Attorney General William Barr – Page 33

TANVI MISRA @ ROLL CALL: The BIA’s Biased Hiring Program Is As Bogus As A Three Dollar Bill — Designed To Empower White Nationalist Nation, Deny Due Process! ☠️👎🏻 — “Everyone knows that [EOIR Director James McHenry] 👺 was changing the process along the way to ensure he got the candidates he pre-selected.”

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

https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration/

Tanvi writes for Roll Call:

. . . .

The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.

“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”

An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”

“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”

New roles

Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.

McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.

They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.

EOIR said its office first proposed that designation in 2000.

“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.

True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.

“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.

Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.

Faster hiring process

In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.

The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.

McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.

In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.

The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.

“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.

Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”

According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.

EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.

. . . .

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Read Tanvi’s full article at the link.

Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!

The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.

There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!

What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.

Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”

Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.

Even with tons of “undue deference” given to the BIA by the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.

The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”

INTERESTING HISTORICAL FOOTNOTE: The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.

Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:

NEW Roll Call article by Tanvi Misra – DOJ hiring changes may help Trump’s plan to curb immigration

AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation

AILA and the American Immigration Council Press Release, New Documents Reveal Immigration Judge Hiring Plan Designed to Stack the Courts, Prioritize Politics Over Justice

This November, vote like your life depends on it! Because it does!

Due Process Forever! Fraudulent “Clown Courts” 🤡 Never!

PWS

05-05-20

ANOTHER BLOW TO THE REGIME SCOFFLAWS, AS MORE WILL BE REVIEWED FOR RELEASE FROM THE GULAG: Judge Dana Sabraw, USDC SD CA, Orders Further Review, After Plaintiffs Show Undercount In Original DHS Affidavit Submitted To Court!

https://www.sandiegouniontribune.com/news/immigration/story/2020-04-30/judge-orders-review-for-release-of-ice-detainees-at-otay-mesa-detention-center

Kate Morrissey reports for the San Diego Union Tribune:

The facility’s warden had initially given the judge an undercount of how many detainees were at high risk of complications due to COVID-19

By KATE MORRISSEY

APRIL 30, 202012:04 PM

A San Diego federal judge ordered Immigration and Customs Enforcement to review for release a list of newly identified detainees at the Otay Mesa Detention Center who would be at high risk for serious health complications if they get COVID-19.

U.S. District Court Judge Dana Sabraw granted the American Civil Liberties Union’s request to create a subclass of people at high risk under the pandemic, which has spread widely within the facility. The judge made his decision after learning that the facility’s warden had undercounted the number of people in that category in his initial declaration for the case.

“That information is significant,” Sabraw told attorneys during a telephonic hearing Thursday. “It does change measurably the underlying facts and whether or not the petitioners are entitled to relief.”

A spokeswoman for CoreCivic, the private prison company that runs the facility, said that the initial report sent to the judge was compiled with data from ICE Health Service Corps, which provides the medical care at the facility, and the report “was made with the best available information we had from our partners at the time.”

. . . .

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

Read the rest of Kate’s article at the link.

There was a time, long ago, when a Government agency’s submission of false, materially incomplete, or misleading information to a Federal Court would have earned sanctions up to and including threats of contempt from a U.S. District Judge. Sadly, bending the truth, omitting material information, and outright lies have become “the norm” for DHS and DOJ under Trump.

Indeed, the burden is now on the plaintiffs, often serving pro bono and stretched to the limit, to show and document for the courts each false, incomplete, or misleading affirmation from the Government. Against reason and the clear record over the past three years, Federal Courts continue to presume the proven unlikely — nay, likely impossible — that a regime led by a pathological liar and his toadies will provide them true, accurate, and complete information about anything!

Instead of asylum applicants being given “the benefit of the doubt,” as our law is supposed to require, that benefit of the doubt is now being given to an overtly bigoted and dishonest Executive who in no way has earned or deserved it. Everything has been turned upside down.

But, until the Article III Courts take actions to insure that this regime respects the integrity of the process, the practice of “lie, obfuscate, and mislead first and see if they catch you” will continue largely unabated. Vulnerable migrants aren’t the only victims here. Failing to force the regime to act in an honest, ethical, and professional manner in Federal litigation is eroding the integrity of the Article III Courts all the way up to the complicit Supremes.

Remember, several years ago, the DHS and DOJ lied to Federal Courts and the public about the existence of Sessions’s “child separation policy.” Two years later, they continue to feed erroneous information to the courts with impunity. But, who’s surprised when in the meantime the Supremes’ majority has sent such a powerful and consistent message that “Brown Lives Don’t Matter” and they won’t examine the truth or actual motivation behind any Executive attack on the rights, lives, and safety of migrants.

Here’s a report from a member of the NDPA and a Courtside reader on the front lines of the battle to save humanity: “[T]wo of our clients detained in Otay Mesa Detention Center were finally released after a Federal Judge issued a TRO. I am relieved. ICE has been unreasonable and in my opinion reckless with the lives of people in detention and even their own employees. . . . And the attorneys at the ACLU are the true heroes here and . . . students.”

Why is this abject failure of responsible Government and absence of powerful, coordinated, courageous judging that puts an end to these human rights abuses acceptable? Why isn’t our Supreme Court delivering a powerful message that Executive dishonesty, denials of due process, systemic detention abuses, and disregard of established human rights principles aren’t acceptable in 21st Century America? Why is “Dred Scottification” the new policy endorsed by the “JR Five” on the Supremes?

Until we get better Federal Judges willing to stand up to Executive abuses and a Congress that retakes its responsibility to legislate and oversee the Executive in the area of immigration and human rights, it will continue to fall to the private bar and NGO lawyers to force officials among our failed institutions in all three Branches to do their jobs in accordance with the law and the Constitution. That’s not the way it’s supposed to work. But, it’s the only way it does work in today’s America. Thank goodness for the (non-regime) lawyers!

Due Process Forever!

PWS

05-02-20

Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!

Honorable Mimi Tsankov
U.S. Immigration Judge
Eastern Region Vice President
National Association of Immigration Judges (“NAIJ”)

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/immigration/human-rights-at-risk/

Judge Tsankov writes solely in her capacity as Eastern Region Vice President with the National Association of Immigration Judges (“NAIJ”) in the ABA Journal:

April 28, 2020 HUMAN RIGHTS

Human Rights at Risk: The Immigration Courts Are in Need of an Overhaul

The views expressed here do not represent the official position of the United States Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

by Hon. Mimi Tsankov

Share this:

“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.”

—Senator Sheldon Whitehouse

So wrote Senator Sheldon Whitehouse (D-RI) in his February 13, 2020, letter to Attorney General William Barr, in which he and eight members of the Senate Judiciary Committee called upon Barr to take action against, what he termed, an increasingly troubling politicization of the immigration court adjudication process.

The stakes couldn’t be higher for those seeking human rights protection in the form of asylum and other forms of relief from persecution and torture. Individual liberty and personal safety interests are often at stake in immigration court proceedings where immigration judges have the authority to grant protection from persecution. Id.; see also, 8 U.S.C. 1158. Whitehouse gave voice to what is becoming an alarming trend—the increasing political influence over individual immigration cases. This action, he explained, is undermining the public’s confidence in the immigration courts and creating an impression that “cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.” Whitehouse Letter, supra, at 5; see also, 8 U.S.C. Section 1229a(b)(4)(A) and (B); 8 C.F.R. 1003.10(b).

Whitehouse recounted a sentiment articulated previously by a host of legal community leaders for more than a decade, not the least of which was ABA President Judy Perry Martinez, who in a recent statement before the U.S. Congress explained that housing a court within a law enforcement agency has exacerbated an inherent conflict of interest undermining “the basic structural and procedural safeguards that we take for granted in other areas of our justice system.” See, Am. Bar. Assoc., 2019 Update Report: Reforming the Immigration System, Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (Mar. 2019). As she explained, “this structural flaw leaves Immigration Judges particularly vulnerable to political pressure and interference in case management.” Martinez Testimony, supra, at 1.

It is important to note that these concerns are being expressed on the heels of what some see as growing impunity within the executive branch, focused almost single-mindedly on the speed of removal hearings at the risk of diminished due process. See Statement of Jeremy McKinney, Secretary, American Immigration Lawyer’s Association, NPR, Justice Department Rolls Out Quotas for Immigration Judges (April 3, 2018). The Justice Department is being charged with implementing a host of policies that diminish the primary responsibility of ensuring a fair hearing. For the past three years, the attorney general has used a process known as “certification,” a power historically used sparingly, to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Id. Some have argued that the frequency with which this procedure has recently been employed borders on abuse as it seeks to severely limit the number of immigrants who can remain in the United States. Whitehouse Letter, supra, at 5. Equally troubling is the charge that the attorney general is using certification as a way to overrule immigration judges whose decisions don’t align with the administration’s immigration agenda. Id.

One area of particular concern is the recent encroachment by the agency into judicial independence. The National Association of Immigration Judges (NAIJ), which is the union representing sitting immigration judges, argues, alongside many others in the legal community, that these incursions into judicial independence are part of a broader effort to fundamentally alter how immigration removal cases are adjudicated, and that such actions are having deleterious effects. See Statement of Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 2 (Apr. 18, 2018).

An overcrowded, fenced area holds families at a border patrol station in McAllen, Texas.

Thomas Cizauskas from Flickr

Among the new measures implemented by the Justice Department are unrealistic and impractical one-size-fits-all case quotas and deadlines that squeeze immigration judges where they are most vulnerable—their status as “employees.” If an immigration judge provides one too many case continuances, even though related to a valid due process concern, she risks being terminated. Every pause for judicial reflection, or break for much needed legal research, risks slowing down the “deportation machinery” that the adjudication process is veering toward and threatens to eviscerate procedural due process, even though such due process is mandated by the U.S. Constitution. Id.

These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm. The endless docket shuffling, and the chasing of performance “completions” that correspond to a job-preserving metric, seems designed to make political statements rather than ensuring victims of human rights abuses are afforded due process. A complex, multi-witness, multi-issue hearing is afforded the same value as an order of removal for failure to appear at a hearing. See Mimi Tsankov, Judicial Independence Sidelined: Just One More Symptom of an Immigration System Reeling, 55 Cal. W. L. Rev. 2 (2019).

. . . .

Mimi Tsankov serves as eastern region vice president with the National Association of Immigration Judges and has been a full-time immigration judge since 2006.

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

Read Judge Tsankov’s complete article at the link.Thanks Judge Tsankov. You are a “True American Hero!” 🗽🎖👩‍⚖️👍🏼

The situation in the Immigration Courts is totally out of control and unacceptable. Both Congress and the Article III Courts have failed in their duties to require and enforce the “fair and impartial adjudication” required by the Fifth Amendment to our Constitution.

These grotesque derelictions of duty are inexcusable. They call not just for an independent Immigration Court but also for “regime change” in both the Executive and the Senate and a total rethinking of what qualities should be required for the privilege of serving for life in the Article III Judiciary.

While there are many Article III derelictions of duty out there (and some courageous performances, particularly among the ranks of U.S. District Judges), I’m specifically highlighting the disgraceful performance of the “J.R. Five” ☠️🤮👎🏻 on the Supremes, who have been AWOL on Due Process, immigration, human rights, and humanity itself when our country needs them most. Never again! We need a better Supreme Court, one that lives up to its role as America’s highest tribunal entrusted with protecting our Constitutional, individual, and human rights! John Marshall must be turning over in his grave with the wimpy performance of John Roberts in the face of Executive tyranny and contempt for our Constitution!

Due Process Forever! Complicit Courts & Star Chambers, Never!

This November, vote like your life depends on it! Because it does!

PWS

05-02-20

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

Laura Lynch of AILA reports:

Hi all-

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

Philip Montante- Batavia NY

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

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

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

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

Laura A. Lynch, Esq.

Senior Policy Counsel

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

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

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

Due Process Forever! Star Chambers, Never!
P

PWS

05-02-20

REGIME SCOFFLAWS STUFFED AGAIN: 7th Cir. Blasts Barr’s Bogus Battle Bashing Local Law Enforcement In Chicago, Other Cities — Unconstitutional! — Nationwide Injunction Affirmed — “But states do not forfeit all autonomy over their own police power merely by accepting federal grants.“

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca7-on-byrne-jag-grant-conditions-chicago-v-barr

Dan Kowalski reports from LexisNexis Immigration Community:

CA7 on Byrne JAG Grant Conditions: Chicago v. Barr

Chicago v. Barr

“We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny. … Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching the challenged conditions to the FY 2017 and FY 2018 grants, and that the Attorney General’s decision to attach the conditions to the FY 2017 and FY 2018 Byrne JAG grants violated the constitutional principle of separation of powers. In light of our determination as to the language in § 10153, it is unnecessary to reach the constitutionality of § 1373 under the anticommandeering doctrine of the Tenth Amendment. We affirm the district court’s grant of injunctive relief as to the application of the challenged conditions to the Byrne JAG grant program-wide now and in the future, which included enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award to grants in FY 2017, FY 2018, FY 2019 and any other future program year insofar as that denial or delay is based on the challenged conditions or materially identical conditions. We remand for the district court to determine if any other injunctive relief is appropriate in light of our determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees. Finally, because the injunctive relief is necessary to provide complete relief to Chicago itself, the concern with improperly extending relief beyond the particular plaintiff does not apply, and therefore there is no reason to stay the application of the injunctive relief.”

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

The complete 111-page decision is available at the above link.

The 7th Circuit Panel was BAUER, MANION, AND ROVNER, Circuit Judges. The opinion is by Judge Rovner. Judge Manion filed a separate opinion concurring in the legal analysis, but dissenting from the nationwide scope of the injunction.

The 7th Circuit strongly upholds the Constitutional separation of powers and local jurisdictions’ rights to police in a manner that protects their local communities. Compare this with the obsequious kowtowing to Executive abuses by the Second Circuit in State of New York v. Barr, https://immigrationcourtside.com/2020/02/27/2d-cir-to-ny-six-other-so-called-sanctuary-states-tough-noogies-trump-rules/

Some Federal Courts stand up for our rights in the face of Trump’s tyranny; others “roll over.” History will be their judge!

That being said, I wouldn’t be surprised to see the “JR Five” on the Supremes — who seldom see a White Nationalist abuse of authority picking on immigrants that they aren’t willing to validate — will “torque the law and the facts as necessary” to further the regime’s scofflaw, xenophobic agenda.

History eventually will catch up with them too. History recognizes neither life tenure nor “absolute immunity.”

Due Process Forever!

Continue reading REGIME SCOFFLAWS STUFFED AGAIN: 7th Cir. Blasts Barr’s Bogus Battle Bashing Local Law Enforcement In Chicago, Other Cities — Unconstitutional! — Nationwide Injunction Affirmed — “But states do not forfeit all autonomy over their own police power merely by accepting federal grants.“

GULAG WATCH ☠️: Another USDC Orders DHS To Release Detainee At Risk For COVID-19 — Pimentel-Estrada v. Barr, WD WA

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/court-orders-release-of-ice-prisoner-pimentel-estrada-v-barr

Dan Kowalski reports from LexisNexis Immigration Community:

Daniel M. Kowalski

29 Apr 2020

COVID-19

ICE

More

Court Orders Release of ICE Prisoner: Pimentel-Estrada v. Barr

NWIRP, Apr. 28, 2020

“Today U.S. District Court Judge Richard Martinez ordered the federal government to release an immigrant detained at the Northwest Detention Center (NWDC), AKA Northwest ICE Processing Center (NWIPC), who is at high risk of serious illness or death if he contracts COVID-19. The Court ordered the release of Mr. Pimentel, a 65-year old man who has been a lawful permanent resident in the United States since 1996, but was placed in removal proceedings after pleading guilty to a drug offense. After completing his sentence, Mr. Pimentel returned to live with his family in Salt Lake City, Utah, but was subsequently arrested by ICE in May of 2019 after he appeared for an appointment. ICE ultimately transferred Mr. Pimentel to the detention center in Tacoma, Washington.

Judge Martinez found that federal immigration authorities “detain Petitioner at the NWIPC in conditions that create a substantial risk he will be exposed to the coronavirus and contract COVID-19.”

Judge Martinez relied on declarations from public health experts stating that once COVID-19 reaches the detention center it will spread like “wildfire.” The Court noted that experts have attributed a mortality rate as high as 15% for high risk individuals who contract COVID-19. Judge Martinez ultimately concluded that “Petitioner has made a clear showing that he faces a substantial risk of serious harm due to the conditions of his present confinement and the fact that he is at higher risk for serious illness or death from COVID-19.”

Judge Martinez ordered that Mr. Pimentel be immediately released. He will now be permitted to return to live with his son and daughter-in-law in Salt Lake City while he waits for his immigration case to be completed.

The order can be viewed here.

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

Wonder how many more “Mr. Pimentels” are out there in the Gulag but in the wrong jurisdiction or without the good fortune to get the legal representation necessary to secure release?

What if we had a functional, impartial, expert U.S. Immigration Court that could order release of folks like this without protracted litigation in the U.S. District Courts? Indeed, what’s the purpose of a so-called “court system” that’s incapable of doing much of anything except “rubber stamping” the unconstitutional actions and extraordinarily poor judgments of DHS officials and their contractors?

PWS

04-30-20

ANOTHER BIG DUE PROCESS VICTORY: 3rd. Cir. Reaffirms That Due Process Applies Equally To Discretionary Relief, Finds BIA Screwed Up “Ineffective Assistance Claim,” Rejects OIL’s Attack On Due Process — Calderon-Rosas v. Atty. Gen.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-ineffective-assistance-calderon-rosas-v-atty-gen

Dan Kowalski reports from LexisNexis Immigration Community:

Daniel M. Kowalski

27 Apr 2020

ineffective assistance

CA3 on Ineffective Assistance: Calderon-Rosas v. Atty. Gen.

Calderon-Rosas v. Atty. Gen.

“Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.”

[Hats off to Petra D. Fist!]

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

Get the full decision at the link.

Panel: GREENAWAY, JR., KRAUSE, and RESTREPO,

Circuit Judges

Opinion by: Judge Krause

Here’s my favorite quote from court’s unanimous opinion written by Circuit Judge Krause:

The government’s argument, however, is one we have squarely rejected. We long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief because “Congress instructed the Attorney General to establish an asylum procedure,” and “[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.” Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum claim). “[F]airness,” we explained, “mandate[s] that the asylum procedure promulgated by the Attorney General provide the most basic of due process.” Id.; see also Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough Cham has no constitutional right to asylum, he was entitled, as a matter of due process, to a full and fair hearing on his application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74

8

(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.”).

More recently, in Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over claims for discretionary relief, we reiterated that “petitioners must receive a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.” Id. at 213 (internal quotation marks and citations omitted). That procedural due process right, we explained, is comprised of “three key protections” in immigration proceedings: “(1) ‘factfinding based on a record produced before the decisionmaker and disclosed to him or her’; (2) the opportunity to ‘make arguments on his or her own behalf’; and (3) ‘an individualized determination of his [or her] interests.’” Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)). In short, “[t]hroughout all phases of deportation proceedings, petitioners must be afforded due process of law.” Id.

So true. Yet, so often ignored in practice by the Supremes and Circuit Courts.

The current Immigration “Court” system is run by a politically biased enforcement official, Billy Barr, who solely controls judicial appointments, job retention, sets so-called “performance standards” intentionally weighted toward DHS Enforcement’s needs, establishes binding “precedents,” and changes results favorable to asylum seekers and other respondents when they don’t suit his nativist agenda. In this system, no respondent is receiving a “fundamentally fair hearing” before a “fair and impartial decision maker.”

Even if an Immigration Judge tries to act fairly in an individual case, as many do, they are still bound by the Attorney General’s pro-enforcement policies, and the specter of arbitrary reversal of results favorable to the respondent by so-called “certification” by the AG hangs over and materially compromises the entire system and every proceeding.

Indeed, by concentrating only on the small, and somewhat random, sampling of “petitions for review” that actually cross their desks, the Courts of Appeals and the Supremes are ignoring the systemic lack of fundamental due process that infects this entire dysfunctional and unfair system. Time to wake up and do the right thing!

Nice words are one thing. Actions an entirely different matter!

Due Process Forever!

PWS

04-28-20

Alex Nowrasteh @ The National Interest: The Trump-Miller “Rationale” For Their So-Called “Immigration Ban” Is The Usual Nativist BS — Actually, Migrants To The US Don’t Threaten Your Health, Job, Or Wages, But White Nationalist Malarkey Dims Our Future! — Sadly, New Poll Shows Majority Supports Latest Round Of Immigrant Bashing!

https://apple.news/A_TYTiiUWPDyeXNykbPNZtQ

Here’s three reasons why.

by Alex Nowrasteh

President Trump recently said that there were two reasons for virtually halting all immigration to the United States in response to COVID-19. The first was to prevent the spread of the disease domestically. The second was to save American jobs for American citizens. We’ve already analyzed the first claim, this post will look at whether reducing immigration further will help save jobs for Americans. The answer is no.

Unemployment is spiking during the COVID-19 crisis. Americans are reacting to the virus by changing their economic behavior by working at home where possible, spending less time in dense public places, and in numerous other ways that result in less economic activity – sometimes voluntarily and sometimes in response to government shelter in place orders. As a result, employment is falling. In this situation, many pundits are arguing that further restricting immigration will preserve jobs for American citizens. Further restrictions will have no such impact. I’ve written much about the economic effects of immigration before, but here are some big takeaway points related to the recent immigration ban:

First, immigrants come to the United States primarily because of economic opportunity. Even those coming today on green cards intended for family‐ reunification are primarily coming to reunite with family members who, at one point in the chain, came for economic reasons. If the benefits of coming to the United States are greater than the costs (psychological costs, cost of moving, opportunity cost, danger of migrating, etc.), then many people will do so.

The biggest benefit of coming to the United States is higher wages, which are higher here because immigrant workers have a greater marginal value product (MVP=the number of goods produced by a worker multiplied by the market price for those goods). That means that immigrants are more productive here than in their home countries, so they supply more goods and services that are sold at higher prices. The amazing thing about demand for labor is that it is entirely determined by the worker’s MVP.

Economists Michael Clemens, Claudio Montenegro, and Lant Pritchett estimate the place premium, which is the estimated wage benefit of moving to the United States adjusting for the cost of living through a measurement called purchasing power parity (PPP). For example, they estimate that a working age Mexican male with 9–12 years of education who was educated in his home country can expect a 2.6-fold increase in his wages. That’s an enormous gain.

Immigration slows during a recession because the number of jobs decreases and, oftentimes, wages also adjust or their growth slows. Thus, the big benefit of immigrating to the United States evaporates for many immigrants during a recession. Immigration falls during recessions because immigrants benefit less from coming here, but natives benefit less too so the government also typically responds by increasing immigration enforcement. Less commonly, the government restricts legal immigration like President Herbert Hoover did in 1929 at the beginning of the Great Depression. The flow of illegal immigrants into the United States changes most dramatically during a recession as they’re the most economically sensitive immigrants.

. . . .

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

Read the complete article at the link.

For what it’s worth, Alex’s findings match my “anecdotal observations” over more than a decade at the U.S. Immigration Court. During the earlier recession and its aftermath, other than asylum applicants, more migrants appearing at my “Master Calendar” told me that they did not want to fight their cases and just wanted to “go home,” either voluntarily or at USG expense under a “final order.” As the US economy improved, the number of non-detained individuals agreeing to voluntary departure or “taking a final order” appeared to decrease.

While, as Alex acknowledges, immigration is not “totally market driven,” particularly for those fleeing persecution, we certainly would do better as a nation to design a robust legal immigration system that worked in harmony with market forces, rather than directly against them as has too often been the case.

Generally, markets are going to be a more effective and efficient regulators of immigration than expensive, coercive, and often ineffective, “maximum enforcement.”

Indeed, when our economy was “booming,” unemployment was low, and most of the estimated 10-11 million “undocumented individuals” in the U.S. were staying out of trouble, minding their own business, employed or studying, and contributing to our economic success. The trouble was not “failed enforcement,” as the White Nationalists like to claim, but rather a failed legal immigration system that should have found ways that these individuals who form an important part of our society could have been pre-screened and admitted legally in the first place. That also would have diminished the allure of human smugglers and facilitated even greater contributions to our tax base. The answer to a clearly failed and counterproductive policy is not to double down on its cruelest and most futile aspects — unfocused enforcement,

Even in cases where immediate immigraton isn’t possible, if there is a “real line” for legal immigration (not the bogus one invented by the nativists) and it progressed reasonably and predictably, most individuals would use it. In my experience, most immigrants and employers would much prefer to use the legal system, even if it has some delays and costs, if it presents a realistic and not-cost-prohibitive alternative to “extralegal” or “black market” migration.

If we are to continue to succeed as a nation, at some point, we must stop listening to the voices of the Trumps, Millers, Sessionses, Cuccinellis, Barrs and other White Nationalist bigots urging us to “return to the failed policies of the past” and instead develop a forward looking immigration and refugee system that sees migrants for what they are: an important and necessary element of our nation and our world. It’s the right and smart thing for a “nation of immigrants” to do.

The bad news: Despite its counterfactual basis and appeal to xenophobia and racism, the “temporary” immigration ban has widespread public support, according to today’s Washington Post: https://www.washingtonpost.com/politics/americans-support-state-restrictions-on-businesses-and-halt-to-immigration-during-virus-outbreak-post-u-md-poll-finds/2020/04/27/763249ee-88af-11ea-9dfd-990f9dcc71fc_story.html

So, expect the ban to last indefinitely and to increase in scope regardless of what happens with COVID-19. Xenophobia, racism, and appeals to White Nationalism are once likely to be the centerpiece of Trump’s reelection strategy, particularly with the economy in ruins.

PWS

04-27-20

LEE SUNDAY EVANS @ WATERWELL: “The Power of Transcripts”— “It wasn’t hard to recognize the power of each individual story, and the patterns revealed when reading two, three, ten testimonies were a disturbing depiction of how the protections outlined in the Flores Settlement Agreement (FSA) were being violated.”

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

FYI, an essay by Waterwell Artistic Director Lee Sunday Evans on the company’s immigration law related work. Best, Jeff

https://howlround.com/power-transcripts

The Power of Transcripts

In July 2019, I sat down with a few people at the Immigrants’ Rights Clinic at Columbia Law School to discuss the possibility of bringing a performance of The Courtroom: a re-enactment of one woman’s deportation proceedings—a production by the New York City–based theatre company Waterwell, where I’m artistic director—to their campus. Fast forward thirty minutes and Elora Mukherjee—the director of the clinic, an immigration lawyer and professor—had our attention focused in a different direction.

Elora was describing her work as a monitor for the Flores Settlement Agreement—a court settlement that sets the time limit and conditions under which children can be held in immigration detention—over the past twelve years; two weeks earlier, she had provided testimony in front of the House Committee on Oversight and Reform about the deplorable conditions she and her colleagues had witnessed in two immigration detention facilities in Clint and Ursula, Texas. Then, Elora politely declined to bring The Courtroom to Columbia Law School—at least for the time being—and asked if Waterwell would consider making a new project using first-person testimonies of the children and young parents she had met at the border.

I’ll start at the beginning of our company’s engagement with immigration and then describe The Flores Exhibits—the project Waterwell created in response to this conversation with Elora Mukherjee.

The Courtroom. Photo by Miguel Amortegui

The Courtroom

In the summer of 2018, Arian Moayed—an actor, writer, director, and co-founder of Waterwell—was watching, along with the rest of the United States, as an increasingly heated debate about immigration enveloped our country. Family separations at the border and the uproar that followed flooded the news, along with stories about how increasingly rapid deportation proceedings were compromising due process. Arian was born in Iran, immigrated here when he was seven years old, and became a citizen when he was twenty-six. The stories of how the United States was treating immigrants hit him personally.

He thought: How can Waterwell respond? What can we do to add something meaningful to this conversation?

Then a new question crystallized in his mind: We hear about them in the media, but what does a deportation proceeding in court actually look like? How do deportation proceedings work?

While reaching out to a handful of immigration lawyers and asking them to share transcripts of deportation proceedings, Arian met Richard Hanus, an immigration lawyer in Chicago, who has been practicing for over twenty-five years. Richard shared transcripts of one case he thought might be of interest, and Arian read it right away. The case was powerful.

The transcripts gave the story a certain kind of objectivity, an unvarnished truthfulness about immigration.

A few months later, I started as the newly appointed artistic director of Waterwell. Arian and I dove into these transcripts, did a rough edit of them, then another, then another, then an intense three-day text workshop with incredible actors, and came out with a script that had a three-act structure, with all the dialogue taken entirely from the court transcripts.

We asked Jeffrey S. Chase, a former immigration judge and widely respected leader in the field, to help us understand legal terms in the transcripts and to advise us on how to make most accurate representation of immigration court. He made a terrific recommendation: Go watch some proceedings.

We met at 26 Federal Plaza, went through the metal detectors, and headed up to the floors where proceedings take place. The courtrooms are small, with drop ceilings. There are no witness boxes and there is often no lawyer representing the immigrant—if you are an immigrant required to appear in immigration court, you don’t have automatic access to legal representation. This was not news to Arian, but for me, as a person born in the United States who had never interacted with the immigration system, I found it surprising and unsettling. Immigrants represent themselves, or pay not-unsubstantial sums to hire a lawyer. Non-profits and law school clinics step in to fill this gap, but they do not—and cannot—reach everyone.

Watching court proceedings—the combination of banal procedural details and life-and-death stakes—fundamentally shaped our thinking. What we witnessed was quiet, tense, tedious, disorienting. We knew that, for our performance, we’d have to risk recreating those very dynamics. It wouldn’t be quite a play but a reenactment. As we created The Courtroom, we focused on the small, regular mistakes shown in the transcripts—awkward phrasing of a thought, the quick mistaken use of a word—embracing them as interesting windows into how people function in court when they are prepared but don’t have a script, and set out to find real courtrooms to perform in. We created the original staging in our most hallowed venue: a grand courtroom on the seventeenth floor of the Thurgood Marshall United States Courthouse, the seat of the Second Circuit Court of Appeals. Though this prestigious courtroom was very different from small, plain immigration courts, the architecture taught us a lot about how courtrooms work.

The Courtroom. Photo by Maria Baranova.

The transcripts we used to create the script were from the case of Elizabeth Keathley, an immigrant from the Philippines who came to the United States on a K3 visa after she married her husband, who was a United States citizen. After inadvertently registering to vote at the DMV in Bloomington, Illinois, receiving a voter registration card in the mail, and voting, Elizabeth had to appear in court for deportation hearings. She lost the first case, but her appeal was heard in the Seventh Circuit, where the federal judges ruled in her favor.

The first performances were terrifying. We had no idea if the piece would capture people’s interest and hold their attention. But we put our faith in how this case encapsulated the age-old adage about the personal and the political. Through this story about a married couple in the early stages of building their family, who had made one honest mistake that put the wife in danger of being deported, the audience got to see a portrait of our nation’s legal system that exposed its catastrophic flaws and showed its singular, profound potential.

We were floored by audiences’ responses to the performances and started to understand the real power of the transcripts.

The transcripts gave the story a certain kind of objectivity, an unvarnished truthfulness about immigration—a polarizing issue that seems relentlessly distorted when we encounter it in the media, something that is all the more painful because it is central to our country’s identity. Ali Noorani, director of the National Immigration Forum, put it perfectly in his book, There Goes the Neighborhood: “Immigration gets at the core of who we are, and who we want to be, as a country.”

The Courtroom gave audiences an opportunity to get closer to the immigration legal system’s inner workings. Not to be told what to think, not to be told again how bad things are, but to get closer to something true and real. It was our realization about the power of unaltered transcripts that guided us when we started to think about what to make in response to our conversation with Elora Mukherjee.

The Flores Exhibits

We told Elora we would think deeply about how we could make a meaningful project, and she said she’d send us the testimonies. We took the conversation with her very seriously, feeling a sincere responsibility as artists to take up the need she put before us but having very little idea what we could create in response.

I printed out everything Elora sent me and sat down to read the sixty-nine testimonies. I thought: Again, here is that combination of procedural banality alongside life-and-death stakes. It unnerved me. The project needed to capture that specific disorienting, haunting aspect of the testimonies. It wasn’t hard to recognize the power of each individual story, and the patterns revealed when reading two, three, ten testimonies were a disturbing depiction of how the protections outlined in the Flores Settlement Agreement (FSA) were being violated.

Here’s a quick history of the FSA and why it’s important: In 1985, a fifteen-year-old Salvadoran girl named Jenny Flores was held in substandard conditions in immigration detention for a prolonged period of time. Based on her experience, a number of legal organizations filed a lawsuit against the government, which in 1997 resulted in the Flores Settlement Agreement. This set standards for the treatment of unaccompanied children (anyone under the age of eighteen) while they are in detention, including requiring the government to provide reasonable standards of care as well as safe and sanitary living conditions, and to release minors without any unnecessary delay, setting a cap of twenty days.

It is often impossible for people held in detention to socially distance, and there are many reports that there is no access to soap or sanitizer in numerous facilities.

The sixty-nine testimonies that Elora gave us were exhibits filed by the National Youth Law Center in a temporary restraining order requesting emergency relief for minors held in Customs and Border Patrol facilities; the firsthand accounts demonstrated violations of the Flores Settlement. Wrenching news reports about children being held in detention facilities for extended period of times—sometimes in cages—without access to basic hygiene supplies and adequate nutrition or sleep were based on these lawyers’ experiences and these testimonies.

What could we create to respond? We wanted people to experience the testimonies in full. We wanted people outside of New York City, where we’re based, to hear them. We wanted to involve actors but also all the incredible people we’d met during the process of creating The Courtroom who were not actors: lawyers, former judges, immigrant-rights advocates, immigrants who are not in the arts, and playwrights, designers, and other artists invested in this issue.

We decided not to make a piece of theatre. We decided to make a series of videos.

The testimonies would be read in full, without any textual or cinematic editing. We would ask readers from different sectors of society to participate with the hope that it would demonstrate—in a quiet, un-didactic way—a wide-ranging solidarity and investment in the issue. Each reader would sit at a simple wooden table with a glass of clean water, which is often described in the testimonies as being hard for immigrants to get in detention.

The Flores Exhibits. Photo courtesy of Andrew Kluger.

We wanted the readers to be good storytellers but I directed them not to take on any “character” they gleaned from the text or embody the experience described by the person who gave the testimony to the lawyers. We said the goal was for people to hear the words as clearly as possible—without emphasis, without dramatization.

To date, we have filmed forty-three out of the sixty-nine testimonies and are working to complete the filming of the remaining ones. This coming fall, we hope to instigate and facilitate live screenings of The Flores Exhibits around the country as a way to bolster support, organizing, and advocacy for the protections outlined in the Flores Settlement Agreement to be upheld and improved.

Taking Action

Right now, there are efforts around the country to decarcerate as many people held in jails, prisons, and detention facilities as possible due to the amplified dangers posed by COVID-19 to anyone in this kind of environment. It is often impossible for people held in detention to socially distance, and there are many reports that there is no access to soap or sanitizer in numerous facilities.

Using excerpts from videos in The Flores Exhibits, we released this ninety-second video connecting firsthand testimonies of people held in detention in June 2019 to the urgent need to get people out of detention during the COVID-19 pandemic.

If you are interested in getting involved, here are a few ways to start:

Find out where there are detention facilities near you: local jails and prisons often have contracts with ICE, and there are dedicated ICE facilities, often in rural areas. Once you know where those facilities are in your state, follow them in the news and connect with and support local organizations and elected representatives who advocate for the release of immigrants, proper living conditions, and access to healthcare in detention. (For a full explanation of government agencies involved in immigration detention, watch this video.)
Join and amplify the efforts of Detention Watch Network, a coalition of eight hundred organizations around the country to get urgent messages to governors, ICE directors, sheriffs, and other represented officials to release people from detention during COVID-19.
Join New Sanctuary’s efforts to advocate to free unaccompanied minors held in immigration detention.
Join Freedom for Immigrants to get involved in your area.
Read the Southern Border Community Coalition’s New Border Vision so you can be part of their proactive movement to transform culture, values, and policy at our southern border.

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

Think about the grotesque perversions of justice going on in the US today! Desperate kids seeking protection and entitled to legal process being illegally held in detention as unlawful punishment and coercion in violation of U.S. Court orders.

Some of the criminals who masterminded and carried out these illegal, unethical, and totally immoral schemes not only remain free but, outrageously, are on our public payroll: Thugs like Stephen Miller, Chad Wolf, Billy Barr, and Ken Cuccinelli. “Cooch Cooch” actually continues to spew his vile propaganda after being held by a Federal Judge to have been illegally appointed.

Another notorious human rights criminal and child abuser, Jeff “Gonzo Apocalypto” Sessions, remains at large and is outrageously running for return to the Senate, a position he already had abused and misused to promote a White Nationalist racist agenda in the past.

Still others like “Big Mac With Lies” and Kirstjen Nielsen are also at large, disingenuously trying to “reinvent” themselves by having the audacity to tout their past criminal activities, public lies, and human rights abuses as “senior executive experience.”

As these transcripts show, it’s a “world turned upside down” under the vile Trump kakistocracy. But, we all have a chance to redeem our nation in November by voting the kakistocracy out and re-establishing honesty, human values, mutual respect, cooperation, our Constitution, and the rule of law as the hallmarks of America.

On the other hand, the despicable performance by those public officials who abandoned their legal and moral obligations to humanity also shines a light on the many unsung heroes of our time: folks like Professor Elora Mukherjee, Lee Sunday Evans, Arian Moayed, Judge Jeffrey Chase, and the many other members of the New Due Process Army throughout the U.S. Unlike many of our public officials, they are standing up for Due Process and the rule of law in the face of seemingly never-ending tyranny, racism, xenophobia, and hate-mongering from the Trump regime.

Due Process Forever! The Regime’s Continuing Child Abuse ☠️☠️ Never!

PWS

04-26-20

DUE PROCESS/GENDER-BASED ASYLUM WINS: 1st Cir. Slams BIA, Sessions’s Matter of A-B- Atrocity – Remands For Competent Adjudication of Gender-Based Asylum Claim — DE PENA-PANIAGUA v. BARR

DE PENA-PANIAGUA v. BARR, 1^st Cir., 04-24-20, published

OLBD OPINION VACATING AND REMANDING

PANEL: Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

OPINION BY: Judge Kayetta

KEY EXCERPTS (Courtesy of Amer S. Ahmed, Esquire, Gibson Dunn, Pro Bono Counsel for the Round Table of Former Immigration Judges as Amici):

[The BIA] added, however, that “[e]ven if [De Pena] had

suffered harm rising to the level of past persecution,” De Pena’s

proposed particular social groups are analogous to those in Matter

of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014), which the BIA

understood to have been “overruled” by the Attorney General in

Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018). The BIA read

A-B as “determin[ing] that the particular social group of ‘married

women in Guatemala who are unable to leave their relationship’ did

not meet the legal standards to qualify as a valid particular

social group.”

…

That conclusion poses two questions to be resolved on

this appeal: First, does A-B categorically reject any social group

defined in material part by its members’ “inability to leave” the

relationships in which they are being persecuted; and, second, if

so, is A-B to that extent consistent with the law?

…

Is it reasonable to read the law as supporting such a categorical

rejection of any group defined by its members’ inability to leave

relationships with their abusers? A-B itself cites only fiat to

support its affirmative answer to this question. It presumes that

the inability to leave is always caused by the persecution from

which the noncitizen seeks haven, and it presumes that no type of

persecution can do double duty, both helping to define the

particular social group and providing the harm blocking the pathway

to that haven. These presumptions strike us as arbitrary on at

least two grounds.

….

First, a woman’s inability to leave a relationship may

be the product of forces other than physical abuse. In

Perez-Rabanales v. Sessions, we distinguished a putative group of

women defined by their attempt “to escape systemic and severe

violence” from a group defined as “married women in Guatemala who

are unable to leave their relationship,” describing only the former

as defined by the persecution of its members. 881 F.3d 61, 67

(1st Cir. 2018). In fact, the combination of several cultural,

societal, religious, economic, or other factors may in some cases

explain why a woman is unable to leave a relationship.

…

We therefore do not see any basis other

than arbitrary and unexamined fiat for categorically decreeing

without examination that there are no women in Guatemala who

reasonably feel unable to leave domestic relationships as a result

of forces other than physical abuse. In such cases, physical abuse

might be visited upon women because they are among those unable to

leave, even though such abuse does not define membership in the group

of women who are unable to leave.

…

Second, threatened physical abuse that precludes

departure from a domestic relationship may not always be the same

in type or quality as the physical abuse visited upon a woman

within the relationship. More importantly, we see no logic or

reason behind the assertion that abuse cannot do double duty, both

helping to define the group, and providing the basis for a finding

of persecution. An unfreed slave in first century Rome might well

have been persecuted precisely because he had been enslaved (making

him all the same unable to leave his master). Yet we see no reason

why such a person could not seek asylum merely because the threat

of abuse maintained his enslaved status. As DHS itself once

observed, the “sustained physical abuse of [a] slave undoubtedly

could constitute persecution independently of the condition of

slavery.” Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.

694 (A.G. 2005).

For these reasons, we reject as arbitrary and unexamined

the BIA holding in this case that De Pena’s claim necessarily fails

because the groups to which she claims to belong are necessarily

deficient. Rather, the BIA need consider, at least, whether the

proffered groups exist and in fact satisfy the requirements for

constituting a particular social group to which De Pena belongs.

Amer S. Ahmed

GIBSON DUNN

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

Read the full opinion at the link above.

While Judge Kayetta does not specifically cite our Round Table’s brief, a number of our arguments are reflected in the opinion. Undoubtedly, with lots of help from Amer and our other superstar friends over at Gibson Dunn, we’re continuing to make a difference and hopefully save some deserving lives of the refugees intentionally screwed by our dysfunctional Immigration Court system under a politicized DOJ.

I’ve heard of the bogus rationale used by the BIA in this case reflected in a number of wrongly decided unpublished asylum denials by both the BIA and Immigration Judges. This should make for plenty of remands, slowing down the “Deportation Railroad,” jacking up the backlog, and once again showing the “substantial downside” of idiotic “haste makes waste shenanigans” at EOIR and allowing biased, unqualified White Nationalist hacks like Sessions and Barr improperly to interfere with what are supposed to be fair and impartial adjudications consistent with Due Process and fundamental fairness.

Great as this decision is, it begs the overriding issue: Why is a non-judicial political official, particularly one with as strong a prosecutorial bias as Sessions or Barr, allowed to intervene in a quasi-judicial decision involving an individual and not only reverse the result of that quasi-judicial tribunal, but also claim to set a “precedent” that is binding in other quasi-judicial proceedings? Clearly, neither Ms. De Pena-Paniagua nor any other respondent subject to a final order of removal under this system received the “fair and impartial decision by an unbiased decision-maker” which is a minimum requirement under the Due Process Clause of the Fifth Amendment.

Let’s put it in terms that an Article III Circuit Court Judge should understand. Suppose Jane Q. Public sues the United States in U.S. District Court in Boston and wins a judgment. Unhappy with the result, Attorney General Billy Barr orders the U.S. District Judge to send the case to him for review. He enters a decision reversing the U.S. District Judge and dismissing Public’s claim against the United States. Then, he orders all U.S. District Judges in the District of Massachusetts to follow his decision and threatens to have them removed from their positions or demoted to non-judicial positions if they refuse.

The First Circuit or any other Court of Appeals would be outraged by this result and invalidate it as unconstitutional in a heartbeat! They likely would also find Barr in contempt and refer him to state bar authorities with a recommendation that his law license be revoked or suspended.

Yet this is precisely what happened to Ms. A-B-, Ms. De Pena Paniagua, and thousands of other asylum applicants in Immigration Court. It happens every working day in Immigration Courts throughout the nation. It will continue to happen until Article III Appellate Judges live up to their oaths of fealty to the Constitution and stop the outrageous, life-threatening miscarriages of justice and human dignity going on in our unconstitutional, illegal, fundamentally unfair, and dysfunctional Immigration Courts.

Due Process Forever!

PWS

04-24-20

TWO-FER: Billy Barr Assaults First & Fifth Amendments In Frivolous Attack On NAIJ — Seeks To Harass, Silence Immigration Judges’ Union For Fearlessly Speaking Out Against Demise Of Due Process, Improper Political Influence, Gross Mismanagement In America’s Most Unfair & Dysfunctional “Courts!”

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

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ — Judge Dorothy Harbeck Secretary/Treasurer of the NAIJ

Immigration TFL_Mar-Apr2020

Judge Amiena Khan and Judge Dorothy Harbeck (in their capacities as NAIJ Officers) write in the Federal Lawyer:

DOJ Tries to Silence the Voice of the Immigration Judges—Again!

The Second Attempt to Decertify the National Association of Immigration Judges

by Judge Amiena Khan and Judge Dorothy Harbeck

Immigration Law

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) and serves as the co-chair of the NAIJ Vulnerable Populations Committee. Judge Khan was appointed by Attorney General Eric Holder in December 2010. She is seated at the New York Immigration Court and is a member of the New York State Bar. Judge Khan is the programs chair of the FBA Immigration Law Section and is also a member of the National Association of Women Judges.

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ. She is also an adjunct professor of law at Columbia and Rutgers. She
is a fellow of the Federal Bar Foundation, is on the Executive Board of the FBA Immigration Law Section, and is a member of the bar in New Jersey and New York.

The 2019 DOJ Petition for Decertification
In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—origi

The 2019 DOJ Petition for Decertification

In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—originally certified in 1979 as the recognized representative for collective bargaining for all U.S. IJs—is a voluntary association that represents and speaks for the interests of the nation’s 440 IJs. The NAIJ was formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the immigration courts. DOJ asserts that IJs should be reclassified as “management officials.” This would mean IJs could no longer union- ize, be part of a collective bargaining unit, or speak independently.

NAIJ serves as the only voice of the IJs who cannot speak out without prior express permission of DOJ’s Executive Office for Immigration Review (EOIR).2 NAIJ serves to afford transparency and accountability. The immigration courts are not independent courts under Article I or Article III of the Constitution. They are wholly contained within DOJ. Without a union,

IJs have no protection against the politicization of the process and their decisions. Without transparency,

the integrity of the process is in jeopardy. Without a union, the IJs cannot protest policy measures, such as the imposition of quotas and performance measures; the IJs cannot contest the numerous policies enacted by EOIR that encroach upon and undermine the inde- pendent decision-making ability of the IJs; and the IJs will not be able to rally against the effective speedup of the workforce, placing due process and fundamental fairness of the proceedings at risk.

How the Process Works

The burden to show that IJs are management officials is on the moving party (i.e., DOJ). The FLRA regional director (RD) has opened an investigation into the

NAIJ, seeking information about its responsibilities. DOJ can submit factual and legal arguments in support of its petition. The RD can then issue a decision or request a hearing to solicit more information. Either party can appeal the RD’s decision to the full FLRA board.

The Unsuccessful 2000 Attempt to Decertify

the Immigration Judges’ Union

This current effort follows a similar, and unsuccessful, strategy pursued by DOJ to decertify the immigration judges’ union approximately 20 years ago. In Septem- ber 2000, the FLRA’s RD rejected DOJ’s argument, and the full FLRA upheld the RD’s decision on appeal. In that prior decertification attempt,3 the FLRA reject- ed DOJ’s argument that IJs make policy through the issuance of decisions, noting that the trial court level IJs do not set precedent and that their rulings are often appealed and reviewed. The FLRA also said that the immigration court system was established specifically so that IJs do not maintain any management duties to enable them to focus on hearings.

The FLRA also ruled that there is a distinct differ- ence between the trial level IJs and the appellate level Board of Immigration Appeals (BIA) members.4 The description of the duties of the IJ were described in the 2000 decertification attempt:

The daily routine of an Immigration Judge involves hearing and deciding cases that arise from the operation of the INS.5 A court’s juris- diction to decide these cases is determined at the time a case is filed. After filing, the cases are randomly assigned by the court administrator to an individual Judge and placed on a Judge’s calendar on his or her master calendar day. At that time, the Judge hears presentations from the parties and their attorneys, identifies the is- sues, and advises individuals as to their right to

March/April 2020 • THE FEDERAL LAWYER • 9

representation. The Judge also sets time frames and briefing schedules, as well as the date for trial.6

The nature of the IJs’ decisions and their position in the hierarchy of binding the EOIR was also set forth:

During a trial, the parties are represented by counsel and the rules of evidence are observed. Thereafter, in arriving at their decisions, Immigration Judges are required to apply immigra- tion statutes, applicable regulations, published decisions of the Board of Immigration Appeals and federal appellate courts, and other foreign and state laws. After the trial, the Judge issues his or her decision, almost always orally, and advises the parties of their appeal rights. Oral decisions are not tran- scribed unless they are appealed; are not published; and are final and binding only with respect to the parties to the case. With limited exception, decisions of the Immigration Judges may be appealed to the Board of Immigration Appeals and review of their decisions is de novo. Certain cases may also be appealed to the appropriate U.S. circuit court.7

Citing its precedential case on the managerial status of BIA members (hereinafter “the BIA Management Case”),8 the FLRA specifically stated that the BIA appellate judges were management officials within the meaning of section 7103(a)(11) of the statute and, therefore, could not be included in the existing bargaining unit. In particular, it concluded that “the incumbent Board Member directly influences activity policy through his participation in the interpreta- tion of immigration laws and the issuance of decisions and, thereby, meets the definition of a management official set forth in section 7103(a)(11) of the Statute.”9

In the 2000 decertification attempt, the RD applied the BIA Management Case and concluded that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are

not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review.”10 The RD accordingly concluded that the decisions of the judges do not in- fluence and determine the Agency’s immigration policy, in contrast to the decisions of the BIA.

The FLRA concurred that the RD’s definition of a management official is defined as “an individual employed by an agency in a posi- tion the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.”11

Critically, the full FLRA also found that management officials are individuals who: “(1) create, establish or prescribe general princi- ples, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agen- cy; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency.”12

The FLRA distinguished the trial court IJs from the BIA appellate judges by specifically holding that IJs do not “make policy through the issuance of their decisions … that in arriving at their decisions, Immigration Judges are required to apply immigration laws and reg- ulations, that their decisions are not published and do not constitute precedent.” Finally, the RD observed that the decisions are binding only on the parties to the case, are “routinely” appealed, and are subject to de novo review.13 There is no difference in this now.

The FLRA specifically agreed with the RD’s rejection of the EOIR’s claims that “the sheer volume of decisions issued by the [immigration] Judges and the finality of their decisions, unless they are appealed,” affect the EOIR’s policy. This is because “no matter the volume of decisions issued, or number of appeals filed, the fact remains that when an Immigration Judge issues a decision [,] he or she is applying and following established Agency law and policy.”14 Again, there is no difference in this now.

While IJs have some authority to control practice in their own courtrooms, they have no authority to set overall policy as to how the courts as a whole will operate. Nor, critically, do they have the authority to direct or commit the EOIR to any policy or course of action. The IJs are highly trained professionals with the extremely important job of adjudicating cases.15 This organizational structure and supervisory delegation was established specifically so that the IJs are unencumbered by any supervisory and management obligations and are free to concentrate on hearings.16 Aspirationally, this is still the position of the IJs.

. . . .

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

Read the rest of the article at the link. Many thanks to Judge Khan and Judge Harbeck for courageously speaking out and informing us in such a well-documented and scholarly manner.

It’s disgraceful that political leaders who are supposed to be committed to our Constitution and the rule of law instead misuse government funds and abuse their authority to cover up their wrongdoing and mismanagement. In a functional government, Barr and his toadies would be facing impeachment or referral for criminal investigation from Congress for their abuses of authority and attacks on our Constitution. Most certainly, a competent Congress would long ago have removed EOIR from the clutches of the DOJ politicos and placed it where it belongs: as an independent court system under either Article I or Article III.

Due Process Forever!

PWS

04-23-20

🏴‍☠️🆘 AMERICAN NIGHTMARE: THIS DEADLY ☠️🤮 “CLOWN SHOW” 🤡 IS A “COURT” SYSTEM? — You’ve GOT To Be Kidding! — “’Everyone feels the message is, nobody cares if you die as long as we get our numbers,’ said one worker in the office. . . . ‘I feel like half the time, I’m working on Trump’s reelection,’ said an employee in the office who spoke anonymously because of concerns about retaliation. ‘This is just a piece for him to tout when reelection time comes up about how much he’s getting done.’” — Politico’s Betsy Woodruff Swan Takes Us Inside “HQ” In America’s Most Morally Corrupt Court System, Where “Trumpian” Contempt For Due Process & Human Lives ☠️ Extends To Its Own Employees, Many Of Them Lower-Paid Clerical Staff!

https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075

Betsy Woodruff Swan reports for Politico:

The union for lawyers and support staff who handle Justice Department immigration appeals says their office’s working conditions put workers’ lives in danger. And employees in the DOJ office handling those immigration appeals said many suspect it’s because the department prioritizes high deportation numbers over worker safety.

“I feel like half the time, I’m working on Trump’s reelection,” said an employee in the office who spoke anonymously because of concerns about retaliation. “This is just a piece for him to tout when reelection time comes up about how much he’s getting done.”

It’s an accusation a spokesperson for the office vehemently denied. But the conflict is no longer being kept in the DOJ family; the president of that union recently filed a complaint with the Occupational Safety and Health Administration (OSHA), saying management requires too many people to come into the office, putting workers at risk of contracting Covid-19, the sickness caused by the novel coronavirus. Concerns in the office about worker safety were first reported by Government Executive.

At issue are working conditions in DOJ’s Executive Office for Immigration Review (EOIR). The office oversees America’s immigration courts––which are part of the Justice Department––and lawyers there handle appeals from immigrants fighting deportation orders. Those courts face a mammoth backlog of more than one million cases, by Syracuse University’s count. Despite hiring more immigration judges, the backlog has doubled under the Trump administration.

EOIR leaders have maximized how much telework employees there can do, the spokesperson said, adding that the office “takes the safety, health, and well-being of its employees very seriously.”

But the OSHA complaint, which Politico reviewed, says the office is violating a federal law mandating workplaces be free of “hazards that are causing or are likely to cause death or serious physical harm.”

“The agency’s actions described below are proliferating the spread of a known and deadly contagion both within our building and to our surrounding communities,” the complaint reads. The office policies “are expected to result in death and severe health complications and/or possible life-long disabilities,” it says.

The office requires most support staff to come in, rather than telework, as they deal with physical pieces of paper and files as part of their work, per the complaint. The few who can work from home can only do so once a week, and on rotating days because they share the same laptop, the complaint reads. At work, support staff sit in cubicles in a shared area, “in direct breathing paths of each other,” it says.

Nancy Sykes, the president of American Federation of Government Employees Local 3525, filed the complaint on behalf of the union. It represents non-managerial Board of Immigration Appeals employees in the office, including attorneys, paralegals, clerks, and legal assistants.

The EOIR spokesperson, meanwhile, said the office is working to implement coronavirus guidance from the Centers for Disease Control and Prevention, the Office of Personnel Management, and the General Services Administration.

. . . .

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

Read the rest of Betsy’s report at the link. Long a superstar at The Daily Beast, and an articulate “repeat panelist” on “Meet the Press” with Chuck Todd, it’s great to have Betsy “back on the immigration beat” as a part of her “new portfolio” over at Politico. I’ve always found Betsy’s clear prose and insightful analysis enlightening!

Typically within the Trump immigration kakistocracy, the harshest consequences fall jump-on the most vulnerable. In Immigration Court, it’s often unrepresented asylum seekers, some of them mere children, being railroaded through the system with regard to neither due process nor a legally correct application of asylum law. Here, the brunt of the latest EOIR assault on human dignity during the pandemic appears to fall on the support staff at the “bottom of the totem pole” of EOIR’s “bloated at the top,” yet astoundingly misdirected and consequently inefficient, bureaucracy. What a way to run the railroad — even a “Deportation Railroad!” 🚂

As my good friend and Round Table colleague, Judge Jeffrey Chase said: “In spite of having very genuine concerns, the BIA staff are generally off the radar. Thanks to Betsy for spotlighting them. The BIA staff union and the NAIJ put out a joint statement yesterday; let’s hope this begins a period of increased communication and cooperation.”

Many of us “old timers” remember a bygone era when the BIA staff was considered one of the premier places for career attorneys to work at the DOJ. This was largely because staff were treated “like family.” The BIA, in cooperation with the union, actually “pioneered” things like “flexible work schedules” and “work from home” at the DOJ. That union (of which I actually was among the “founding members” back in the 1970’s) was perhaps the first one at the DOJ to represent the interests of both attorneys and support staff. Those times sadly are long gone.

As I’ve mentioned before, under the Trump regime, EOIR “non-management” employees at all levels levels are treated with a disrespect, intentional demeaning, and callous disregard for health and welfare usually reserved for those poor souls trapped in what passes for an immigration justice system under the White Nationalist driven Trump regime. Risking employees’ lives to promote Trump’s reelection agenda? That’s actually illegal on a number of accounts. But, don’t expect any corrective actions in an era where the “rule of law” has been willfully distorted and undermined as Congress and the Article IIIs simply melt away under Trump’s contemptuous scofflaw onslaught.

Unhappily, as Betsy’s article highlights, there appears to be little chance of meaningful change unless and until enough employees actually start dropping dead, by which time it will be too late.

But, as I keep pointing out, there are “other villains” here. Despite DOJ/EOIR efforts to suppress truth, all of this basically is happening in “plain sight,” as we know from folks like Judge Ashley Tabaddor, the NAIJ, the BIA union, former Judges on the Round Table who are speaking out, courageous employees willing to “blow the whistle” anonymously, as well as reporters like Betsy, Erich Wagner at Government Executive (who “broke” this story), and Malathi Nayak at Bloomberg News, to name just a few. The unconstitutional mockery of Due Process, immigration, and asylum laws in Immigration Court hearings is documented in verbatim transcripts available to the Article III Courts and the Congress.

Yet, Congress and the Article III Courts let these grotesque abuses within our justice system go on largely unabated. It’s a disgusting and disturbing saga of the breakdown of America’s democratic institutions and their replacement by an authoritarian, “Third-World style” kakistocracy, headed by a dangerously incompetent and unrestrained clown 🤡 whom those charged with protecting us and our institutions refuse to hold accountable.

This November, vote like your life depends on it! Because it does!🇺🇸 We need “regime change” at all levels. And, that certainly includes a better, more courageous, more scholarly Federal Judiciary that understands immigration and human rights, believes in Due Process and fundamental fairness for all under law, and will finally stand up and put an end to these gross abuses if Congress doesn’t act first. Obviously, it’s also essential to get a new Executive committed to advancing, rather than destroying, our Constitution and the rule of law and who will strive for best, rather than worst, practices in all phases of government.

Due Process Forever! Clown Courts 🤡☠️ Never!

PWS

04-23-20

INSANITY ALWAYS ON THE DOCKET @ EOIR: Court Cleaners In Hazmat Suits Add To The “Clown Court” 🤡 Atmosphere — But, Those Forced To Risk Their Lives ☠️ To Keep The Deportation Railroad 🚂 Rolling Aren’t Laughing 😰!

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

Trump’s ‘Deportation Machine’ Keeps Growing Despite Pandemic – Bloomberg

Malathi Nayak reports for Bloomberg News:

As President Donald Trump prepares to pause immigration into the U.S., the court system that handles the removal of immigrants is projected to issue nearly 60% more deportation orders than last year.

With the rest of the U.S. legal system grinding to a near halt amid the pandemic, at the nation’s 69 federal immigration courts cleaning crews clad in hazmat suits are regularly used to make sure in-person hearings can continue. The courts are moving at speed to reduce a massive backlog of cases despite outdated technology and criticism from advocacy groups and a union representing most of the nation’s 460 immigration judges, who say the pace is putting people at risk of infection.

“The deportation machine has not stopped,” said Florida immigration lawyer Ira Kurzban. “It’s somewhat outrageous given the current circumstances.”

While the number of people deported from the U.S. fell in March, one research group predicts that the total number of deportation orders will rise for the 2020 fiscal year, despite the pandemic. The Transactional Records Access Clearinghouse, a Syracuse University group that tracks government enforcement actions, estimates there will be 340,500 deportation orders in the year ending Sept. 30, 2020, up from 215,535 for the prior year. A spokeswoman for the Justice Department, which oversees immigration courts, declined to comment on the projection, saying it doesn’t certify third-party statistics.

The National Association of Immigration Judges says the continued operation of the courts is unsafe and has called for them to be closed. The Trump administration in 2018 set a quota for each immigration judge to close 700 cases a year, a requirement that remains in force during the pandemic, said Ashley Tabaddor, president of the union.

‘Hobbesian Choice’

U.S. immigration judges are “being forced into this Hobbesian choice of risking their health and having to keep their jobs,” said Tabaddor. She cites a colleague who is trying to meet his quota while minimizing his health risk as a throat cancer survivor.

Along with the judges, 1,200 support staff work in the nation’s immigration courts. Those courts are taking precautionary steps similar to those elsewhere in the federal system “to reduce the likelihood of exposure to Covid-19,” including holding hearings via phone or video conference whenever possible, according to Kathryn Mattingly, a Justice Department spokeswoman. Hearings involving people not in custody have also been suspended until May 15.

But judges and lawyers said it is harder for the immigration courts to operate remotely than other federal courts. While electronic document filing is routine in other federal courts, the immigration courts have struggled to introduce it, leaving most documents in paper form. Though some filings are now accepted by email, the many court employees without laptops need to come into the office to access them.

“The immigration courts are probably 20 years behind federal courts in terms of technology,” said Jeff Chase, a former immigration judge. Moreover, some immigration courts have rules where opting for a phone hearing means giving up the right to object to documents submitted by ICE, he said.

The current situation has immigration lawyers choosing between their personal well-being and a client’s future, Chase said. “Lawyers should not be put in this position.”

. . . .

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

Read the rest of the article at the link.

Nice quotes from Judges Tabaddor and Chase!

Actually, when the “off docket”cases are factored in, the backlog exceeds 1.4 million cases. Even with artificially accelerated production, and if no new cases were filed by DHS (reality check — receipts have been exceeding completions for years) it would take until 2024 to “clear” the existing backlog. But, the reality is that even by speeding up the “Deportation Railroad,” adding new often inadequately trained judges largely from the ranks of prosecutors, eliminating Due Process, demeaning their own employees, and unethically skewing the law against migrants, EOIR has been unable to reduce the backlog by even one case under the Trump regime!

Indeed, when all of the pending and “off docket” cases are considered, the already large backlog left behind by the Obama Administration has more than doubled, and is well on its way to tripling, under the Trump regime’s “malicious incompetence” and pattern of often illegal and irrational behavior. Many of the “final orders of deportation” being cranked out by EOIR are either legally wrong or counterproductive — deporting harmless individuals who actually are productive members of our society, often with U.S. citizen family members. This system, including the mindless abuse of docket space by DHS Enforcement and “Aimless Docket Reshuffling” by EOIR, is broken! Yet, it’s allowed to continue grinding away, putting lives in danger in more ways than one.

And, speaking of incompetence, whether malicious or not, I was on the initial “E-Filing Group” that submitted comprehensive recommendations and a detailed plan for implementing e-filing to ”EOIR management” back in 2001 or 2002. Since then, successive waves of EOIR “management” have squandered time, money, and public trust without producing a usable product. Meanwhile, almost every other court in America has designed and implemented e-filing systems. This catastrophic failure in and of itself would more than justify eliminating EOIR and replacing it with a judicially-managed, independent, professionally administered court system that would guarantee due process, efficiency, and fundamental fairness for all.

But, that’s by no means the only problem at EOIR. It’s unconstitutional, unfair, dysfunctional, unprofessional, and downright dangerous. I have posted recently about how Courts of Appeals continue to find that the BIA has grossly misinterpreted, distorted, and/or misapplied both law and facts in “life or death cases.” Is “good enough for government work” really OK for human lives? That neither Congress nor the Article III Courts have had the guts and decency to put an end to this life-threatening farce staining our justice system is an unforgivable national disgrace.

Those of us who understand exactly what’s happening at EOIR under the Trump kakistocracy might at the moment be powerless to change it. But, we’re continuing to challenge the unacceptable status quo and making a public record of this grotesque malfeasance and of those in all three branches of Government who are “papering over” (and by doing so enabling) EOIR’s abuses. Eventually, positive change will come. The only question is how many lives and futures will unnecessarily be lost before it does?

Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!

PWS

04-23-20

“DUH” ARTICLE OF DA’ DAY: The Ban Is (Yet Another) Scam! 🆘🤥👎🏻

https://www.washingtonpost.com/opinions/2020/04/21/trumps-new-immigration-ban-is-scam-dont-pretend-otherwise/

Greg Sargent writes in the WashPost:

There is a single, overarching reality that President Trump cannot make disappear: Due to his pathological unwillingness to take coronavirus seriously, Trump catastrophically squandered numerous early weeks that could have been used to develop a much more robust federal response, and right now we’re living through the horrible consequences.

Trump’s new suspension on immigration, which he “announced” on Twitter late last night, should be seen through this prism.

The new suspension has two rationales, according to Trump and White House officials: To continue combating coronavirus and to protect U.S. workers amid a crushing economic downturn.

It will do neither of those things in any meaningful sense — which means that it won’t have the impact that Trump himself says it’s designed to.

According to the New York Times, Trump will sign an executive order that temporarily bars “the provision of new green cards and work visas,” which means the administration will “no longer approve any applications from foreigners to live and work in the United States for an undetermined period of time.”

It’s hard to say how much of an impact this will have. As the Wall Street Journal points out:

Administration officials said the order wouldn’t make substantial changes to current U.S. policy. Even without an executive order, the administration has already all but ceased nearly every form of immigration. Most visa processing has been halted, meaning almost no one can apply for a visa to visit or move to the U.S. Visa interviews and citizenship ceremonies have been postponed and the refugee program paused.

Immigration analyst Sarah Pierce notes that a lot will turn on details, such as whether this suspension applies to foreign nationals already here and applying for green cards or trying to renew visas, or if it only applies to people outside the country who want to come here, which is effectively no longer possible already.

“If they want to make official what’s already in place, it would make a flashy statement while having minimal impact,” Pierce told me, adding that if they did apply it to people who are already here as well, it could be a lot worse.

President Trump on April 20 said he will issue an executive order temporarily suspending all immigration into the country. (Reuters)

We’ll see soon enough. But we can say right now that this isn’t a solution to the current problems we face on coronavirus, because those problems are rooted in the spread that already took place here. We are starting to bend the curve through social distancing — which Trump long resisted, and which he then tried to undo prematurely before backing off.

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

Yup! You can read the rest of Greg’s article at the link.

Now, in a real democracy, with an independent judiciary, we’d expect immediate and forceful repudiation and perhaps sanctions against the Executive for this latest racist scam.

But, as I have pointed out many times, the “J.R. Five” on the Supremes has a never-ending appetite for putting the law, our Constitution, and simple human decency aside and blindly supporting, enabling, and encouraging the White Nationalist regime in its various immigration scams and shenanigans. They are all as transparently bogus as this one. Trump makes an off the wall political statement out of the White Nationalist playbook and the minions run around trying to engineer and fabricate a legal pretext. The lower Federal Courts often immediately see through the fraud; but, the Supremes step in to rescue the racist agenda, sweep it under the carpet, and in doing so “greenlight” the next extreme step.

Sadly, even regime change won’t be enough to immediately restore courage, integrity, and human decency to our failed highest court. But, it will be a start. Sometimes, “internal rebellion from below” can force change, or at least some integrity and accountability, back into a failing judicial system.

Due Process Forever! White Nationalist Scams Never!

PWS

04-21-20

FAILED STATE: America’s “Clown Prince” 🤡 More Like Infamous Marshal Petain Than Leader Of The Free World — “But the leader he brings to mind is Marshal Philippe Pétain, the French general who, in 1940, signed an armistice with Germany after its rout of French defenses, then formed the pro-Nazi Vichy regime. Like Pétain, Trump collaborated with the invader and abandoned his country to a prolonged disaster. And, like France in 1940, America in 2020 has stunned itself with a collapse that’s larger and deeper than one miserable leader,” Says George Packer @ The Atlantic!🆘😰👨🏻‍⚖️

Henri Petain
Famous French Collaborator/Traitor

Trump Clown — Donald J. Trump
Famous American Clown

George Packer
American Journalist, Author, Playwright

https://www.theatlantic.com/magazine/archive/2020/06/underlying-conditions/610261/

Packer writes in The Atlantic:

When the virus came here, it found a country with serious underlying conditions, and it exploited them ruthlessly. Chronic ills—a corrupt political class, a sclerotic bureaucracy, a heartless economy, a divided and distracted public—had gone untreated for years. We had learned to live, uncomfortably, with the symptoms. It took the scale and intimacy of a pandemic to expose their severity—to shock Americans with the recognition that we are in the high-risk category.

This article appears in the Special Preview: June 2020 issue.

The crisis demanded a response that was swift, rational, and collective. The United States reacted instead like Pakistan or Belarus—like a country with shoddy infrastructure and a dysfunctional government whose leaders were too corrupt or stupid to head off mass suffering. The administration squandered two irretrievable months to prepare. From the president came willful blindness, scapegoating, boasts, and lies. From his mouthpieces, conspiracy theories and miracle cures. A few senators and corporate executives acted quickly—not to prevent the coming disaster, but to profit from it. When a government doctor tried to warn the public of the danger, the White House took the mic and politicized the message.

Every morning in the endless month of March, Americans woke up to find themselves citizens of a failed state. With no national plan—no coherent instructions at all—families, schools, and offices were left to decide on their own whether to shut down and take shelter. When test kits, masks, gowns, and ventilators were found to be in desperately short supply, governors pleaded for them from the White House, which stalled, then called on private enterprise, which couldn’t deliver. States and cities were forced into bidding wars that left them prey to price gouging and corporate profiteering. Civilians took out their sewing machines to try to keep ill-equipped hospital workers healthy and their patients alive. Russia, Taiwan, and the United Nations sent humanitarian aid to the world’s richest power—a beggar nation in utter chaos.

Adam Chilton, Kevin Cope, Charles Crabtree, and Mila Versteeg: Red and blue America agree that now is the time to violate the Constitution

Donald Trump saw the crisis almost entirely in personal and political terms. Fearing for his reelection, he declared the coronavirus pandemic a war, and himself a wartime president. But the leader he brings to mind is Marshal Philippe Pétain, the French general who, in 1940, signed an armistice with Germany after its rout of French defenses, then formed the pro-Nazi Vichy regime. Like Pétain, Trump collaborated with the invader and abandoned his country to a prolonged disaster. And, like France in 1940, America in 2020 has stunned itself with a collapse that’s larger and deeper than one miserable leader. Some future autopsy of the pandemic might be called Strange Defeat, after the historian and Resistance fighter Marc Bloch’s contemporaneous study of the fall of France. Despite countless examples around the U.S. of individual courage and sacrifice, the failure is national. And it should force a question that most Americans have never had to ask: Do we trust our leaders and one another enough to summon a collective response to a mortal threat? Are we still capable of self-government?

This is the third major crisis of the short 21st century. The first, on September 11, 2001, came when Americans were still living mentally in the previous century, and the memory of depression, world war, and cold war remained strong. On that day, people in the rural heartland did not see New York as an alien stew of immigrants and liberals that deserved its fate, but as a great American city that had taken a hit for the whole country. Firefighters from Indiana drove 800 miles to help the rescue effort at Ground Zero. Our civic reflex was to mourn and mobilize together.

Partisan politics and terrible policies, especially the Iraq War, erased the sense of national unity and fed a bitterness toward the political class that never really faded. The second crisis, in 2008, intensified it. At the top, the financial crash could almost be considered a success. Congress passed a bipartisan bailout bill that saved the financial system. Outgoing Bush-administration officials cooperated with incoming Obama administration officials. The experts at the Federal Reserve and the Treasury Department used monetary and fiscal policy to prevent a second Great Depression. Leading bankers were shamed but not prosecuted; most of them kept their fortunes and some their jobs. Before long they were back in business. A Wall Street trader told me that the financial crisis had been a “speed bump.”

All of the lasting pain was felt in the middle and at the bottom, by Americans who had taken on debt and lost their jobs, homes, and retirement savings. Many of them never recovered, and young people who came of age in the Great Recession are doomed to be poorer than their parents. Inequality—the fundamental, relentless force in American life since the late 1970s—grew worse.

This second crisis drove a profound wedge between Americans: between the upper and lower classes, Republicans and Democrats, metropolitan and rural people, the native-born and immigrants, ordinary Americans and their leaders. Social bonds had been under growing strain for several decades, and now they began to tear. The reforms of the Obama years, important as they were—in health care, financial regulation, green energy—had only palliative effects. The long recovery over the past decade enriched corporations and investors, lulled professionals, and left the working class further behind. The lasting effect of the slump was to increase polarization and to discredit authority, especially government’s.

Both parties were slow to grasp how much credibility they’d lost. The coming politics was populist. Its harbinger wasn’t Barack Obama but Sarah Palin, the absurdly unready vice-presidential candidate who scorned expertise and reveled in celebrity. She was Donald Trump’s John the Baptist.

David Frum: Americans are paying the price for Trump’s failures

Trump came to power as the repudiation of the Republican establishment. But the conservative political class and the new leader soon reached an understanding. Whatever their differences on issues like trade and immigration, they shared a basic goal: to strip-mine public assets for the benefit of private interests. Republican politicians and donors who wanted government to do as little as possible for the common good could live happily with a regime that barely knew how to govern at all, and they made themselves Trump’s footmen.

Like a wanton boy throwing matches in a parched field, Trump began to immolate what was left of national civic life. He never even pretended to be president of the whole country, but pitted us against one another along lines of race, sex, religion, citizenship, education, region, and—every day of his presidency—political party. His main tool of governance was to lie. A third of the country locked itself in a hall of mirrors that it believed to be reality; a third drove itself mad with the effort to hold on to the idea of knowable truth; and a third gave up even trying.

Trump acquired a federal government crippled by years of right-wing ideological assault, politicization by both parties, and steady defunding. He set about finishing off the job and destroying the professional civil service. He drove out some of the most talented and experienced career officials, left essential positions unfilled, and installed loyalists as commissars over the cowed survivors, with one purpose: to serve his own interests. His major legislative accomplishment, one of the largest tax cuts in history, sent hundreds of billions of dollars to corporations and the rich. The beneficiaries flocked to patronize his resorts and line his reelection pockets. If lying was his means for using power, corruption was his end.

Read: It pays to be rich during a pandemic

This was the American landscape that lay open to the virus: in prosperous cities, a class of globally connected desk workers dependent on a class of precarious and invisible service workers; in the countryside, decaying communities in revolt against the modern world; on social media, mutual hatred and endless vituperation among different camps; in the economy, even with full employment, a large and growing gap between triumphant capital and beleaguered labor; in Washington, an empty government led by a con man and his intellectually bankrupt party; around the country, a mood of cynical exhaustion, with no vision of a shared identity or future.

. . . .

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

Read the rest of Packer’s article at the link.

Very discouraging. But, it’s not too late, yet. We have a chance in November to throw out the Trump/GOP Kakistocracy and start rebuilding America with a vision of the common good, common sense, and human dignity! Be the best, rather than running a “race to the bottom.”

Let’s consign Trump and his toadies to the same “dustbin of history” as Pétain and his collaborators!

This November, vote like your life depends on it. Because it does!

PWS

04-21-20

This November, vote like your life depends on it! Because it does!

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