Nationalist, misogynist, anti-asylum agenda! 

Interesting lack of action from a distinguished former Federal Judge who several months ago claimed great gratitude that his ancestors were given refuge from harm by the U.S. Is there some reason that those people of color and others now arriving at our borders and claiming legal protections under our laws are less deserving of fair, generous, and humane treatment?

Woman Tortured
Judge Garland’s View Of Proper Treatment of Women Seeking Asylum?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

🇺🇸🗽⚖️Due Process Forever!

PWS

04-03-21

🧑🏽‍⚖️👨🏻‍⚖️⚖️BIDEN & WARREN BELIEVE IN A DIVERSE, PROGRESSIVE FEDERAL JUDICIARY — JUDGE GARLAND CONTROLS PERHAPS THE MOST IMPORTANT FEDERAL JUDICIARY NEXT TO THE SUPREMES — So, What’s He Waiting For? — Will He Reverse The Dems’ Maddening Failure To Grasp & Act On The Cosmic Importance & Game Changing Potential Of A Progressive Immigration Court, That Gets Beyond The Often White, Male, Enforcement, “Go Along To Get Along” Stereotypes & Showcases Diverse, Progressive “Practical Scholars,” Many Of Them Women & People Of Color?

Jennifer Bendery
Jennifer Bendery
Journalist
HuffPost
PHOTO: Twitter

https://www.huffpost.com/entry/elizabeth-warren-professional-diversity-federal-judges_n_605cbde5c5b67ad3871d9095o

Jennifer Bendery in HuffPost:

The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.

For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.

“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”

Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.

If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.

At last, the times are catching up with Warren.

President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.

“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”

. . . .

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

Read the complete article at the link.

Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now! 

At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿‍♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay! 

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

Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!

Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.” 

Grim Reaper
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law. 

Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, they  are condemned to endless litigation to vindicate their rights in a system intentionally rigged against them. 

Star Chamber Justice
“Justice”
Star Chamber
Style

Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!  

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

And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!  

The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”

Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!

During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum. 

Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience. 

In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮

Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary. 

Judge Merrick Garland
Judge Merrick B. Garland, U.S. Attorney General
Official White House Photo
Public Realm

Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it! 

PWS

3-28-21

⚖️👨🏻‍⚖️ THE BIDEN ADMINISTRATION SHOULD “RE-CERTIFY” THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (NAIJ) — Will They? ❓❓— Marcia Brown Reports For American Prospect

Marcia Brown
Marcia Brown
Writing Fellow
American Prospect
Photo source: American Prospect

https://prospect.org/justice/one-union-biden-has-not-supported-immigration-judges/

. . . .

The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.

As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.

Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.

“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.

Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.

Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.

Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.

. . . .

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

Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence”  at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.

This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda. 

Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” —  few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR  — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA —  continued unabated.

Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up! 

Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!

To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director. 

Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.

Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!

FULL DISCLOSURE: I am a proud retired member of the NAIJ!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-15-21

“ELECTIONS HAVE CONSEQUENCES” — Biden Administration Ends Trump’s Fruitless Campaign Against States & Cities — Dean Kevin Johnson With A Summary From ImmigrationProf Blog!

Kevin R. Johnson
Kevin R. Johnson
Dean
UC Davis School of Law

https://lawprofessors.typepad.com/immigration/2021/03/justice-dept-asks-supreme-court-to-dismiss-sanctuary-immigration-suits.html

Elections truly do have consequences.  The Biden administration in its early days has removed some high profile immigration cases from the Supreme Court docket, moving in a different direction than the Trump administration.  NBC News reports  (see also CNN and Bloomberg) that, yesterday, the Justice Department asked the Court to dismiss three lawsuits over the lawfulness of the Trump administration’s efforts to de-fund “sanctuary’ cities.

In brief letters to the Supreme Court, the Justice Department said the cases should be dismissed, indicating that the government will no longer seek to enforce that policy.

Lower courts were divided on the legality of the Trump de-funding policy. The Supreme Court had been deferring action on the appeals while the new administration decided how to handle the cases.  The cases are Wilkinson v. San Francisco, 20-666; New York v. Department of Justice, 20-795; and City of New York v. Department of Justice, 20-796.

KJ

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

Thanks for the nice summary and links, Kevin!

The Trump regime waged a four-year unsuccessful war against American local governments who were seeking to protect their ethnic communities from ICE abuses and to encourage community cooperation with police in addressing violent crime in those communities. How did they go about it: By threatening to cut off certain Federal funding for local law enforcement. 

If it sounds stupid and wasteful, that’s because it was. It also helped make ICE probably “the most despised law enforcement agency in America.” Again, not an effective strategy for real cooperative law enforcement. 

But, despite all his bluster and false claims, Trump never, ever was about “law enforcement.” That was clear even before he sent his “magamorons” out to attack our Capitol. No, it always was about stoking fear, hate, and throwing “red meat” to his base for political purposes.

PWS

03-05-21

THE GIBSON REPORT — 03-01-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — FEATURING: Under The EOIR Big Top 🎪 Robed TV Carnival Barkers Hand Out Death Sentences ☠️ With Ignorance, Indolence, Indifference, & Insult To Injury!

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: Hearings in non-detained cases at courts without an announced date are postponed through, and including, March 19, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.

 

USCIS Office Closings, Including Weather

 

TOP NEWS

 

Biden revokes Trump ban on many green card applicants

Reuters: U.S. President Joe Biden on Wednesday revoked a proclamation from his predecessor that blocked many green card applicants from entering the United States.

 

Biden to allow migrant families separated under Trump to reunite in the U.S.

Politico: ACLU Executive Director Anthony D. Romero was quick to welcome Mayorkas’ announcement, but cautioned that “the devil is in the details and Secretary Mayorkas has to shed all the caveats and qualifications around his announcement and follow through with everything that’s necessary to right the wrong.” See also Lawyers have found the parents of 105 separated migrant children in past month.

 

Biden to Discuss Border and Other Issues With Mexican President

NYT: The two leaders, who previously talked about ways to stem migration in a call on Jan. 22, just days after Mr. Biden took office, are expected to discuss addressing the root causes of persecution and poverty that force Central American families to flee to the United States.

 

First migrant facility for children opens under Biden

WaPo: Government officials say the camp is needed because facilities for migrant children have had to cut capacity by nearly half because of the coronavirus pandemic. At the same time, the number of unaccompanied children crossing the border has been inching up, with January reporting the highest total — more than 5,700 apprehensions — for that month in recent years.

 

Federal judge deals Biden another blow on 100-day deportation ban

Politico: U.S. District Judge Drew Tipton granted a preliminary injunction that blocks the moratorium the Biden administration announced on its first day.

 

ICE investigators used a private utility database covering millions to pursue immigration violations

WaPo: U.S. Immigration and Customs Enforcement officers have tapped a private database containing hundreds of millions of phone, water, electricity and other utility records while pursuing immigration violations, according to public documents uncovered by Georgetown Law researchers and shared with The Washington Post.

 

The Trump Administration’s Cruelty Haunts Our Virtual Immigration Courts

InTheseTimes: According to the Executive Office for Immigration Review (EOIR) — the Justice Department agency that oversees these immigration adjudication centers — nearly 300,000 asylum cases have been heard via videoconference in the past two years.

 

In The Story Of U.S. Immigration, Black Immigrants Are Often Left Out

NPR: Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration, tells NPR’s Scott Simon about challenges Black immigrants to the U.S. face.

 

Consumer watchdog sues immigration services company, claiming it preys on detainees

NBC: The Consumer Financial Protection Bureau on Monday filed a lawsuit against Libre by Nexus, claiming the company is preying on immigrants through a bond scam that traps participants into paying expensive fees.

 

The five biggest omissions in massive Biden immigration bill

Examiner: Protocols for caring for families and children, border wall infrastructure, decriminalizing illegal immigration, immigration courts, employment-based immigration, and private detention facilities were not addressed in either the House or Senate versions of the bill.

 

LITIGATION/CASELAW/RULES/MEMOS

 

USCIS Launches Pilot Program to Facilitate Attorney or Representative Remote Participation in an Asylum Interview

USCIS has launched a temporary pilot program to facilitate attorney or representative participation in an asylum interview from a remote location via video or telephone. The pilot program is available only at the Arlington, Boston, Miami, Newark, and Newark/Manhattan Branch asylum offices. AILA Doc. No. 21030131

 

2nd Circ. Judge Dings Majority’s ‘Uncharitable’ Asylum Ruling

Law360: A fractured Second Circuit panel tossed an El Salvadoran asylum seeker’s appeal, finding that his opposition to gangs was not a political opinion and that he could avoid future beatings, a view the dissenting judge called an “uncharitable” interpretation of the case.

 

BIA Rules on Special Rule Cancellation of Removal

BIA ruled that an applicant for special rule cancellation of removal under INA §240A(b)(2) based on spousal abuse must demonstrate both that the abuser was their lawful spouse and was either a U.S. citizen or LPR at the time of the abuse. Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) AILA Doc. No. 21022432

 

Justices ‘Baffled,’ ‘Confused’ By Asylum Cases

Law360: A pair of thorny immigration cases “baffled” and “confused” the inquisitive justices of the U.S. Supreme Court Tuesday as they wrestled with when testimony of asylum applicants must be presumed to be credible.

 

District Court Indefinitely Stops Government from Executing a 100-Day Moratorium on Removals

A district court grants nationwide preliminary injunction to prohibit enforcement and implementation of the 100-day pause on removals as outlined in the 1/20/21 DHS memo. (State of Texas v. USA, et al., 2/23/21) AILA Doc. No. 21012634

 

Presidential Proclamation Revoking Immigrant Visa Ban

On 2/24/21, President Biden issued Proclamation 10149 revoking Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131, which suspended immigrant visas due to the 2019 novel Coronavirus outbreak. (86 FR 11847, 3/1/21) AILA Doc. No. 21022490

 

DOS Provides Update on the Phased Resumption of Routine Visa Services

DOS updates its announcement and FAQs on the phased resumption of visa services following the rescission of Presidential Proclamation 10014, which suspended the entry of certain immigrant visa applicants into the United States. AILA Doc. No. 20071435

 

DOJ Appeals Ruling Limiting Immigrant Detentions Without a Court Hearing

Documented: Judge Alison Nathan’s Nov. 30 ruling  at U.S. District Court in Manhattan was the first to draw a constitutional line on how long an Immigration and Customs Enforcement detainee waits for an initial hearing before a judge.

 

ICE Can’t Keep Transferred Detainee Out Of Fla. Class Action

Law360: A Florida federal judge ruled Friday that a Mexican citizen can join a class action challenging U.S. Customs and Immigration Enforcement detainee conditions at three South Florida facilities during the COVID-19 pandemic, saying the agency cannot escape jurisdiction by transferring him to a facility across the country.

 

Council Sues Customs and Border Protection to Release Records of Militarized Raids on Humanitarian Aid Station

AIC: The Council and partners filed a Freedom of Information Act (FOIA) lawsuit to compel the government to release documentation of three raids on a humanitarian aid station in the deadly desert in Southern Arizona.

 

HHS Withdrawal of Request for Comment on Proposed Revisions to Forms for Sponsors of Unaccompanied Children

The Department of Health and Human Services published a notice stating that it is no longer pursuing changes to the forms for sponsors of unaccompanied children on which it had requested public comment on 1/5/21 at 86 FR 308, and therefore withdraws its request for comment. (86 FR 11537, 2/25/21) AILA Doc. No. 21022531

 

DHS Secretary Mayorkas Announces Family Reunification Task Force Principles and Executive Director

DHS: Secretary Mayorkas announced that Michelle Brané will serve as the Task Force’s Executive Director.  Most recently, she served as the senior director of the Migrant Rights and Justice program at the Women’s Refugee Commission.

 

RESOURCES

 

·         Correction: The ERO ombudsman email that was circulating last week had a typo and should be: EROOmbudsman@ice.dhs.gov.

·         AILA: Policy Brief: Walled Off: How USCIS Has Closed Its Doors on Customers and Strayed from Its Statutory Customer Service Mission

·         AILA: Current Leadership of Major Immigration Agencies

·         AILA: Practice Alert: ICE Interim Guidance on Civil Immigration Enforcement and Removal Priorities

·         AILA: Practice Pointer: Employment Verification During the COVID-19 Outbreak

·         AILA: Summary of the U.S. Citizenship Act

·         AILA: Section-by-Section Summary of the U.S. Citizenship Act

·         AILA: Podcast: Representing a Mentally Ill Client Facing Removal Proceedings

·         AILA: Resource Related to Lawsuit Granting Preliminary Relief for Diversity Visa Applicants

·         ASISTA: New Advisory: Overview of U.S. Citizenship Act of 2021 & Its Impact on Immigrant Survivors

·         Black Immigrants Got Talent

·         CGRS: Children’s Asylum Manual: A Resource for Practitioners

·         CLINIC: Biden Administration Rescinds 2018 USCIS Notice to Appear Guidance

·         CLINIC: Department of State Shifts Human Rights Reports Comparison Charts

·         CMS: New Study about Immigrant Health in New York City

·         CRS: Are Temporary Protected Status Recipients Eligible to Adjust Status?

·         GAO: Actions Are Needed to Address the Cost and Readiness Implications of Continued DOD Support to U.S. Customs and Border Protection

·         ICYMI: Important Policy & ASISTA Updates

·         ILRC: What Every Noncitizen Must Know About Cannabis and Immigration

·         Immigration Mapping: From Hirabayashi to DACA

·         LGBT Adult Immigrants in the United States

·         LSNYC Practice Advisory on continuances: fourth edition of the sample motion

·         USCIS: Resources on U.S. Citizenship for Adult Adoptees

 

EVENTS

 

·         9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

 

ImmProf

 

Monday, March 1, 2021

·         Join the Deported Veterans Symposium on March 10-12, 2021

·         LGBT Adult Immigrants in the United States

·         Jennifer Lee Koh Joins Pepperdine Law Faculty

·         Democrats Strategizing on Immigration Reform, Piecemeal or the Whole Enchilada?

Sunday, February 28, 2021

·         Year of the Ox’s “Viral” Song Gains Traction Amid Rise in Anti-Asian Violence

·         Brookings Institution: Biden’s Immigration Reset

Saturday, February 27, 2021

·         At the Movies: Minari (2020)

·         Immigration Article of the Day: Freedom of Movement, Migration, and Borders by Jaya Ramji-Nogales & Iris Goldner Lang

Friday, February 26, 2021

·         Vera Institute — A Federal Defender Service for Immigrants Why: We Need a Universal, Zealous, and Person-Centered Model

·         Black Immigrants Got Talent (BIG Talent)

·         At the Movies: The Marksman (2021)

·         Fortress (North) America

·         Immigration Mapping: From Hirabayashi to DACA

·         At the Movies: Alien Terminology and Change the Subject, a 2019 Documentary

·         Immigration Article of the Day: Fee Retrenchment in Immigration Habeas by Seth Katsuya Endo

Thursday, February 25, 2021

·         Big Strides In Reunifying Separated Migrant Familes; Long Ways Still To Go

·         Call For Papers: Forced Migration Review on “Public health and WASH”

·         Immigrant Leaves Maplewood Church After 3½ Years As ICE Decides Not To Deport Him

·         Sister Simone Campbell on Immigration Reform

·         #WeCanWelcome Asylum Seekers: Meet Mirna Linares de Batres

·         Throwback Thursday: My Trials by Judge Paul Grussendorf

·         Immigration Article of the Day: Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings by Ayissa Maldonado

Wednesday, February 24, 2021

·         President Biden revokes Trump bans on many green card applicants, temporary foreign workers

·         Court Enjoins Biden Administration’s 100 Day Removal Pause

·         Ahilan Arulanantham joins UCLA School of Law as co-faculty director of the Center for Immigration Law and Policy

·         The five biggest omissions in massive Biden immigration bill

·         Immigration Article of the Day: Capital Controls as Migrant Controls by Shayak Sarkar, California Law Review, Forthcoming

Tuesday, February 23, 2021

·         From ‘aliens’ to ‘noncitizens’ – the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans

·         Congressmember Debbie Leski’s Racist Remarks

·         Teaching Immigration Law: Law School Clinics in the US and UK

·         Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa

Monday, February 22, 2021

·         From the Bookshelves: Migrant Conversions:  Transforming Connections between Peru and South Korea by Erica Vogel

·         Supreme Court News: Court to Review Public Charge Case, Hear Asylum Credibility Oral Arguments Tomorrow

·         USCIS restores citizenship and naturalization test

·         Immigration Lawyers Toolbox®

·         Code Compare on Lexis Nexis

·         Human Rights Watch — US: Take New Approach at Mexico Border

·         In Challenging Times, A Call for African American/Asian American Unity

·         Former Trump senior advisor Stephen Miller slams Biden immigration proposal

·         Immigration Article of the Day: The Political (Mis)representation of Immigrants in Voting by Ming Hsu Chen and Hunter Knapp

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

Check out “Top News #7.” It’s an article by Arvind Dilawar in In These Times about “EOIR’s Black Sites,” 🏴‍☠️ euphemistically known as “Immigration Adjudication Centers” where imposters masquerading as “judges” “process” cases by TV on the deportation assembly line, often without regard to the law, the facts, and the humanity of their victims and the lawyers representing them.

Here’s an excerpt:

Lisa Koop, associate director of legal services for the National Immigrant Justice Center (NIJC), stood with her client in immigration court in September 2019. The client (name withheld for privacy) had escaped violence in Central America and fled to the United States with her young daughter. Here, they were taken into custody by immigration authorities, which landed them in this courtroom, waiting to hear whether they would be granted asylum.

They were initially scheduled with a traditional, in-person immigration judge. But that judge retired and the case was transferred to an “immigration adjudication center.” This new judge video conferenced in. Koop says the judge did not allow an opening statement, was not familiar with relevant precedent and did not ask Koop to address any particularities of the case in the closing argument. The judge ruled that, while the case was “very sad,” it did not meet the criteria for asylum, then wished Koop’s client “good luck” following deportation.

This outrageous mockery of due process, fundamental fairness, and real judicial proceedings is ongoing, in the Department of “Justice” — yes, folks, the Chief Prosecutor of the U.S. maintains his own “wholly owned” “court system”  in a nation where justice supposedly is unbiased and impartial — more than five weeks into the Biden Administration.

Last week, we heard a refreshingly emotional expression of personal gratitude and recognition of the essential role of refugee protections from Judge Merrick Garland. 

What we haven’t heard to date is a recognition that what will soon be “his” DOJ treats refugees (in this case vulnerable asylum seekers) with disdain and disrespect “revved up” by four years of White Nationalist abuses heaped on them by Judge Garland’s corrupt predecessors as AGs for Trump. We also have yet to hear what Judge Garland plans to do about the deadly and disreputable “EOIR Clown Show” 🤡🦹🏿‍♂️ which will soon be operating under his auspices and which, whether he realizes it or not, will form the the major part of his legacy to American Justice.

Judge Garland should call up folks like Lisa Koop at NIJC, Claudia Valenzuela at American Immigration Council, and their colleagues to get a “real life dose” of what it means to be or represent an asylum seeker in today’s dysfunctional and disreputable Immigration “Courts” that actually are 21st Century Star Chambers.

Star Chamber Justice
“Justice”
Star Chamber
Style

Better yet, he should replace the current EOIR Senior Executives and BIA Appellate Immigration Judges with Koop, Valenzuela, and others like them — “practical experts” in due process, equal justice, immigration, and human rights — who would restore and advance judicial integrity and fairness to a system that has abandoned and trampled upon those fundamental values!

Grim Reaper
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

As stated at the end of Dilawar’s article: Asylum-seekers are wrongfully denied asylum, and justice is not served.” Duh!

🇺🇸🗽⚖️Due Process Forever! End the EOIR Clown Show!🤡🦹🏿‍♂️🎪☠️

PWS

03-02-21

PROPHET 🔮 IN HIS OWN TIME: IN 2015, PROFESSOR GEOFFREY HOFFMAN CALLED FOR BETTER IMMIGRATION JUDGES 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️⚖️ — The Situation Is 10X Worse Now! — Judge Garland Must Act To End This National Disgrace That Otherwise Will Quickly Become A Blot On The Biden Record! — “[L]et’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”

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

From LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/posts/geoffrey-hoffman-eoir-needs-better-immigration-judges

Geoffrey Hoffman: EOIR Needs Better Immigration Judges

Prof. Geoffrey Hoffman, Nov. 24, 2015 – “It is important, I think, to note the import but also the paradox behind the BIA’s latest precedent decision, Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) that admonishes IJ’s not to bully minors. In the decision, the Board discusses conduct by an Immigration Judge that can be construed as “bullying or hostile” behavior and says it is “never appropriate,” particularly in cases involving “minor respondents,” concluding such behavior may result in remand to a different Immigration Judge. I am glad that the Board is finally taking to task this kind of egregious IJ behavior. On the one hand, we should applaud the Board for pointing out this behavior and finally holding it up to the light of day in an important new precedent decision. On the other hand, it is a sad commentary on the behavior of some judges that the appellate body of the EOIR has to even say this publicly. Of course judges should not behave this way, and the fact that recusal is mandated by the BIA in such situations is something to congratulate the Board for now getting behind. But, one wonders whether this response is at all sufficient. Whether, as an IJ, I can now say, “Well, the worst that will happen is that I will have the case taken away from me on remand, and therefore I do not have to deal with this mess anymore.” It doesn’t seem like much of a deterrent.

In a case which I handled on appeal, the IJ denied the respondent’s attorney the opportunity to call a psychologist to testify about the respondent’s mental condition and disease (bipolar disorder), a fact which went directly to the particular social group and seemed particularly relevant to me. When the attorney respectfully requested permission to put on the expert witness, and specially whether the witness could testify about any medications the respondent had taken or was taking the IJ in response asked the attorney whether she was on any medications. Was she on any medications? I read and re-read that line again and again as I prepared the appeal thinking perhaps I had missed the joke. But this wasn’t a joke. It was simply intemperate behavior by an IJ. Thankfully, the BIA correctly and compassionately remanded the case but based on the bipolar condition, recognizing that it could form a valid PSG. No mention was made of the issue of judicial impropriety I had raised in the brief. In other appeals I have done before the Board, I have noticed that when raising issues with the Board about IJ’s missing evidence or even misconstruing the factual background, the Board does not seem to deal with these issues head-on but instead bases their decisions on some other ground, preferring to adjudicate the appeal on a legal ground rather than on the basis of judicial misconduct or judicial mistake. And there is nothing surprising here, with the Board insulating IJ’s from admonishment and not highlighting their misunderstandings of the record, but there is I think a cost which has been underreported or perhaps not even appreciated. The cost is that IJs become used to behaving in a way that can be described as intemperate at best and demeaning or demoralizing and abusive, at worst.

This said, I do have a lot of sympathy for many IJs, having worked very hard myself for a federal judge for two years after law school, and seeing and appreciating the incredible stress and responsibilities of being a judge. The IJs, it should be mentioned, have it worse: they have to juggle a case load of hundreds and hundreds of cases, while at the same time maintaining compassion and composure at all times, and at the same time providing a clear, cogent and correct legal analysis in all cases and contexts. However, and this needs to be said, I think some IJs should not be IJs and should not have been selected to be IJs. If we want to make the immigration court system work we need to do a better job in vetting these judges, choosing based on temperament and suitability to deal with the rigors of handling all these cases with compassion and professionalism.

This is the time now (at this very moment) to make this statement as loudly and boldly as possible, since EOIR right now is advertising for 50+ new judgeships across the country. Since we have approximately 250+ judges, this represents an approximate 20 percent increase. I implore EOIR to make these decisions with due regard to how the judges might act in future, not just whether they have experience deporting people, working for the government in other capacities, or experiences such as being in the military. While those are factors, let’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”

Geoffrey A. Hoffman

Director-University of Houston Law Center Immigration Clinic

Clinical Associate Professor

4604 Calhoun Road

TU-II, Room 56

Houston, TX 77204-6060

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

Unfortunately, the Obama Administration ignored Geoffrey’s plea. Instead of creating a well-qualified, independent, progressive judiciary that could achieve the “EOIR Vision” of: “Through teamwork and innovation becoming the world’s best tribunals, guaranteeing fairness and due process for all,” the Obama Administration handed out immigration judgeships like they were service awards for DHS prosecutors, DOJ attorneys, and other government lawyers.

The Obama selections appeared designed primarily to avoid appointing anyone who might have the background, backbone, and courage to “rock the boat” and stand up for immigrants’ rights even when it meant rejecting ill-advised and legally questionable Administration enforcement policies and procedures. In other words, truly independent judging and thinking was discouraged in favor of a “go along to get along” atmosphere mischaracterized as “collegiality.” 

Sure, collegiality has its benefits. But, in the end, independent judging is about justice for the individuals coming before the courts, not about institutional survival, job preservation, making friends, achieving bureaucratic performance goals, or pleasing political “handlers” who don’t want to read about their “subordinates” in the “funny papers.” When I was ousted from the BIA as part of the so-called “Ashcroft purge,” I noticed that those those judges who were “collegial” but outspoken about immigrants’ legal rights got punished right along with those who were perceived as “less collegial” in standing up for the same rights.

Moreover, the Obama folks designed an unwieldy and astoundingly inefficient “Rube Goldberg selection system” that took more than two years to fill an average IJ vacancy — much longer than the Senate confirmation process! This was at a time when backlogs were building and the NAIJ and the “line IJs” were begging “EOIR management” for help. “Management” could have achieved comparable results simply by throwing darts at a board containing the names of government attorneys. And, it would have cut the red tape. 

Inept as the Obama Administration might have been, the Trump kakistocracy of course proved to be our worst nightmare. They “weaponized” the EOIR immigration judiciary into a tool of White Nationalist nativist enforcement, racial injustice, and misogyny. Here are some of the things Sessions and Barr did at the behest of Stephen Miller:

  • “Packed” the BIA with judges known as “asylum deniers” — some with denial rates in excess of 90%;
  • Appointed IJs from the Atlanta Immigration Court, which had generated Matter of Y-S-L-C-, to the BIA in an overt attempt to replicate the “Asylum Free Zone” as Atlanta was known throughout the private bar;  
  • “Rewarded” with BIA appointments several judges who had complaints lodged against them for their rude and unprofessional in-court behavior, open hostility to asylum seekers (particularly women), and unprofessional treatment of private attorneys; 
  • Issued bogus EOIR and BIA precedents, some on their “own motion,” that were almost 100% against respondents and in favor of DHS Enforcement while undoing long-standing rules that had promoted fairness to asylum seekers and sound docket management;
  • Appointed almost all government/prosecutorial background Immigration Judges, many without immigration qualifications, others associated with anti-immigrant or anti-gay groups;
  • “Decertified” the National Association of Immigration Judges (“NAIJ”) as punishment for speaking out against gross mismanagement at EOIR and DOJ;
  • Imposed due-process-denying unprofessional “production quotas” on IJs intended to increase deportation rates;
  • Deprived IJs of effective management control over their dockets, while engaging in endless “Aimless Docket Reshuffling;”
  • Unethically exhorted IJs to treat the DHS as their “partners” in enforcing immigration laws;
  • Gave the Director — essentially a political appointee disguised as a career executive — authority to interfere with BIA decision making in certain cases;
  • Basically reduced Immigration Judges to the status of “deportation clerks” while falsely claiming that they were “management officials” to “bust” the union;
  • “Dumbed down” immigration judge training;
  • Artificially “jacked up” the Immigration Court backlog to an astounding 1.3 million cases — even with twice the number of IJs on the bench.

As one of my esteemed Round Table colleagues said, “since [Geoffrey’s article] was written, record numbers of good IJs resigned over the past 4 years, many good candidates wouldn’t apply (or if they did, likely weren’t chosen) over the past 4 years, and then just the general drop in quality that comes with that degree of expansion [in the absence of competent planning].”        

The lack of compassion, glaring disregard for the protective purposes of refugee law, and absence of human understanding as to what it means to be a refugee seeking salvation simply screams out from the last four years of perverse AG and BIA precedents as well as from some of the elementary mistakes made by EOIR judges at all levels in the numerous cases reversed by Courts of Appeals over the past four years.  

And, this is just the “tip of the iceberg.” Many seeking protection are denied any hearings at all, railroaded out without understanding what’s happening, or simply give up without appealing wrong decisions and denials of due process — worn down by the abusive and unnecessary detention that EOIR helps promote and the intentionally “user unfriendly” procedures developed to discourage individuals from asserting their legal and human rights. 

While the broken and reeling Department of Justice presents many challenges, I predict that Judge Garland’s tenure will be remembered largely by how he deals, or doesn’t deal, with the total disaster in the U.S. Immigration Courts. The Trump regime’s attack on democracy and people of color began with immigration, and the effort to dehumanize and degrade migrants continued until the final day. 

Will Judge Garland leave behind a reformed, progressive, due-process-oriented system that is a model judiciary? One that finally fulfills the vision of — “Through Teamwork and innovation action becoming the world’s best tribunals, guaranteeing fairness and due process for all?” A court that can easily transition out of the DOJ intro an independent Article I Judiciary? Or will he leave behind another disgraceful mess and the dead bodies, broken dreams, and visible betrayals of American values to prove it?

Only time will tell! But, the NDPA will be watching. And, there isn’t much patience out here for more of the “EOIR Clown Show!”🤡🦹🏿‍♂️

🇺🇸🗽⚖️Due Process Forever! Better judges 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️ for a better America. And that starts (but doesn’t end) with the U.S. Immigration Courts!

PWS

02-14-21

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

 

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

https://thehill.com/opinion/immigration/536794-unclogging-the-nations-immigration-court-system

From Immigration Impact:

. . . .

That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.

Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.

Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts.

Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.

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

Read the full article at the link.

Presto: 1.3 million million docket becomes 640,000. And that’s just the beginning!

Here are some more low-budget, immediate action “No-Brainers:”

  • Vacate all of the anti-asylum, backlog expanding “precedents” issued by Sessions, Whitaker, Barr, and the BIA over the past four years (immediately returning needed flexibility and some degree of fairness to the system);
  • Reassign the current BIA and replace with expert judges committed to due process who know how to grant asylum and establish precedents on how “clear grants” can be easily identified, properly documented, and consistently adjudicated (eliminate “refugee roulette” — largely a product of an “any reason to deny culture” combined with defective judicial selection, poor training, and lousy leadership);
  • Return all asylum cases denied over the past four years to the USCIS Asylum Office for adjudication without all the anti-asylum precedents and dehumanizing policies of the Trump regime; 
  • Work with the private bar and NGOs to increase representation with universal representation as the goal; 
  • Eliminate inane and demeaning “production quotas” for EOIR judges (thus placing the emphasis back on careful decision making, thoughtful analysis, and getting the correct result the first time — also restoring IJs’ ability to schedule and manage dockets).

Realistically, 500 Immigration Judges can complete approximately 250,000 to 300,000 cases annually. A combination of 1) the “Chen-Markowitz plan;” 2) the “Schmidt Addendum;” and 3) the more sensible and realistic enforcement priorities initiative already underway at DHS will have EOIR “operating in real time” (and, significantly, in the national interest) in no time at all — without legislation or busting anyone’s budget!

Of course, these initial steps are just the “tip of the iceberg” of the reforms necessary at EOIR, leading to the fulfillment of the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all.” Congress must at the earliest opportunity create an independent Article I Immigration Court to institutionalize and preserve these reforms and “best practices.” 

But, in the meantime, lives and our national interests are imperiled by the current deadly (and wasteful) dysfunction @ EOIR. There is every reason to fix the system now! And, it’s not “rocket science” — just expertise and common sense.

Which leads me to another obvious point — Members of the NDPA like Chen, Markowitz, Dean Kevin Johnson, Michelle Mendez, Associate Dean Professor Jaya-Ramji Nogales, Professor Phil Schrag, Professor Michele Pistone, up and coming all-star Lauren Wyatt, Judge Dana Marks and other leaders of the NAIJ, experienced due process oriented Immigration Judges like my former BIA colleague Judge Noel Brennan, and many others like them should be in charge of this effort to reform EOIR and create a model court system. 

The Biden Administration must apply the same principles to EOIR Reform that they have elsewhere: Get rid of the “middlemen” and  “bring in the experts” to run the show! Articles, papers, speeches, TV interviews, encounter groups, studies, and blogs are great — but putting the right folks in the right places to take action to solve problems is much better and more efficient! Put the folks with the answers in charge!

That would not only create a “laboratory of best judicial practices” that could be applied to the floundering Article III Judiciary, but also would provide the Biden Administration with source of well-trained progressive candidates for the Article III Judiciary. Leadership, including “leading by example” is critical in any well-functioning judicial system; it has been sorely lacking at EOIR (and in the Article III Judiciary) over the past four years. As the Biden Administration has already recognized, the only real leadership among the Federal Judiciary has come from “resistors” like Judge Ashley Tabaddor, now at USCIS.

Incidentally, in her current position at USCIS, Judge Tabaddor is perfectly placed to work with EOIR in carrying out the “Chen-Markowitz plan” to get cases of those potentially eligible for residence out of the EOIR backlog and into USCIS where they can be handled more efficiently. 

Suggestion for EOIR Acting Director Jean King: Perhaps you weren’t aware that EOIR just posted the following recruitment notice for Attorney Advisor (Counsel to the Deputy Director) (not a joke, sadly): https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTAyMDMuMzQ1MzcxMTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9sZWdhbC1jYXJlZXJzL2pvYi9hdHRvcm5leS1hZHZpc29yLWNvdW5zZWwtZGVwdXR5LWRpcmVjdG9yIn0.HqH7tPMLAQqeCW9Xc0ooJNBRk_97S44aMG-xy02Pesc/s/842922301/br/97008185548-l

To state the obvious, EOIR needs more “headquarters personnel” like a hole in the head! What you need is a streamlined staff of better-qualified individuals across the board: real judges and professional judicial administrators who will restore due process and get this system functioning again — sooner rather than later.

Additionally, the current Deputy Director Carl C. Risch is a notorious “Trump political burrower” who should be gone by the end of the month. 🧹🪠 https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/office-of-chief-administrative-hearing-officer-ocaho/judge-james-mchenry/carl-c-risch/

Consequently, there is no apparent need for additional “counsel” in his office right now. To say the least, this ill-timed “example of the “Continuing Clown Show at EOIR”🤡 has already become a “internet mini-sensation!” At the very least, you should wait until Risch’s replacement arrives and let her or him make the selection.

Undoubtedly, a reformed IJ tenure program (considering not only discipline but also retention of current judges and improved professional training) that is transparent, fair, and effective is a badly needed and long overdue improvement. But, hiring another bureaucrat (on short notice, which is likely to produce a less than “best qualified” candidate) isn’t the answer.

That being said, I’ve already heard from a number of private practitioners who would love to be in charge of “professional responsibility for Immigration Judges.” They have lots of great ideas for improvements and a number of places where they would start the process immediately, if not sooner!

 

⚖️🗽🇺🇸Due Process Forever!

PWS

02-04-21

❤️⚔️BRAVE NEW WORLD: CIVIL RIGHTS ICONS TO HOLD KEY POLICY POSITIONS @ JUSTICE UNDER GARLAND:  Will Vanita Gupta & Kristen Clarke Finally “Connect The Dots” Between Immigrants’ Rights & Civil Rights, Or Will DOJ Pursue Flawed “Two-Headed” Policy Of Past Dems?

Vanita Gupta
Vanita Gupta
Nominee for Associate AG
Photo: Brookings Institution, Paul Morigi, Creative Commons License
Kristin Clarke
Nominee for Assistant AG, Civil Rights
Photo: NAACP, Creative Commons License

Meet the courageous, dynamic , outspoken, new human-rights-oriented leaders looking to fulfill the Constitution and make “equal justice for all” a reality @ the DOJ and for America. Sam Levine reports for The Guardian.

https://www.theguardian.com/us-news/2021/feb/03/kristen-clarke-vanita-gupta-biden-justice-department?CMP=Share_iOSApp_Other

On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.

Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the last four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).

Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.

Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.

Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.

“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”

Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.

“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”

. . . .

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

Read the rest of these inspiring American profiles 🇺🇸🌟at the link. Don’t you think we need the “Vanita & Kristen” of immigration and human rights to lead the restoration effort at EOIR and the BIA?

Here are the “keys to success:”

  • Immigrants’ rights are human rights;
  • Human rights are civil rights;  
  • There can be neither racial justice nor equal justice in America until migrants are not only fully recognized as “persons” under our Constitution, but actually treated as such (as opposed to the active “dehumanization” and “Dred Scottification” of migrants and persons of color by the Trump regime and the GOP majority on the Roberts’ Court);
  • You can’t possibly “win the game” with the same players who “batted for the White Nationalists” over the past four years.

And, speaking of “Jewel in the Crown.”👑 That’s exactly how many of us in the “Round Table of Former Immigration Judges” 🛡⚔️ once viewed EOIR. The “EOIR Vision” was: “Through teamwork and innovation be the worlds’s best tribunals, guaranteeing fairness and due process for all.” 

So, Vanita, and I hope Kristen also, can imagine the anger and determination to fight with which our Round Table viewed the dismemberment of due process and weaponization of the Immigration Courts under Sessions, Whitaker, and Barr. From aspiring to be the “world’s best tribunals” to “Star Chambers” and a grotesque, dysfunctional national disgrace!

On the plus side: Both Gupta and Clarke are the daughters of immigrants. Both have written and advocated for immigrants’ rights as part of their civil rights leadership.

Caution. Obama Attorneys General Eric Holder and Loretta Lynch were “facially aggressive” on protecting voting rights and police reforms. Yet, at the same time they: helped DHS set deportation records; allowed EOIR to spiral toward dysfunction (to a large extent through failure to procure and properly manage resources and an indolent judicial hiring program that was both “closed and non-diverse in nature” and glacial in operation (2 years to fill an average judicial vacancy!)); supported “baby jails,” the “family gulag,” and toddlers representing themselves on asylum cases in Immigration Court; looked the other way as private prisons treated asylum seekers and migrants worse than convicted criminals; and “went along to get along” with the Administration’s misuse of the Immigration Courts as (a highly ineffective) deterrent to applications for asylum.   

Sessions, Whitaker, and Barr might have been the “Kings of Aimless Docket Reshuffling” at EOIR that helped produce an astounding 1.3 million case plus “backlog.” But, it started in earnest under the Obama Administration.

That’s what I mean by the “two headed policy:” arguing for voting rights for minorities in one courtroom while simultaneously ignoring the human and civil rights of migrants in the next courtroom. Arguing for the right to vote in one case, while arguing (apparently with a straight face) that toddlers who can’t speak English have no right to legal representation in the next case.

Not only that, but with the Biden Administration apparently looking to rapidly fill upcoming Article III vacancies, the Obama DOJ’s mishandling of the Immigration Courts has deprived President Biden of the chance to draw from a diverse group of younger, progressive Immigration Judges whose practical scholarship, commitment to human rights and due process, courage, and proven ability to function in a “high stress” judicial setting would make them strong candidates for the now-reeling Article III Judiciary.

That’s certainly not to say that there aren’t some potential progressive candidates for the Article III Judiciary among today’s present, and particularly recently “retired,” (some essentially “forced out” at relatively young ages as a “matter of conscience”) Immigration Judges. There are! But, only a fraction of the number there would have been if the Obama Administration had taken the Immigration Courts with proper seriousness. 

And, that’s leaving aside the lives that could have been saved and better jurisprudence that could have been “institutionalized” with better, merit-based, judicial selections at EOIR during the Obama Administration!

I sincerely hope that Vanita Gupta and Kristen Clarke can help Judge Garland get the job done at Justice. The “human rights/immigration world” will be cheering for you. Getting some of the folks from the New Due Process Army (“NDPA”) into key positions at EOIR and the rest of the DOJ will be an “early signal” of whether or not “Team Garland gets it.” 

Removing McHenry at EOIR was a good start! But, it’s only a small step in what has to be done to make racial justice and immigrant justice a reality at the DOJ. The “brooms and plungers” 🧹🚽 need to come out, and the sweeping and plunging has to be quick and widespread.    

On the other hand, there is “no patience for another Obama Administration” out here in the real world. Every day, EOIR and DOJ are killing folks, ruining lives, and abusing the brave and dedicated attorneys of the NDPA! If the rhetoric doesn’t produce short term results and drastic improvements, you can expect the same type of aggressive litigation from the NDPA that stopped the defeated regime from completely destroying the U.S. justice system.  

⚖️🗽Due Process Forever!

PWS

01-03-21

⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”

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

Dan Kowalski reports from LexisNexis Immigration Community:

9th Thwarts Anti-Asylum Misogyny For Gang-Rape Victim:

Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-asylum-india-persecution-kaur-v-wilkinson

CA9 on Asylum, India, Persecution: Kaur v. Wilkinson

Kaur v. Wilkinson

“The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur’s petition for review and remand for further proceedings consistent with this opinion.”

[Hats off to Douglas Jalaie!]

1st Calls Out Violation Of Regs, Incredibly Stupid Denial Of Reopening For Approved U Visa Petition Beneficiary Waiting For “Number:”

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-u-visa-waitlist-granados-benitez-v-wilkinson

CA1 on U Visa Waitlist: Granados Benitez v. Wilkinson

Granados Benitez v. Wilkinson

“Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (“IJ”) for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services (“USCIS”) for a U-1 nonimmigrant visa (“U visa”) pursuant to the Victims of Trafficking and Violence Protection Act (“VTVPA”), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement (“ICE”), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852- 54 (7th Cir. 2020).”

[Hats off to Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner, and Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae!]

3rd “Perplexed” By BIA’s Ignorance Of “Equitable Tolling,” Own Authority:

Kangaroos
“Hey, guys, ever hear of something called “equitable tolling?”  “Nah, is it spelled D-E-N-I-E-D?” “Equitable TROLLING,” I’ve heard of that?”https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-equitable-tolling-nkomo-v-atty-gen

CA3 on Equitable Tolling: Nkomo v. Atty. Gen.

Nkomo v. Atty. Gen.

“Because Nkomo properly raised equitable tolling before the BIA, the BIA erred in failing to consider her request for equitable tolling on the merits. We remand for the Board to do so in the first instance.”

“The BIA’s suggestion that it does not have the authority to make decisions on equitable grounds is perplexing. The BIA has authority to equitably toll the deadline for motions to reopen the precise relief Nkomo sought.”

[Hats off to Jerard A. Gonzalez!]

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

Demeaning rape victims! ☠️🤮👎🏻 So, what else is new @ EOIR? “Gonzo” Sessions 🦹🏿‍♂️ set the tone for anti-asylum, racially motivated misogyny in Matter of A-B- and “his judges” have taken it from there! (I repeat my oft-made observation: What kind of “due process” system lets a characters like Sessions, Whitaker, and Barr “own” judges?  How would you like to be a woman on trial for her life before a “judge” selected, directed, and “owned” by the likes of  these men with clear records of “applied contempt” for equal justice? Sessions, Whitaker, Barr, & Jeffrey Rosen are gone — but their legacy of bias and injustice lives on @ EOIR!)

One of my esteemed Round Table 🛡⚔️ colleagues summed up the latest set of outrageous miscarriages of justice from Falls Church:

All of these decisions demonstrate the degree of careful and detailed analysis that these cases require.And yet the BIA couldn’t keep staff attorneys after McHenry capped them at GS-13 (entry level), and keeps increasing the monthly quotas for BIA staff attorneys.Plus of course the Board Members themselves are now all these types who only review the decisions to make sure they end in the word “dismissed.”

If you were trying to create a recipe for disaster, you couldn’t have planned it better.

I heard the latter comment twice yesterday from immigration/human rights/due process experts on opposite sides of our country who observe and participate in the system at various levels.

To quote Justice Sotomayor’s recent dissent: “This is not justice.”

Historical Footnote:  One of my first actions as BIA Chair in 1995 was to establish a “GS-15 Career Ladder” for all Attorney Advisors at the BIA. This made the BIA competitive with the rest of the DOJ. 

It allowed us to attract and retain not only “top talent” coming from the “DOJ Honors Program” (how I got my first job at the BIA in 1973), but also outstanding career attorneys who wanted an opportunity to do research, writing, and “applied scholarship” that made a difference in individuals’ lives. Indeed, at various times the BIA has had on its staff former Senior Executives seeking a “change of  focus” to a career that allowed them to do the things they liked best about the law.

One of them was a former SES colleague at the “Legacy INS” who found in transferring to a GS-15 BIA Attorney Advisor position a career satisfaction, fulfillment, and sense of meaningful contribution that person had been missing in INS management at that time.

Reducing the top grade for Attorney Advisors is not only professionally and personally demeaning, it also marks the entire organization as “second class” and shows just how stupid and incompetent (and, in recent history, overpaid) EOIR “management” has become! And, as pointed out in my colleague’s comments above, it has not only adversely affected careers but the human lives in the balance on the BIA’s docket.

As I understood my “mission” from then Attorney General Janet Reno in 1995, the BIA was supposed to be about “attracting the best and the brightest judges and supporting them with the best and brightest staff.” Essentially getting it to function like the “12th Circuit” was a description mentioned during my interview process for the Chair job. 

Sadly, now, it has become an assembly line of expediency, injustice, shoddy legal work, mindless “corner cutting,” unprofessional behavior, and human misery.

To repeat my colleague’s comment: “If you were trying to create a recipe for disaster, you couldn’t have planned it better.”

All of these cases should have been resolved in the foreign national’s favor without ever getting to the Courts of Appeals! Bad judging, grossly incompetent administration, and lack of qualified, dynamic, judicial leadership from respected “practical scholars” costs lives, produces unacceptable and unfair inconsistencies, and clogs the Article III Courts with unnecessary litigation.

Indeed, the First Circuit’s decision in Granados basically reveals OIL’s “smorgasbord” of bogus arguments to uphold the BIA’s incorrect decision as “without merit” — actually frivolous! There are deep problems @ DOJ resulting from the ongoing corruption and disregard for ethics and professional leadership from the now-departed kakistocracy! They go far beyond the mess at EOIR!

Sure hope that Judge Garland, Vanita Gupta, and their incoming team @ DOJ have a comprehensive plan for replacing the BIA and reforming EOIR! The human beings suffering in this disgracefully inept and abusive “court system” and their courageous, long suffering attorneys are counting on you! Think of it this way: What if YOUR daughter were the rape victim demeaned, dehumanized, and denied justice by EOIR?

🇺🇸⚖️🗽👍🏼👨🏻‍⚖️🧑🏽‍⚖️Due Process Forever!

PWS

01-30-21

🇺🇸⚖️🗽TELLING IT LIKE IT IS! — Calling Out The White Nationalist Kakistocracy @ EOIR!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Kangaroos
BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice
https://www.flickr.com/photos/rasputin243/
Creative Commons License
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

‘White Nationalism’ In Immigration Courts Must Go: Ex-Judge
By Jennifer Doherty
Law360 (January 28, 2021, 9:48 PM EST) — A former immigration judge called on the Biden administration to reorient the mission of immigration courts on Thursday, saying that a “white nationalist program” had taken root under the Trump administration and needs to be eradicated.
Speaking on a panel about a new report showing that the vast majority of non-detained migrants appear at their immigration court hearings, retired Judge Paul Wickham Schmidt called out Trump administration officials over “big lies and bogus narratives” promoted by the U.S. Department of Homeland Security and the Executive Office of Immigration Review, including claims that detention was necessary to prevent migrants from disappearing.
Judge Schmidt, who used to be the chair of the Board of Immigration Appeals, pointed to former Attorney General Jeff Sessions’ intervention in immigration cases to relitigate cases such as whether women who suffer domestic abuse in regions with high rates of femicide qualify for asylum, as well as the former administration’s messaging to immigration judges that their role was an extension of DHS’ enforcement mechanism.
“It’s all been part, I think, of the Stephen Miller white nationalist program, that there is no such thing as a good immigrant; all the immigrants are here to take our jobs or to evade the system,” Judge Schmidt said, referring to one of former President Donald Trump’s senior advisers.
Meanwhile, Thursday’s report from the American Immigration Council, an advocacy nonprofit group, confirmed what many immigration judges have known for years, according to Judge Schmidt.
Relying on a sample of 2.8 million immigration court cases where migrants were either released or were never detained, the report found that 83% of respondents with pending or completed removal cases showed up for every hearing, a share that increased to 96% for immigrants represented by counsel.
“Represented asylum-seekers appearing before fair, knowledgeable judges show up for virtually all of their EOIR merits hearings,” Judge Schmidt said.
Based on those findings, the report recommended four policy reforms, including reducing immigration detention and ending the Migrant Protection Protocols, which have forced over 70,000 people to wait in Mexico for decisions in their asylum cases.
The report also called for additional training for immigration judges and the rollback of a law requiring judges to issue orders of removal for migrants who failed to appear, an occurrence the authors found was frequently due to faulty notices to appear.
Creating an Article I, also called a legislative court, would also give immigration judges more independence in their review of individual cases and relieve them from pressure to meet case quotas, according to the report.
UCLA School of Law professor Ingrid Eagly, co-author of the report, said that additional training would serve to reduce inconsistencies between immigration courts and ensure that judges held the
government accountable for its responsibility to notify migrants of their court dates.

. . . .

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

Those with access can read the rest of Jennifer’s article on Law360.

Jennifer Doherty
Jennifer Doherty
Reporter
Law 360
Photo: Twitter

I was talking to a lawyer/reporter this afternoon. Her comment was: “Could anybody have designed a worse system for deciding life or death cases?” She was told in “pro bono training” to observe how certain judges like the chairs arranged in the courtroom because it could affect the outcome of her client’s asylum case!

Another attorney I spoke with who had practiced personal injury law couldn’t believe that no immigration cases ever “settled.” Even those with clear merit bounce around the system for years and then go to full hearings, sometimes with inconsistent results!

How can a system operate like this? It can’t! That’s why doubling the number of questionably qualified “judges” has resulted in at least doubling, perhaps tripling, the “backlog.”

Under pressure from White Nationalists like Miller, Sessions, Hamilton, and Barr, EOIR has generated an artificially created “backlog” consisting largely of : 1] cases that could have easily been granted in a fair, functional, practical system; 2) cases that could be granted or placed in line at USCIS (another broken and dysfunctional agency); and 3) cases that never should have been filed in a rational system!

An incompetent BIA has failed to set forth the precedents for granting asylum and other relief that are necessary to restore the rule of law and common sense to a broken system! And they have totally failed to hold biased anti-asylum and nativist-enabling judges accountable! That’s because the BIA itself has become an organ of White Nationalist restrictionist bias bearing little, if any, resemblance to a “court” within the common understanding of the term. “Judicial independence,” impartiality, expertise, due process, and rationality have become “bad jokes” at EOIR!

And, for the past four years, the folks “running” this godawful system haven’t set foot in a courtroom in years (if ever) and don’t have a clue about asylum law or representing humans (rather than “agencies” or “nativists” as clients). It’s a friggin’ inexcusable disaster. FUBAR+++++++!

Judge Garland must end it!

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️👍🏼Due Process Forever!

PWS

 

🇺🇸😎BIDEN MOVES QUICKLY TO TAKE CONTROL OF USG — Hacks Out, Pros In @ EOIR & Other Key Agencies — Judge Tabaddor’s Appointment @ USCIS Sends Positive Message For Due Process, Good Government, & That “Courage Counts!”🦸🏻

 

Biden Team Rushes to Take Over Government, and Oust Trump Loyalists

https://www.nytimes.com/2021/01/27/us/politics/biden-government.html?referringSource=articleShare

David E. Sanger reports for the NYT:

WASHINGTON — When President Biden swore in a batch of recruits for his new administration in a teleconferenced ceremony late last week, it looked like the country’s biggest Zoom call. In fact, Mr. Biden was installing roughly 1,000 high-level officials in about a quarter of all of the available political appointee jobs in the federal government.

At the same time, a far less visible transition was taking place: the quiet dismissal of holdovers from the Trump administration, who have been asked to clean out their offices immediately, whatever the eventual legal consequences.

If there has been a single defining feature of the first week of the Biden administration, it has been the blistering pace at which the new president has put his mark on what President Donald J. Trump dismissed as the hostile “Deep State” and tried so hard to dismantle.

From the Pentagon, where 20 senior officials were ready to move in days before the Senate confirmed Lloyd J. Austin III as defense secretary, to the Voice of America, where the Trump-appointed leadership was replaced hours after the inauguration, the Biden team arrived in Washington not only with plans for each department and agency, but the spreadsheets detailing who would carry them out.

A replacement was even in the works for the president’s doctor: Dr. Sean P. Conley, who admitted to providing a rosy, no-big-deal description of Mr. Trump’s Covid-19 symptoms last year, was told to pack his medical kit. While all presidents eventually bring in their own doctor, Mr. Biden wasted no time bringing back a retired Army colonel, Dr. Kevin O’Connor, who was his doctor when he was vice president.

Mr. Biden had named nearly all of his cabinet secretaries and their immediate deputies before he took office last Wednesday, most of them familiar faces from the Obama administration. But the president’s real grasp on the levers of power has come several layers down.

. . . .

Ashley Tabaddor, a constant critic of the Trump administration as the former head of the union that represents immigration judges, will take over as chief counsel at U.S. Citizenship and Immigration Services, the federal legal immigration agency.

At the Justice Department — where morale was largely decimated and Biden administration officials are eager to begin reversing Trump policies on civil rights, immigration and police oversight — all of the department’s top incoming acting department heads are alumni, some of whom worked under multiple administrations.

Until Judge Merrick B. Garland is confirmed as attorney general, Monty Wilkinson, a longtime career employee who worked closely with Eric H. Holder Jr. when he was attorney general, is serving in an acting capacity.

The acting deputy attorney general is John P. Carlin, who ran the national security division of the Justice Department during the Obama administration. He is holding the office only until Lisa Monaco, who has worked closely with Mr. Carlin over the years, can be confirmed as deputy attorney general. She served as homeland security adviser under Mr. Obama and, during the Trump years, she and Mr. Carlin ran a group studying the hardest issues in cyberpolicy.

Much as the politicization of the Justice Department angered Mr. Trump’s critics, the neutering of the Environmental Protection Agency prompted outrage from progressives, and it is probably no surprise that the agency is already in the throes of transformation.

. . . .

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

Read the complete article at the link.

Trump spent his first week in office spouting lies about the size of his inauguration crowd and launching a White Nationalist assault on Muslim refugees. Biden came in with a detailed plan for governing America and is putting it into effect on multiple fronts notwithstanding the crises and absolute mess left behind by the defeated kakistocracy!

The Biden-Harris plan reflects three truths:

  • Government is a powerful force for the common good;
  • Most governing takes place at the “retail level;” and
  • Competence, honesty, and courage count.

The Tabaddor appointment is a powerful signal to civil servants who stand up for their rights and the rights of others. Judge Tabaddor undoubtedly is one of the most talented, dynamic, and capable leaders at any level of the Federal Judiciary. But, that didn’t protect her from the DOJ/EOIR bureaucracy.

Judge Tabaddor was bullied by EOIR management during the Obama Administration because she had been recognized as an outstanding Iranian American. She sued her tormentors and won a $200,000 settlement.https://www.npr.org/sections/thetwo-way/2015/11/03/454394225/government-settles-lawsuit-filed-by-iranian-american-judge

During the Trump regime, she led the effort of the National Association of Immigration Judges (“NAIJ”) to expose bias and political interference with judicial functions, gross mismanagement, disregard for due process, and suppression of First Amendment free speech by the DOJ/EOIR kakistocracy.

“Billy the Bigot” Barr & his toady McHenry punished the NAIJ by filing to “decertify” the union — a move to silence Judge Tabaddor and her her colleagues and deflect Congressional attention from the ongoing chaos and dysfunction the Trump DOJ had created in the Immigration Courts. 

Apparently, somebody on the Biden Team was paying attention to this travesty, recognized the grotesque abuses going on at the EOIR Clown Show🤡, and the courage and leadership shown by Judge Tabaddor in the battle for integrity and  “good government.”

So far, so good. Looks like the “EOIR Clown Show”  🤡 is finally “going to go” and be replaced with real judges and pros in judicial administration who will refashion it into a real, functioning, due-process-oriented, model court system that will compliment the legislative initiative to create an independent Article I U.S. Immigration Court of which we all can be proud. 

“Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all!” Still the “right vision.” And with the right judicial leadership and judges who are experts in human rights, immigration, and “applied due process” it can become a reality!

🇺🇸⚖️🗽Due Process Forever!

PWS

01-28-21

🏴‍☠️☠️“BAD TO THE BONE” — TRUMP JUSTICE DEPT. SO CORRUPT THAT EVEN THE GUY WHO RAN THE LIBRARY 📚 & SUPPORT SERVICES (“ACTING” AG MONTY WHATSHISNAME) HAS DIRTY HANDS! — Judge Garland Had Better Show Up With A Broom🧹, A Plunger 🪠, The Code of Professional Responsibility, & Lots Of New Lawyers From the Private Sector If He Plans To Restore Justice @ Justice! 

 

“On the day I was born

The nurses all gathered ’round

And they gazed in wide wonder

At the joy they had found

The head nurse spoke up

And she said leave this one alone

She could tell right away

That I was bad to the bone

Bad to the bone

Bad to the bone

B-B-B-B-Bad 

B-B-B-B-Bad

B-B-B-B-Bad

Bad to the bone”

—- From “Bad to the Bone” By George Thorogood & The Destroyers (1982)

“Monty” Python
“Monty Python” Whatshisname
Acting U.S. Attorney General
Photo: Ian Jacobs, Creative Commons License

https://www.google.com/search?q=bad+to+the+bone+lyrics&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari

 

https://www.theguardian.com/us-news/2021/jan/22/monty-wilkinson-biden-acting-attorney-general-doj-lawyer-family-separations?CMP=Share_iOSApp_Other

Biden official involved in removal of DoJ lawyer concerned by family separations

Monty Wilkinson worked with Iris Lan in reviewing complaints about prosecutor who said he was ‘disturbed’ by Trump policy

Stephanie Kirchgaessner in Washington

Published:

21:31 Friday, 22 January 2021

Follow Stephanie Kirchgaessner

The Biden administration’s acting attorney general, a longtime career official named Monty Wilkinson, took part in a controversial 2017 decision to remove a justice department (DoJ) lawyer in Texas who had raised concerns about migrant children who were being separated from their parents.

Emails seen by the Guardian show that Wilkinson, who is expected to serve as acting attorney general until Judge Merrick Garland is formally confirmed by the Senate, worked with another longtime career official, Iris Lan, in reviewing complaints about Joshua Stern, a prosecutor who had told colleagues he was “disturbed” by the Trump administration’s separation policy.

Jeff Sessions impeded inquiry into role in Trump’s family separation policy

The policy ultimately led to the separation of about 1,550 children from their parents, hundreds of whom have still not been reunited, although Joe Biden has said he would make that one of his top priorities.

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Stern, who is no longer employed by the DoJ, was ultimately removed from his post as a temporary detailee, two weeks after senior officials in Texas raised concerns about him to officials in Washington DC, including Wilkinson.

Wilkinson, who Biden chose to serve as acting attorney general until Garland is confirmed, had been overseeing human resources, security planning and the library at the justice department before he was elevated to serve as acting attorney general.

A recent report in the New York Times suggested that Wilkinson was a trusted longtime official, and that his “low profile” all but guaranteed that he was not involved in any of the myriad scandals that defined the justice department under Donald Trump and the former attorney general Bill Barr.

But a report published by the Guardian in September 2020 revealed that Wilkinson was one of several career officials who reviewed complaints that ultimately led to the removal of Stern from the western district of Texas in 2017.

The report was focused on the role a senior justice department official, Iris Lan, played in reviewing those complaints. Lan had been nominated to serve in a lifetime appointment as a federal judge, but the nomination was never taken up in the Senate after a number of immigrant rights groups raised concerns about Lan following publication of the Guardian’s article.

It is not clear whether Wilkinson or Lan privately supported or criticized the administration’s child separation policy when they heard about Stern’s concerns.

. . . .

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

Read the full article at the link.

It’s not like Courtside hasn’t been saying it for several years now: Cruelty, lawlessness, inhumanity, racism, and dishonesty end up corrupting everyone. Sessions is essentially a “21st Century Nazi war criminal” — everyone who served him is tarnished by his miserable lack of ethics, humanity, intelligence, honesty, and anything close to the basic qualifications for office. The same can be said for Billy the Bigot and short-timer Matt Whitaker. 

Even a guy like “Monty” — basically considered “safe” because he was a bureaucratic nebbish who kept out of sight and off the radar screen — turns out to have been bathed in the slime 🤮 that Sessions and his cronies unleashed on the Department.

Of course, it’s more fun to come “riding in on a white horse” to rally and save the dispirited troops. But, in this case, the “troops” who willingly carried water for the immoral, racist, lawless, White Nationalist, anti-democracy, and ultimately insurgent kakistocracy at the DOJ are part of the problem. And, that goes for some career lawyers who failed to live up to their oaths of office, not just the vile politicos. 

If “Team Garland” doesn’t knock some heads, re-establish ethical standards, provide some moral leadership, and hold some folks who should have known better accountable, they are not going to be able to get the job done! The EOIR kakistocracy is the obvious starting point. But, it can’t be the end of “operation clean sweep!”🧹

In the meantime, the Biden Administration might have to look in the JMD motor pool or the mail room to find an “Acting” AG not tarnished by the Barr-Whitaker-Sessions kakistocracy @ Justice!

⚖️Due Process Forever!

PWS

06-22-21

🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

A Parting Shot At Women

As the Trump Administration comes to an end, let’s remember how it began.  On the day following the inauguration, millions participated in Women’s Marches around the world.  There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.

It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence.  That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated.  The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound.  The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.

The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection.  Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.

There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-.  Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below.  But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers.  As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.

So what does the new decision of the recent Deputy Transportation Secretary say?  It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.

As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection.  The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.

I’m not sure of the need for what follows on the topic.  Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available.  Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap.  Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.”  No court has ever said that it was.  Let’s move on.

The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established.  This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father.  The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.

Our laws recognize that persecution can arise for multiple reasons.  A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm.  The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”

In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm.  Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store.  But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted.  This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed

In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction.  The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family.  The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.

I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice.  The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable.  I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political.  I’m not sure what jumps out in that example as evidence of animus towards the family itself.  How would one apply the Romanov test to anyone ever appearing in Immigration Court?  By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.

Of course, this is just my humble opinion.  The assistant Transportation czar feels differently.  Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”

I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference.  Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied.  (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).

But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference.  It is instead a legal standard not specific to asylum or immigration law.

For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity.  In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes.  In determining nexus, the Court stated:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context.  What would give an Acting Attorney General the authority to hold otherwise?

A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.

However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required.  The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.

Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1  While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test.  The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.”  This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive.  Perhaps the author required more than three weeks at the Department of Justice to understand this.

I write this on the last full day of the Trump presidency.  Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.

Note:

1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.  See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).

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

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.

Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team. 

The Clown Show🤡🦹🏿‍♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹

🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!

And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”

“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!

Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿‍♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮

PWS

01-20-20

🇺🇸🗽⚖️👍🏼NDPA TRIUMPH: CLINIC SMASHES EOIR KAKISTOCRACY’S 🤡🦹🏿‍♂️ LAST-DITCH ASSAULT ON DUE PROCESS THROUGH UNWARRANTED, INVIDIOUSLY-MOTIVATED FEE INCREASES — NOTE TO JUDGE GARLAND: Not Only Must This Illegal Proposal Be Withdrawn, But Those Responsible In The EOIR Kakistocracy 🤡🦹🏿‍♂️ Must Be Removed From Their Current Positions Before They Cause Any More Damage To American Justice!🏴‍☠️☠️⚰️👎🏻

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Trump Regime Emoji
Trump Regime
EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Order on Stay-PI (01.18.2020)

CLINIC v. EOIR, USDC D DC, 01-18-21 (Judge Amit P. Mehta)

KEY QUOTE:

The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm), 463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.

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

Kind of says it all!

Congrats to the heroes at CLINIC and their NDPA colleagues!

Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)

And, while you’re at it, Judge Garland, you must examine the role of the sleazy DOJ lawyers who mounted an essentially frivolous defense for this nonsense in Federal Court. Sadly, you’re looking at systemic failure here, as well as a totally disrespectful and unwarranted effort to “beat the clock” in implementing the Miller/Hamilton White Nationalist, racist, anti-due-process, xenophobic agenda! 

Obviously, EOIR cut corners and tried to rush these bogus changes into effect before the well-established “end date” of the Trump kakistocracy on Jan. 20, 2020. EOIR also of acted in full knowledge that the incoming Biden Administration would go a “different direction” on immigration matters. 

In plain terms, this was an illegal bad-faith effort to undermine the incoming Biden Administration and illegally punish legal service providers by making them use time and resources in undoing the illegal mischief EOIR intentionally inflicted. This is neither “normal” nor”acceptable.” It must be forcibly and swiftly addressed by “Team Garland.”

CLINIC and their allies should be devoting resources to representing individuals in Immigration Court, not to fending off a bad-faith racist agenda sponsored by no less than a Department of “Justice” that has completely lost its way and impedes the public good.

This is a very serious ongoing national disgrace and abuse of the legal process by the DOJ. It needs to stop! Now! And those responsible for this outrage must face accountability for their unwarranted and illegal actions!

🇺🇸⚖️🗽Due Process Forever! The EOIR Clown Show 🤡🦹🏿‍♂️☠️ Never!

PWS

01-19-21

⚖️🗽🇺🇸SLAVIN, BENÍTEZ, KOWALSKI, SCHMIDT SPEAK OUT ON BROKEN COURTS — Yilun Cheng Reports For “Borderless Magazine”

 

fl-undocumented-minors 2 – Judge Denise Slavin, former executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel — Judge Slavin is a member of the Round Table of Former Immigration Judges
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Me
Me
Yilun Cheng
Yilun Cheng
Writer
PHOTO: Twitter

https://borderlessmag.org/2021/01/13/for-undocumented-immigrants-a-shot-at-lawful-residency-requires-risking-it-all/

From “For Undocumented Immigrants, a Shot at Lawful Residency Requires Risking It All” by Yilun Cheng in Borderless Magazine:

. . . .

The risk has become even higher in recent years as the Trump administration filled the immigration court system with hardline judges, according to Paul Schmidt, a former judge at the U.S. Immigration Court in Arlington, Virginia. For years, legal groups have urged the government to hire judges from diverse backgrounds to guarantee fairness in the courts, but the situation has only deteriorated in recent years, Schmidt said.

. . . .

“The Obama administration was just negligent,” Schmidt said, suspecting that former president Barack Obama left dozens of vacant immigration judgeships when he left the White House. “The new administration got a chance to fill those positions with a far-right judiciary.”

. . . .

“It’s very much a law enforcement-oriented and not a due process-oriented judiciary,” Schmidt said. “It’s just a bad time to be an individual with a case in the immigration court right now, with a bunch of unsympathetic judges, political hacks pulling the strings, and inconsistent COVID policies.”

. . . .

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Read Yilun’s full article at the link.

In the article, my friend and Round Table 🛡⚔️ colleague Judge Denise Slavin gives an excellent description of how “Aimless Docket Reshuffling” operates in a bogus “court” system run by political hacks with enforcement (and in the defeated “regime” racist) motivations.

“Ready to try” cases, many of which could be granted or should be closed, are shuffled off to the end of the docket, some without any notice on the day of trial when the respondent, his or her lawyer, and often witnesses who have taken the day from work arrive only to find out that their case has been “orbited” into the “outer space” of the EOIR backlog. 

Meanwhile, cases of individuals who haven’t had time to get lawyers or been granted the preparation time required by due process are put at the front of the docket to make denial of their cases easier for “judges” who have been told that they are basically functionaries of DHS enforcement. Sometimes, the very same lawyers who have had their years-old prepared cases arbitrarily reset to oblivion are then improperly pressured and required to go forward with cases they haven’t had a chance to properly prepare or document. 

Often, individuals whose cases are improperly “accelerated” recieve inadequate notice, resulting in carelessly issued, illegal “in absentia” orders that could result in improper removal or at least require heroic efforts by lawyers to get the case reopened and restored to the docket. Meanwhile, the bogus “no-show” statistics caused by the Government’s improper actions are used to build an intentionally false narrative that asylum seekers don’t show at their hearings.

The truth, of course, is the exact opposite: When given a chance to get competent representation and when the system is explained to them in understandable terms, asylum seekers show up for the overwhelming majority of their hearings, regardless of the ultimate result of  their cases.

As cogently studied and stated by highly-respected “practical scholar” Professor Ingrid Eagly of UCLA Law and her colleague UCLA empirical researcher Steven Shafer, in a recent published study:

Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction.

 

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9695&context=penn_law_review

Professor Ingrid Eagly
Professor Ingrid Eagly
UCLA Law
PHOTO: Twitter

I’d be willing to bet that at least an equal number of individuals with in absentia orders are illegally deported because they aren’t knowledgeable enough to reopen their cases, or their reopening motions are wrongfully denied but they lack to resources to pursue appeals, which often involve prolonged periods of dangerous and abusive detention.

Obviously, an Administration actually interested in solving problems (presumably “Team Garland”) would “can the false narratives and bogus enforcement gimmicks” and concentrate on getting asylum seekers represented and increasing and raising the quality of judicial review of detention decisions. The regime’s immigration kakistocracy, of course, has moved in exactly the opposite direction.

Cooperation and coordination with the private, often pro bono, bar, essential to any well-functioning court system, has become non-existent. In fact, it is actively discouraged by DOJ politicos and their “management toadies” at EOIR, who often have mischaracterized the  private bar as “the enemy” or out to “game” the system. Perversely, of course, the exact opposite is true. The regime’s immigration kakistocracy has tried over and over to use illegal methods and bogus narratives to illegally and unconstitutionally “game” the system against legitimate asylum seekers and their hard-working attorneys (actually, the only “players” in this sorry game trying to uphold “good government” and the rule of law.)

As a result, the only way for the private bar to be heard is by suing in the “real” Article III Federal Courts. This has resulted in a string of injunctions and TROs against EOIR and DHS misconduct, illegal regulations, and unlawful policies throughout the country, further adding to the chaos and inconsistencies. It also has clogged the Federal Courts with unnecessary litigation and frivolous, often disingenuous or unethical, “defenses to the indefensible” by DOJ lawyers.

This is how a dysfunctional “court system” that actually is a veneer for out of control enforcement and institutionalized racist xenophobia builds backlog. The corrupt “leaders” of this dysfunctional and unconstitutional mess then blame their victims for the delays caused by gross Government mismanagement. In turn, they use this “bogus scenario” to justify further unconstitutional restrictions of immigrants’ rights, due process, and judicial independence.

It’s a “scam” of the highest order! One that actually harms ☠️ and kills ⚰️ people, harasses lawyers, undermines the rule of law, and wastes taxpayer resources. One that has brought disgrace upon the DOJ and undermines the entire U.S. Justice system🏴‍☠️. One that Judge Garland and his incoming team at the DOJ must immediately end and totally reform, while holding accountable those responsible for this gross miscarriage of justice, fraud, waste, and abuse.

This is not “normal Government” or a question of “differing philosophies.” It’s outright fraud, intentional illegality, abuse of Government resources, and instititutionalized racism. It must be treated as such by the Biden Administration.

⚖️🗽🇺🇸Due Process Forever!

PWS

01-18-21