"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Roughly 1.6 million people are caught up in an ever-expanding backlog in United States immigration court, according to new data tracking cases through December 2021. Those with open immigration cases must now wait for a decision determining their legal status for an average of 58 months—nearly five years.
Though the immigration court backlog has been getting longer for more than a decade, a deluge of new cases added between October and December 2021 significantly worsened wait times, according to the Transactional Records Access Clearinghouse (TRAC), a research institution at Syracuse University that obtained the figures through Freedom of Information Act requests. The backlog increased by nearly 140,000 during that period, the fastest growth on record and the direct result of an uptick in arrests by agencies housed under the Department of Homeland Security (DHS): Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).
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Read Jasmine’s complete article at the link!
1.6 million is just the “trip of the iceberg.” Each of those human beings potentially has family, friends, co-workers, teachers, fellow students, relatives, employers, employees, neighbors, sponsors, fellow parishioners, students, investors, etc. tied up in the trauma of their wait and the often arbitrary and capricious results once they get a final hearing. Virtually every community in America has a stake in Garland’s tragically broken “court” system.
Just applying TRAC’s math from recent studies, even in a time of inculturated anti-immigrant, anti-asylum bias and bad, skewed interpretations at EOIR, more than half of those in backlog would earn the right to stay in America if they could get an individual hearting. But, in Garland’s broken and mis-prioritized system, “getting a merits hearing” is a “big if.” Many of those in the backlog are already doing “essential work” or have the job skills we need if their only be normalized. Garland’s failure is America’s trauma, and wasted human capital, and squandered Government resources.
A few other “lowlights:”
“Fewer than 1% of those new cases brought by ICE and CBP beginning in October 2021 involved alleged criminal activity.” So much for “new priorities.”
“A spokesperson for the Department of Justice’s Executive Office of Immigration Review (EOIR), which oversees the immigration court system, said courts have been relying on technology to continue operations, but blamed the on-going pandemic for the worsening backlog.” An absurdist “cop-out,” as those familiar with EOIR’s chronically bad technology and failure to adequately prepare and deal with COVID know. Poor and imperious communication with the public has also been a feature of EOIR (mis)management during the pandemic!
“One reason is an ever-increasing number of new immigration cases swamping the system, as both the Obama and Trump Administrations issued millions of deportation orders.” Truth is that despite DHS and EOIR attempts to shift blame to the victims, the backlog is largely self-created.
“But the problem cannot be solved by asking the existing immigration judges to work harder or faster, Long says.” Nor, with due respect to TRAC’s Susan Long, will it be solved by throwing more judges and resources into a biased, unfair, totally dysfunctional, anti-due-process, broken system. Fix the system first with common-sense progressive reforms, replace bad judges, hire new judges on a merit basis, with outside expert input, focusing on hiring judges with records of commitment to due process and fundamental fairness and established immigration/human rights expertise! Then, once fairness, expertise, quality, and efficiency have been established and institutionalized, decide whether the system should be expanded and, if so, how to do it. (Hint: Many experts believe that 500 completions annually is the most reasonable expectation for well-functioning, expert Immigration Judges complying with due process and “best practices.” That means the current system of approximately 560 IJ’s has a maximum capacity of 250,000 to 300,000 completions annually. DHS Enforcement must be required to work within those realistic limits in bringing new cases before the court.)
“While the dedicated docket was designed to address the backlog for recently-arrived families, it failed to take into account the staggering systemic failures at work, according to immigration lawyers, advocacy organizations and elected officials.” It was a “proven failure enforcement gimmick” as experts told Garland from the “git go.” A competent AG committed to due process, fundamental fairness, and the rule of law would have rejected this bad idea out of hand.
“There’s a long, long laundry list of things that have been tried in the past,” Long says. “It’s not going to be a quick fix.” I respectfully dissent! This isn’t rocket science! It’s a combination of cleaning out the deadwood, bringing in competence and progressive expertise in judging and administration, common sense, long overdue progressive reforms, creative thinking, appointing a BIA of expert appellate judges to issue sound legal precedents, require best practices, and hold judges, DOJ officials, and DHS personnel accountable for their often intentional undermining of justice in Immigration Court. As alluded to by Long, Garland had the incredible advantage of a laundry list of “enforcement and just pedal faster gimmicks” that are proven failures! Garland knew in advance what NOT to do and what NOT to try. He also had access to an impressive array of practical scholarship and that produced sound, straightforward recommendations on how to fix the system. He had a golden opportunity to shake up the system on “Day One,” “clean house,” and bring in the new progressive experts and dynamic leaders to fix the system. Yes, I recognize that as Long suggests, the system won’t be fixed “overnight.” But, had Garland acted promptly and timely, the system could already be showing dramatic improvements on all levels. You have to start the process of reform and improvement somewhere. Garland’s dilatory approach to EOIR has greatly increased the difficulty. But, fixing EOIR is still “low hanging fruit” for the Administration if they only had the backbone and vision to “blow up” the current failed and flailing EOIR and bring in and empower experts to start taking names, kicking tail, and implementing due process and best practices reforms.
Garland apparently has operated on the false premise that fixing “Immigration Courts” isn’t a priority and that advice and assistance of progressive experts can just be “blown off” in favor of the type of politically-driven, bogus-enforcement-oriented, bureaucratic nonsense that is endemic at DOJ and DHS. Not happening! And continued aggressive litigation by the NDPA is an essential element of stopping the injustice and holding Garland and his flunkies accountable. That litigation is not going to stop either unless, and until, one way or another, Garland is forced to take notice and make the obvious progressive reforms and improvements.
Garland’s management “style” and unwillingness to bring in the progressive experts necessary to radically reform EOIR has become a huge part of the problem, propelling an already broken system to new heights of dysfunction, disorder, and injustice! PHOTO: Wikipedia Commons
I’m no fan of Virginia’s new GOP neo-fascist Attorney General Jason Miyares. But, before the end of Inauguration Day, the heads were rolling, and his message was very clear: liberalism, environmental protection, racial justice, good government, and public health are out — far-right neo-fascism is in! Get with the program or get out! Republicans loved it, Dems hated it. But it happened!
By sharp contrast, Garland is still running EOIR with much of the same personnel and many of the same broken and bad policies of his predecessors, Trump, and Stephen Miller. That’s a good illustration of why “Democrats can’t govern” while Republicans constantly outflank them and dismantle the system in short order. What’s the future of a party that doesn’t recognize its own self-interest, the common good, and act and govern accordingly?
Garland’s methods for attracting, recruiting, hiring, and retaining Immigration Judges have not inspired confidence from the NDPA and other expert critics of his totally dysfunctional, wholly-owned and operated, exponentially backlogged, poorly performing Immigration “Courts.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.
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There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.
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Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.
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Read the complete report, with charts and graphs, at the above link.
It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.
This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.
Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.
Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.
And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?
It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!
Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.
Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!
🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
Yilun Cheng Immigration Reporter, Columbus Dispatch PHOTO: TwitterAttorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.
The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.
Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.
But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.
Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.
But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.
Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.
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Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.
“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”
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Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.
In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.
In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.
“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”
Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.
“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”
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Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.
“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”
There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.
“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”
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The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.
The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.
The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.
“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”
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Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.
ycheng@dispatch.com
@ChengYilun
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Read Yulin’s full article at the link.
First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.
Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!
So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?
The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.
Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!
Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.
Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.
Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.”But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!
Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.
Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!
The TRAC “national average” for asylum denials by IJs during this period was 67.6%.
So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”
As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.
All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.
Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.
Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!
Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.
The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.
While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.
He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)
Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!
Indeed, a full year the SF Chron’sTal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”
From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?
Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”
As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!
Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡
There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!
The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!
The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it
WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.
The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.
…
Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.
Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.
Welcome and long, long, long overdue news! But, is it too little, too late?
Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy.
Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from expertswho understand the full legal and human effects of Garland’s complacent and ineffectual leadership.
The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.
In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!
The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance.
Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.
Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it.
The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.
Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.
In other words, Garland has been a disaster for those committed to due process, racial justice,equal treatment under law,and a diverse, welcoming, stable American democracy.
Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!
Law360 (January 12, 2022, 2:09 PM EST) — A top U.S. Immigration and Customs Enforcement attorney appeared elated when a sitting Massachusetts judge was indicted in 2018 for helping an immigrant in the country illegally evade custody, asking in an email if it would be “the first of many” such arrests, according to records made public in court Tuesday.
The email by then-ICE Principal Legal Adviser Tracy Short was part of a series of documents filed by a civil liberties group and government watchdog suing the agency to obtain even more records relating to the obstruction of justice charges against Newton District Court Judge Shelley Joseph.
Short posed the rhetorical question as a Fox News article circulated in emails among agency staff on the day Judge Joseph was indicted. In a later email to agency executives, Short said, “This is a great day.”
“Indeed,” responded Matthew Albence, ICE director of enforcement removal operations, according to the court filings. ICE chief of staff Thomas Blank allegedly chimed in, “Blessed.”
Judge Joseph is accused of helping the immigrant evade federal custody by allowing him to leave out the back door of her courtroom while agents from ICE were waiting out front to arrest him.
The case has been criticized by retired judges, academics and Massachusetts defense lawyers as an overreach by the federal government. Judge Joseph has argued that she acted within the scope of her judicial authority and therefore cannot be criminally charged. The issue is on appeal at the First Circuit.
The American Civil Liberties Union of Massachusetts and American Oversight, a government watchdog, attached the emails ICE produced to a motion for a pretrial win in the lawsuit they filed against the agency for records relating to the charges against Judge Joseph and her court officer Wesley MacGregor.
The civil liberties groups told U.S. District Judge Angel Kelley that the 83 pages of communications handed over by ICE in response to its records request “calls into serious question the adequacy of its search” for documents.
Among the groups’ concerns are that no records were produced for the 11 months that followed the incident, no text messages were searched, the search terms used were too narrow, and the agency never searched its Homeland Security Investigations Division even though the unit wrote a memo about the incident.
The groups asked the court to grant them summary judgment, order ICE to conduct a reasonable search — including emails and text messages — and release pages ICE is withholding under claimed exemptions from the public records law.
In December, ICE asked for a win in the case, saying it handed over what it needed to and withheld other sought-after documents that would harm pending criminal proceedings if released.
Judge Joseph and MacGregor have appealed a federal judge’s decision to not toss the charges on judicial immunity grounds. The First Circuit, in early December, heard the appeal and wrestled with how to define the judge’s immunity claim.
The ACLU’s records request was spurred by a November 2019 New York Times article that reported then-acting ICE Director Thomas Homan had been communicating with the Massachusetts U.S. Attorney’s Office in seeking legal recourse against Judge Joseph.
The ACLU requested records from March 15, 2018, through April 25, 2019, including emailed messages and letters between the U.S. attorney’s office and ICE about Judge Joseph, as well as records concerning an ICE investigation into the judge.
ICE told the ACLU in 2019 that it couldn’t do the search because the ACLU was a third party in the criminal case against Judge Joseph and needed her approval to access the records.
The ACLU protested and asked the agency to reconsider, saying that its request didn’t need Judge Joseph’s approval. In February 2020, the ICE Office of the Principal Legal Advisor ruled that a records search could be made, but ICE has failed to respond to the ACLU’s request since then, the complaint says.
Daniel McFadden, an ACLU staff attorney on the case, said in a statement to Law360 that ICE’s decision to charge Judge Joseph was “unprecedented.”
“The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement,” McFadden said.
ICE and the Department of Justice declined to comment on the filing when reached Wednesday.
The ACLU of Massachusetts is represented in-house by Krista Oehlke, Daniel L. McFadden and Matthew R. Segal.
American Oversight is represented in-house by Katherine M. Anthony.
Update: This article has been updated to include comments from the ACLU.
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Look, whether Short can be fired or not, he has no business being the Chief Immigration Judge at EOIR. Short never held a judicial position before his inappropriate appointment under Trump.
His career as a hard line, widely disrespected ICE Prosecutor took him through probably the worst Federal Court in America — the Atlanta immigration Court, a self-styled “Asylum Free Zone” where “due process and fundamental fairness go to die and be buried.”
No Senior Executive like Short has “life tenure” in a particular senior position. For example, former Chief Immigration Judge, current BIA Appellate Judge Michael J, Creppy, woke up one morning in 2006 to find himself“out at OCIJ” and on his way to OCAHO, widely considered the “Siberia of EOIR.” His “offense:” “losing the confidence” of the then powers that were at DOJ and EOIR during the Bush II Administration!
I had a similar experience when I was “pushed out” as BIA Chair and then Appellate Judge because Ashcroft and his team of hard liners (including the notorious neo-fascist nativist Kris Kobach) didn’t like my decisions standing up for the legal rights of migrants!
Once in power, the GOP makes good on its threats against asylum seekers and other migrants, without necessarily passing any legislation. By contrast, with weak-kneed, tone-deaf “leaders” like Mayorkas and Garland, Dems fail to keep their campaign promises and won’t even move the worst of the GOP holdovers out of key positions where they undermine justice and ruin human lives.
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
IMMIGRANT LEGAL DEFENSE
FOR IMMEDIATE RELEASE January 10, 2022
Contacts:
Immigrant Legal Defense
Ilyce Shugall, ilyce@ild.org, (415) 758-3765
Siobhan Waldron, siobhan@ild.org, (510) 479-0972
Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980
Omar Ameen Files Federal Lawsuit Seeking His Release
After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism
San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.
After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.
Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.
“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”
“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.
“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”
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Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.
The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.
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Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.
To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).
“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”
One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.
It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.
In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.
He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.
But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.
It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”
Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.
Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️
Hon. Dana Leigh Marks U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.”
😎🇺🇸🗽⚖️👩⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”Movement For Judicial Independence, Saved Thousands of Lives Over Career OnBench Spanning More Than Three Decades!
By Paul Wickham Schmidt
Courtside Exclusive
Jan. 9, 2022
Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.
In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.
Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.”
Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.
Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987).
There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”
Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades.
Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court.
During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table.
Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords.
The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”
In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.
Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!
Melody Busey ESQUIRE Associate Attorney Devine & Beard Law Office Charleston, SC PHOTO: Devineandbeard.comIt should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard Principal Partners Devine & Beard Law Office Charleston, SC PHOTO: Devineandbeard.com
Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published
PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.
OPINION: Judge Motz
CONCURRING OPINION; Judge Rushing
KEY QUOTE:
In sum, we hold that the BIA and IJ abused their discretion in denying Garcia
Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.
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Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!
Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels!
Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.
That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in theBiden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!
When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work.
Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPAattorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration!
The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!
While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.
Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!
Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.” Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?
Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).
By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why?
Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?
More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized?
And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!
In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!
That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!
Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.
The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms!
Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions!
So, what’s the “dollar value” of brown-skinned human lives to Biden, Harris, & Garland? We’re about to find out! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.
President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”
Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.
The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.
The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.
Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.
Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.
By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.
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Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!
“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.
The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!
If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand upfor the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!
For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”
As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)
It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.
WASHINGTON — What if you attempted a coup but people were unwilling to wrap their heads around what you had done?
A year after Jan. 6, 2021, that is the peculiar situation in which Donald Trump finds himself. Instead of being carted off in handcuffs for inciting an insurrection against the United States, or even just being banished from federal office for life by the Senate, the former president instead remains the leader of one of the two major political parties and is openly considering another run for the White House in 2024.
The government is finally taking the threat of far-right militia groups seriously. But the larger threat are the Republican legislators who continue to recklessly undermine democracy
One year ago, he was frantically barricading the doors to the House gallery to keep out the violent mob. Today, he calls the insurrection a “bold-faced lie” and likens the event to “a normal tourist visit”. The story of Andrew Clyde, who represents part of my – heavily gerrymandered – liberal college town in the House of Representatives, is the story of the Republican party in 2021. It shows a party that had the opportunity to break with the anti-democratic course under Donald Trump, but was too weak in ideology and leadership to do so, thereby presenting a fundamental threat to US democracy in 2022 and beyond.
The risk of a coup in the next US election is greater now than it ever was under Trump | Laurence H Tribe
Clyde is illustrative of another ongoing development, the slow but steady takeover of the Republican party by new, and often relatively young, Trump supporters. In 2015, when his massive gun store on the outskirts of town was still flying the old flag of Georgia, which includes the Confederate flag, he was a lone, open supporter of then-presidential candidate Trump, with several large pro-Trump and anti-“fake news” signs adorning his gun store. Five years later, Clyde was elected to the House of Representatives as part of a wave of Trump-supporting novices, mostly replacing Republicans who had supported President Trump more strategically than ideologically.
With his 180-degree turn about the 6 January insurrection, Clyde is back in line with the majority of the Republican base, as a recent UMass poll shows. After initial shock, and broad condemnation, Republicans have embraced the people who stormed the Capitol last year, primarily referring to the event as a “protest” (80%) and to the insurrectionists as “protesters” (62%), while blaming the Democratic party (30%), the Capitol police (23%), and the inevitable antifa (20%) for what happened. Unsurprisingly, the vast majority of Republicans (75%) believe the country should “move on” from 6 January, rather than learn from it. And although most don’t care either way, one-third of Republicans say they are more likely to vote for a candidate who refuses to denounce the insurrection.
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The increased anti-democratic threat of the Republican party can also be seen in the tidal wave of voting restrictions proposed and passed in 2021. The Brennan Center for Justice counted a stunning 440 bills “with provisions that restrict voting access” introduced across all but one of the 50 US states, the highest number since the Center started tracking them 10 years ago. A total of 34 such laws were passed in 19 different states last year, and 88 bills in nine states are being carried over to the 2022 legislative term. Worryingly, Trump-backed Republicans who claim the 2020 election was stolen are running for secretary of state in various places where Trump unsuccessfully challenged the results.
. . . .
At the same time, the Republican party has become increasingly united and naked in its extremism, which denies both the anti-democratic character of the 6 January attack and the legitimacy of Biden’s presidency, and is passing an unprecedented number of voter restriction bills in preparation for the 2022 midterms and 2024 presidential elections. As long as the White House mainly focuses on fighting “domestic violent extremism”, and largely ignores or minimizes the much more lethal threat to US democracy posed by non-violent extremists, the US will continue to move closer and closer to an authoritarian future.
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You can read both articles in full at the above links.
If you are counting on AG Merrick Garland to “lead the charge” on establishing accountability, your optimism might be tempered by his own failure to “clean house” at DOJ and in particular by his failure to reform his wholly-owned Immigration Court system that was front and center in assisting and carrying out the Trump/Miller White Nationalist assault on the rule of law, primarily targeting individuals of color and the “world’s most vulnerable” seeking justice in our system.
A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.
Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.
“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.
Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.
“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.
At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.
Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.
In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.
But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.
A growing backlog
Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.
“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”
Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.
The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.
“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.
This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.
Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.
Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.
“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.
Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.
History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.
“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”
. . . .
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“What if Garland had to hang out with us in his backlogs?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Read Deepa’s full article at the link.
Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!
The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.
But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.
Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.
As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.
Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”
Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!
Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.
I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!
Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”
Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!
Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!
Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.
Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.
Better choices for the now-broken and regressive Immigration Judiciary are out there? Why hasn’t Garland tapped them? Kit Johnson Associate Professor of Law University of Oklahoma Law School
Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.
Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.
”This is Stephen Miller’s perverted ‘vision of justice in Immigration Court!’ Why hasn’t Garland moved beyond it by bringing in the ‘best and brightest’ to reform his dysfunctional EOIR system?” “Justice” Star Chamber Style
Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.
It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!
🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”
Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?
Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”
Predictably, nobody is pleased.
The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too.
Nolan Rappaport for the Hill reports that Paul Schmidt, former chair of the Board of Immigration Appeals who now blogs at Immigration Courtside, does not think that President Biden has done enough on immigration. Schmidt claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”
Thanks, guys! As I have told both of you, I really appreciate the huge contributions you have made to informing the public about this all-important, yet often misunderstood or “mythologized,” issue!
Following up on my last thought, I urge everyone to view this recent clip from “Face the Nation,” posted by Kevin on ImmigrationProf, in which reporter Ed O’Keefe succinctly and cogently explains how immigration is the “most underreported issue of 2021.” It’s fundamental to everything from COVID, to the economy, to voting rights, to racial justice, to climate change, to our position in the world.
And, I say that the absolute dysfunctional mess that Garland has presided over in hisbroken and jaw-droppingly backlogged Immigration Courts is the most widely ignored, misunderstood, mishandled, and under-appreciated part of this under-reporting!
As an example of how even “mainstream liberal progressive pundits” get it wrong by not focusing on the spectacular adverse effects of Garland’s botched handling of the Immigration Courts, check out this article by Mark Joseph Stern over at Slate. https://apple.news/AvmEJc5V0RXa8hCgKICcTOA
Overlooking Garland’s disastrous mis-handling of his “wholly owned” U.S. Immigration Courts and the unparalleled “missed opportunity” to put more brilliant progressive judges on the Federal Bench is an all too common “blind spot” for progressive pundits. Mark Joseph Stern Reporter, Slate
Stern does a “victory lap” over Biden’s 40 great Article III judicial appointments to the lower Federal Courts, closing with the astounding claim that: “Democrats are finally playing hardball with the courts.”
In truth, Dems are only belatedly starting to do what the GOP has been doing over four decades: Get your guys in the positions where they make a difference for better (Dems, in theory) or worse (GOP in practice).
Appointing a diverse, talented, progressive group of 40 out of 870 Article III Judges is an important, necessary, and long, long overdue start; but, it’s not going to make a cosmic difference overnight!
By contrast, there are about 550 Immigration Judges, the majority appointed by GOP restrictionist AGs, many with mediocre to totally inadequate credentials for the job. And, it shows in the consistently substandard performance and mistake-riddled, haphazard “jurisprudence” emanating from Garland’s EOIR.
The main qualifications for a number of these pedestrian to totally outrageous appointments appears to be willingness to carry out former GOP AGs’ restrictionist, nativist policies, or at least to adhere to the DOJ’s enforcement-oriented agenda, while ignoring, distinguishing, or downplaying the due process rights of migrants!
This is “complimented” by an appellate branch (the BIA) with about two dozen judges hand-selected or retained for notorious anti-immigrant records or willingness to “go along to get along” with the wishes of DHS Enforcement. The BIA turns out some truly horrible, almost invariably regressive, “precedents.” A number are so lacking in substance and coherent analysis that they are unceremoniously “stomped” by the Article IIIs despite limitations on judicial review and the travesty of so-called “Chevron deference” that serves as a grotesque example of Supremes-created “judicial task avoidance” by the Article IIIs.
From an informed Dem progressive perspective, it’s an infuriating, ongoing, unmitigated disaster! Only one BIA appellate judge, recently appointed “progressive practical scholar” Judge Andrea Saenz, would appear on any expert’s list of the “best and brightest” progressive legal minds in the field.
Unlike Article III Judges, who are life-tenured, EOIR Judges serve at the pleasure and discretion of the Attorney General and can be replaced and reassigned, including to non-quasi-judicial attorney positions, “at will.”
Starting with Attorney General John Ashcroft’s notorious “BIA Purge of ‘03,”GOP AGs haven’t hesitated to remove, transfer, “force out,” marginalize, demoralize, discourage from applying, or simply not select EOIR judges who stood for due process and immigrants’ rights in the face of nativist/restrictionist political agendas.
Yet, for eight years of the Obama Administration and now a year into the Biden Administration, Dem AGs have lacked the guts, awareness, and vision to fight back by “de-weaponizing” the regressive GOP-constructed Immigration Judiciary and recruiting replacements from among the “best and the brightest” among the “deep pool” of expert, intellectually fearless “progressive practical scholars.”
Not only that, but Dems have totally blown a unique opportunity to remake and establish the Immigration Judiciary not only as “America’s best judiciary” — a model for better Article IIIs — but also as a training ground for the diverse progressive judiciary of the future!
Even more significantly, tens of thousands of lives that should have been saved by an expert, due-process-oriented, racially sensitive judiciary have been, and continue to be, sacrificed on the alter of GOP nativism and Dem indifference to quality judging and human suffering in the Immigration Courts!
Compare the diverse, progressive backgrounds and qualifications of “Stern’s 40” with those on the totally underwhelming list of the most recent Garland “giveaways” of precious, life-determining Immigration Judge positions! See, e.g., https://www.justice.gov/eoir/page/file/1457171/download
The progressive talent is definitely out there to change the trajectory of the Immigration Courts for the better! Garland’s failure to inspire, recruit, appoint, and tout the “best and brightest” in American law for his Immigration Courts is a horrible “whiff” with disturbing national and international implications!
Article III Federal Courts deal with the mundane as well as the profound. By contrast, lives and futures are on the line in every single Immigration Court case! Often effective judicial review of EOIR’s haphazard, widely inconsistent, unprincipled, and one-sided decisions is unavailable, either as a legal or practical matter. The exceptionally poor performance of the Immigration Courts that continues under Garland threatens the underpinnings of our entire justice system and American democracy!
Right now, Garland’s broken system has a largely self-created 1.5+ million case ever-expanding backlog! At a very conservative estimate of four family members, co-workers, employees, employers, students, co-religionists, neighbors, and community members whose lives are intertwined with each of those stuck in Garland’s hopelessly broken, biased, and deficient system, at least 6 million American lives hang in the balance — twisting in the wind among Garland’s “backlog on steroids!” Yet, amazingly, it’s “below the radar screen” of Stern and other leading progressive voices!
I doubt that any Federal Court in America, with the possible exception of the Supremes, holds as many human lives and futures in its hands. Not to mention that “dehumanization” and “Dred Scottification” of the other in Immigration Court drifts over into the Article III Courts on a regular basis. Once you start viewing one group of humans as “less than persons” under the Constitution, it’s easy to add others to the “de-personification” process.
Yet, Garland cavalierly treats the Immigration Courts as just another mundane piece of his reeling bureaucratic mess at the DOJ. The long overdue and completely justified “housecleaning” at Trump’s anti-democracy insurrectionist regime seems far from Garland’s serenely detached mind!
For Pete’s sake, even ICE Special Agents understand the need to “rebrand” themselves by escaping the inept and disreputable ICE bureaucracy left over from Trump:
They say their affiliation with ICE’s immigration enforcement role is endangering their personal safety, stifling their partnerships with other agencies and scaring away crime victims, according to a copy of the report provided to The Washington Post.
But, Garland doesn’t understand the well-deserved toxic reputation of EOIR among legal experts? Gimme a break!
Garland also stands accountable for his spineless failure to insist on a dismantling of the bogus, illegal, immoral, and ultimately ineffectual Title 42 abomination at the Southern Border and an immediate return to the rule of law for asylum seekers.
Unless and until the Dems get serious about gutsy, radical progressive reforms of the Immigration Courts, the downward spiral of American justice will continue! Lives will be lost, and many of those who helped put Dems in power will be pissed off and “de-motivated” going into the midterms. That’s a really bad plan for Dems and for America’s future!
As Dems’ hopes of achieving meaningful Article III judicial reforms predictably are stymied, their inexcusable failure to reform and improve the Immigraton Courts that belong to them becomes a gargantuan, totally unnecessary “missed opportunity!” Talk about “unforced error!” See, e.g., https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/
If Dems suffer an “enthusiasm gap” among their key progressive base going into the key 2022 midterms, they need look no further than Garland’s tone-deaf and inept failure to bring long overdue and readily achievable progressive personnel, procedural, management, and substantive reforms to his dysfunctional Immigration Courts. That — not a false sense of achievement — should have been the “headliner” for Stern and other progressive voices!
“Expedience over excellence, enforcement over equity, gimmicks over innovation is good enough for Government work!” — The “vision” for Garland’s EOIR! But, progressive experts aren’t buying his “tunnel vision.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The CAP [Center for American Progress] can also be a critical friend. “During the spike in Haitian asylum seekers at the Texas border, when the world saw those reprehensible images of how those asylum seekers were being treated, I didn’t hesitate as the president of CAP to speak out against the policies and to personally go to the border to bear witness to what was occurring and to call for and demand different practises in how we adjudicate those matters.”
There has been “tremendous progress” at the border since then, he says. But Biden’s approval rating remains stubbornly low and there is a sense of gloom in the air. As the president nears his first anniversary in office, what is Gaspard’s verdict so far? “My god, can we step back for a second and have some perspective?
“If someone had told me or anyone on January 5th that 11 months later Joe Biden would have managed to pass a bipartisan infrastructure bill, successfully advanced a historic stimulus bill that’s led to the fastest 11 month job growth in America that we’ve ever had … and was also on the precipice of passing a piece of legislation that will expand access to Medicare benefits, lift up low wage workers who are the frontlines of the care economy, make the most progress on investments in climate change in two generations, I would have taken all of that if you’d offered it to me.”
In his inaugural address, Biden vowed to address the interlocking crises of climate, coronavirus, economy and racial justice. On the last of these, police reform and voting rights have stalled in Congress, raising fears that last year’s Black Lives Matter protests after the police murder of George Floyd could prove a moment, not a movement, after all.
Gaspard, however, believes the momentum is sustainable. “Of course there was the white knuckle moment of George Floyd and the explosion of pent-up advocacy and rage but now there’s a lot of good, thoughtful work. You’re going to have your setbacks but there’s also been extraordinary progress in a number of states – Missouri, Ohio, California – where you can quantify what’s changed. That will continue. Civil rights just does not move in a linear way.”
Less than a year after the 6 January insurrection at the US Capitol, however, the existential threats to democracy itself persist in a deeply divided nation. Gaspard describes himself as “radically optimistic” but not “Pollyannish” about the gathering storm.
“This is a thing I hesitate to say out loud but I really do believe that we should have the understanding that in 2024, when we are conducting elections across the country, there is the potential for us to experience January 6 on steroids, for us to see it in state after state in state capitols.”
“There’s the potential for that kind of civil disruption if we are not on our side intentional about pushing back now and about making as persuasive an argument for democracy as we can and an argument that’s manifest in actual legislation and executive orders.”
Reagan famously referred to America as a “shining city on a hill”; Biden has said the country can be defined in one word: “possibilities”. It was such promises that enticed Gaspard’s parents here half a century ago. But the turmoil of recent years has tarnished its image. Does he think his mother and father would have made the same choice today?
“We have seen that America, as an aspirational brand, has taken a hit the last several years. There’s a direct relationship between that and the previous president of the United States and how he postured on the world stage and projected us as a closed, hyper sovereign space that did not cooperate in a multilateral way and that led with military might and ‘America first’ as opposed to partnership and cooperation.
“There is a fear that I hear among immigrants that are in our community: they worry that the face of America has changed. When they see things like ‘the great replacement’ conspiracy that’s driving all kinds of not just rhetoric but actual policy on the ground for conservatives, they worry about what kind of violence it can visit on their children. All that anxiety is real.”
But again he sees the glass as half full. “I can tell you I’m pretty confident that if my parents were faced with that choice today that America is still the place they would see as this shining beacon of hope and opportunity, irrespective of its challenges which are real and more nakedly exposed than they have been in some time.
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Read the full interview at the link.
Gaspard needs to pick up the phone, call his fellow “child of immigrants” in the White House, and remind her that “die in place” and “rot in Mexico” aren’t “progressive human rights and racial policies!”
He also might challenge her to rethink the Administration’s regressive decision to allow AG Merrick “What Me Worry” Garland to run the nation’s largest, and probably second most important, nationwide Federal “court” system with a non-diverse group of many questionably qualified non-life-tenured “holdover” judges and a “de facto Supreme Court of human rights and racial justice” with horribly performing appellate judges appointed or retained by Sessions and Barr because of their “Miller-think” anti-immigrant philosophies and mis-interpretations of the law.
Is “What Me Worry?” REALLY the “progressive vision” for America’s now beyond dysfunctional Immigration “Courts?” If not, then why aren’t Gaspard and other influential progressive leaders raising hell about Garland’s indolent and ineffective administration of EOIR? Why are the many potentially available dynamic progressive leaders and experts on immigration, human rights, and racial justice — folks with practical ideals that could actually fix this mess and solve problems in “real time”– now “on the outside looking in” while Trump holdovers, enablers, and bureaucratic retreads run roughshod over immigrants’ rights and bumble along with pathetic administration at EOIR? Why are some of the best progressive legal minds in America writing blogs, op-eds, and articles rather than fairly and efficiently administering justice as judges on the “immigration bench?” PHOTO: Wikipedia Commons
Patrick commendably went to the border to “bear witness” to the miserable Administration policies directed at Haitians and other asylum seekers of color. Now, I think he should show up in Immigration “Court” and “bear witness” to the systemic denial of due process, fundamental fairness, racial justice, and human dignity (not to mention mediocre judging) being inflicted on immigrants and their lawyers (if they are fortunate enough to even have one) on a daily basis! 🏴☠️ Then, call up President Biden and urge him to live up to his campaign promises!
There are many areas of damage to the American system, particularly the Article III Federal Courts, that are beyond the power of the President to immediately change. But, the Immigration Courts, under the total control of the Executive, are one where immediate progressive change is not only possible, it’s long overdue. If you can’t “put your own house in order” what’s the chance of achieving other portions of the vision for a better, fairer, and more just America?
Under Trump and McConnell, The Federalist Society and the Heritage Foundation “owned” the Article III appointment process, while far-right nativist groups FAIR and Center for Immigration Studies (“CIS”) did likewise for the immigration bureaucracy and the Immigration Courts.
So, why is it that CAP and other progressive groups haven’t been able to achieve progressive reforms and better-quality judicial appointments in the Immigration Courts and the BIA? Progressives appear to have once again been outflanked, out-maneuvered, out-visioned, and out-strategized by far-right xenophobic restrictionist and nativist interest groups!
Curiously and infuriatingly to “working level progressives,” leading “Great Replacement Theory” conspirator and shameless advocate for race-based restrictionism “Gauleiter” Stephen Miller, out of power for nearly a year, still has more influence at Garland’s dysfunctional EOIR and Mayorkas’s DHS than Gaspard and other progressive leaders who helped elect Biden. The real question is “why?” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
To be perfectly honest, the current Administration policies on refugees, asylees, and human rights in Immigration Court and at the border (the two are intertwined) more closely resemble those of “Gauleiter” Stephen Miller than they do of Patrick Gaspard and other supposedly influential progressives and humanitarians! I predict that future historians will find Garland’s mis-handling of EOIR to be one of the greatest, if not the greatest, “blown opportunities” in American progressivism!
At some point, being progressive and standing up for a racially just America that welcomes immigrants means more than just “talking progressive” or “remaining optimistic” in the face of lies and evil. It means taking action to combat the forces and enablers of anti-democratic, biased, authoritarianism and hate in America!
The “Gauleiter”s” policies of “transportation” of legal asylum seekers to danger zones or death has, to a totally unacceptable extent, been adopted by the Biden Administration. America’s cowardly, immoral, illegal, and unethical treatment of these vulnerable individuals will haunt our nation for generations to come! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Asylum grant rates have often been the focus of public attention and discussion. An implicit assumption is often made that if the immigrants’ asylum applications are denied that they have been unsuccessful in their quest to legally remain in the U.S. However, this may not always be the case. In addition to asylum, there are often other avenues for relief, and other types of decisions where the Immigration Court can determine that an individual should be allowed to legally remain in the U.S. This report breaks new ground in empirically documenting just how often asylum seekers’ quests to legally remain in the U.S. have been successful.
According to case-by-case records of the Immigration Courts, Immigration Judges completed close to one million cases (967,552) on which asylum applications had been filed during the last 21 years (October 2000 – September 2021). Of these, judges granted asylum to 249,413 or one-quarter (26%) of these cases.
However, only about half of asylum seekers were ordered deported. More specifically, just 42 percent received removal orders or their equivalent,[4] and an additional 8 percent received so-called voluntary departure orders. These orders require the asylum seekers to leave the country, but unlike removal orders voluntary departure orders do not penalize individuals further by legally barring them for a period of years from reentry should their circumstances change.
The remaining one-quarter (24%) of asylum seekers were granted other forms or relief or Immigration Judges closed their cases using other grounds which allowed asylum seekers to legally remain in the country.[5] When this proportion is added to asylum grant rates, half of asylum seekers in Immigration Court cases — about twice the individuals granted asylum — have been successful in their quest to legally remain in the United States at least for a period of time. See Figure 5.
Figure 5. Outcome of U.S. Asylum Applications, October 2000 – September 2021
Focusing on just Immigration Court asylum cases, however, does not take into consideration asylum seekers who have asylum granted by Asylum Officers from the United States Citizenship and Immigration Services (USCIS). Those cases end there with the asylum grant. Only unsuccessful cases are forwarded to the Immigration Court for review afresh, and thus included in the Immigration Court’s records. These referrals of asylum denials by USCIS Asylum Officers are classified in the Court’s records as affirmative asylum cases,[6] to distinguish them from those that start with DHS seeking a removal order from the Immigration Court and the asylum claim being raised as a defense against removal.
Thus, a more complete picture of asylum seekers to the U.S. would add in the asylum grants by USCIS on these affirmative cases. Over the period since October 2000, the total number of asylum grants totals just under 600,000 cases – more than double the asylum grants by Immigration Judges alone.[7] Asylum Officers granted asylum in just over 350,000 cases, while Immigration Judges granted asylum in an additional close to 250,000 cases. See Tables 5a and 5b.
Asylum grants thus make up almost half (46%) of the outcomes on the total number of 1.3 million cases closed in which asylum applications were filed. An additional one in five (18%) were granted some other form of relief or otherwise allowed to legally remain in the U.S. Thus, almost two-thirds (64%) of asylum seekers in the 1.3 million cases which were resolved have been successful over the past two decades.
Figure 5 above presents a side-by-side comparison of asylum case outcomes when examining Immigration Court completions alone, and how outcome percentages shift once Asylum Officers’ asylum grants are combined with decisions made by Immigration Judges.
. . . .
Outcome on Asylum Cases
Number
Percent**
IJ Outcome on Asylum Cases
Asylum Granted by IJ
249,413
26%
Other Relief, etc.
236,889
24%
Removal Order
403,252
42%
Voluntary Departure Order
77,998
8%
Total IJ Asylum Completions
967,552
100%
USCIS + IJ Outcome on Asylum Cases
Asylum Granted by USCIS+IJ
599,772
46%
Other Relief, etc by IJ
236,889
18%
Removal Order by IJ
403,252
31%
Voluntary Departure Order by IJ
77,998
6%
USCIS + IJ Asylum Completions
1,317,911
100%
. . . .
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Read the complete TRAC report, containing all the graphs and charts that I could not adequately reproduce, at the link.
Applying the 50% “granted protection of some type” rate in Immigration Court to the ever expanding backlog of 667,000 asylum cases in Garland’s dysfunctional EOIR, that means that there are at least 333,000 asylum seekers who should be “out of Garland’s backlog” and legally living, working, and/or studying in the U.S., probably over 165,000 of whom should be on the way to green cards, citizenship, or already citizens in a functional system!
And, the TRAC-documented success rate has been achieved in a system that has been designed with bias to deter and discourage asylum seekers with mediocre, or even hostile, judges, a BIA that lacks asylum expertise and turns out incorrect restrictionist precedents, and administrative leadership that specializes in ineptitude, toadyism, and mindless “aimless docket reshuffling.”
Better problem-solving-focused judicial leadership at EOIR could come up with innovative ways of screening and getting the many aged, grantable cases of asylum seekers and other migrants (cancellation of removal, SIJS, and “stateside processing” come to mind) out of the Immigration Court backlog and into an alternative setting where relief could granted more efficiently. For the most part, there is no useful purpose to be served by keeping cases more than three years old on the Immigration Court docket.
The Immigration Courts must work largely in “real time” with real judges who can produce consistent, fair results on a predictable timetable. Big parts of that are increasing competent representation, providing better legal guidance on recognizing and promptly granting meritorious cases (that, significantly, would also guide the USCIS Asylum Office), and standing up to efforts by DHS Enforcement to overwhelm judicial resources and use Immigration Courts to “warehouse and babysit” the results of their own mismanagement and misdirection of resources.
There’s no chance that Garland (based on inept and disinterested performance to date, and his near total lack of awareness and urgency) and the crew, largely of Sessions/Barr holdovers, currently comprising his EOIR can pull it off. That’s a monumental problem for migrants and American justice generally!
Without an AG with the guts, determination, expertise, and vision to “clean house” at EOIR and DOJ, or alternatively, a Congress that takes this mess out of the DOJ and creates a real Article I Immigration Court system, backlogs, fundamental unfairness, and incompetence at EOIR will continue to drag down the American legal system.
Worthy of note: The TRAC stats confirm the generally held belief that those asylum seekers held in detention (the “New American Gulag” or “NAG”) are very significantly less likely to be granted relief than those appearing in a non-detained setting. But, what would be helpful, perhaps a task for “practical scholars” somewhere, would be to know “why.”
Is it because the cases simply are not a strong, because of criminal backgrounds or otherwise? Or, is it because of the chronic lack of representation, intentional coercion, and generally less sympathetic judges often present in detention settings? Or, as is likely, is it some combination of all these factors?
Also worthy of note: Three major non-detained courts, with approximately 31,000 pending asylum cases, had success rates significantly below (20% or more) the national average of 50%:
Houston (19%)
Atlanta (29%)
Harlingen (24%)
On the “flip side,” I was somewhat pleasantly surprised to see that the oft-criticized El Paso Immigration Court (non-detained) had a very respectable 48% success rate — a mere 2% off the national average! Interesting!
Also worthy of watching: Although based on a tiny, non-statistically-valid sampling (2% of filed asylum cases), Houston-Greenspoint had a 53% grant rate, compared with “Houston non-detained’s” measly 19%. If this trend continues — and it well might not, given the very small sample — it would certainly be worthy knowing the reasons for this great disparity.
In addition to “giving lie” to the bogus claims, advanced mostly by GOP nativists, but also by some Dems and officials in Dem Administrations, that most asylum seekers don’t have valid claims to remain, the exact opposite appears to be true! Keeping asylum seekers from getting fair and timely dispositions of their cases hurts them at least as much, probably more, than any legitimate Government interest.
Moreover, it strongly suggests that hundreds of thousands of legitimate asylum seekers with bona fide claims for protection have been illegally and immorally returned to danger or death without any semblance of due process under a combination of a bogus Title 42 rationale and an equally bogus “Remain in Mexico” travesty. It should also prompt some meaningful evaluation of the intellectual and moral failings of Administrations or both parties, poorly-qualified Article III judges, and legislators who have encouraged, enforced, or enabled these “crimes against humanity” — and the most vulnerable in humanity to boot!
