🏴‍☠️☠️⚰️👎🏻KAKISTOCRACY GONE WILD: Billy The Bigot Adds 46 More To America’s Star Chambers — Long on Government Backgrounds, Particularly Prosecutorial — Short on Immigration Expertise or Reputations For Fairness &  Scholarship — CONSPICUOUSLY ABSENT: Asylum, Human Rights Expertise & Experience Representing Humans Seeking Justice!

Here’s the list with bios:

https://www.justice.gov/eoir/page/file/1295301/download

This list includes what appears to be a municipal traffic court judge and someone who spent the last four years working for a white nationalist hate group (per the SPLC). 

https://www.youtube.com/watch?v=mesbqxTSzEM

Due Process Forever! America’s Star Chambers, Never!☠️⚰️🤮

PWS

07-19-20

THE DOJ’S NEW TITLE UNDER BILLY BARR: “HOOKERS FOR TRUMP” – “Why Bill Barr’s DOJ replaced Catholic Charities with Hookers for Jesus” – Why “There has never been a better time to be a Hooker for Jesus.”

Dana Milbank
Dana Milbank
Opinion Columnist
Washington Post

https://www.washingtonpost.com/opinions/2020/02/11/why-bill-barrs-doj-replaced-catholic-charities-with-hookers-jesus/

 

Dana Milbank writes in WashPost:

There has never been a better time to be a Hooker for Jesus.

Under Attorney General Bill Barr’s management, it appears no corner of the Justice Department can escape perversion — even the annual grants the Justice Department gives to nonprofits and local governments to help victims of human trafficking.

In a new grant award, senior Justice officials rejected the recommendations of career officials and decided to deny grants to highly rated Catholic Charities in Palm Beach, Fla., and Chicanos Por La Causa in Phoenix. Instead, Reuters reported, they gave more than $1 million combined to lower-rated groups called the Lincoln Tubman Foundation and Hookers for Jesus.

Why? Well, it turns out the head of the Catholic Charities affiliate had been active with Democrats and the Phoenix group had opposed President Trump’s immigration policies. By contrast, Hookers for Jesus is run by a Christian conservative and the Lincoln Tubman group was launched by a relative of a Trump delegate to the 2016 convention.

That Catholic Charities has been replaced by Hookers for Jesus says much about Barr’s Justice Department. Friends of Trump are rewarded. Opponents of Trump are punished. And the nation’s law enforcement apparatus becomes Trump’s personal plaything.

Federal prosecutors Monday recommended that Trump associate Roger Stone serve seven to nine years in prison for obstruction of justice, lying to Congress, witness tampering and other crimes.

Then Trump tweeted that the proposed sentence was “horrible and very unfair” and “the real crimes were on the other side.” And by midday Tuesday, Barr’s Justice Department announced that it would reduce Stone’s sentence recommendation. All four prosecutors, protesting the politicization, asked to withdraw from the case.

But politicization is now the norm. Last week, Barr assigned himself the sole authority to decide which presidential candidates — Democrats and Republicans — should be investigated by the FBI.

Also last week, the Department of Homeland Security, working with the Justice Department, announced that New York state residents can no longer enroll in certain Trusted Traveler programs such as Global Entry — apparent punishment for the strongly Democratic state’s policies on illegal immigrants.

On Monday, Barr declared that the Justice Department had created an “intake process” to receive Rudy Giuliani’s dirt from Ukraine on Joe Biden and Hunter Biden — dirt dug in a boondoggle that left two Giuliani associates under indictment and Trump impeached.

The same day, Barr’s agency announced lawsuits against California, New Jersey and King County (Seattle), Washington — politically “blue” jurisdictions all — as part of what he called a “significant escalation” against sanctuary cities.

On Tuesday, to get a better sense of the man who has turned the Justice Department into Trump’s toy, I watched Barr speak to the Major County Sheriffs of America, a friendly audience, at the Willard Hotel in Washington.

Even by Trumpian standards, the jowly Barr, in his large round glasses, pinstripe suit and Trump-red tie, was strikingly sycophantic. “In his State of the Union, President Trump delivered a message of genuine optimism filled with an unapologetic faith in God and in American greatness and in the common virtues of the American people: altruism, industriousness, self-reliance and generosity,” he read, deadpan.

Trump, he went on, “loves this country,” and “he especially loves you.” The boot-licking performance continued, about Trump’s wise leadership, his unbroken promises and even the just-impeached president’s passionate belief in the “rule of law.”

Then Barr turned to the enemy. He attacked “rogue DA’s” and “so-called social-justice reformers,” who are responsible for “historic levels of homicide and other violent crime” in Philadelphia, San Francisco, Seattle, St. Louis, Chicago and Baltimore. Politicians in sanctuary jurisdictions, he said, prefer “to help criminal aliens evade the law.” Barr vowed to fight these foes with “all lawful means” — federal subpoenas to force them to turn over “information about criminal aliens,” dozens of lawsuits to invalidate statutes and attempts to deny them both competitive and automatic grants.

In response to a question, Barr railed against tech companies’ use of encryption: “They’re designing these devices so you can be impervious to any government scrutiny,” he protested.

Maybe people wouldn’t be so sensitive about government scrutiny if the top law enforcement official weren’t using his position to punish political opponents and reward political allies.

Instead, with Barr’s acquiescence, we live in a moment in which: Trump’s Treasury Department immediately releases sensitive financial information about Hunter Biden, while refusing to release similar information about Trump; Trump ousts officials who testified in the impeachment inquiry and even ousts the blameless twin brother of one of the witnesses; and Trump’s FBI decides to monitor violent “people on either side” of the abortion debate — although the FBI couldn’t point to a single instance of violence by abortion-rights supporters.

This week, the Pentagon released a new color scheme for Air Force One, replacing the 60-year-old design with one that looks suspiciously like the old Trump Shuttle.Surprised? Don’t be. Soon the entire administration will be able to apply for a Justice Department grant as a newly formed nonprofit: Hookers for Trump.

 

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

Barr’s inspirational lesson for new lawyers: Once you achieve fame, fortune, and protection from corrupt politicos and complicit judges, it’s virtually impossible to get your law license revoked for unethical performance. As long as you thumb your nose at the law and ethical rules right in public, right in front of judges, you’re essentially immune. The “rules” only apply to those poor suckers at the bottom of the “legal totem pole.”

 

This is actually a fairly new development under the Trump regime. In the past, even high-profile lawyers who violated their ethical obligations got zapped: John Mitchell, Dick Kleindienst, Bill Clinton(technically, he might have “surrendered his law license” in lieu of disbarment), Webb Hubbell, etc.

 

But, during the Trump regime, Federal Judges seem content to just “roll their eyes” at lies, false narratives, thinly veiled racist or religiously bigoted rationales for policy, and simply astounding conflicts of interest (how about running a biased and unconstitutional Immigration “Court” right in plain view?) streaming out of an ethics-free zone at the “Department of Hookers for Trump.”

 

U.S. District Judge Amy Berman Jackson was actually a “target” of Roger Stone’s contemptuous and openly threatening behavior. It will be interesting to see how she deals with the sudden reversal and baseless plea for mercy from Barr for this unrepentant and totally unapologetic criminal.

 

As if to resolve any doubts as to his contempt for America and democratic institutions, the cowardly “Bully-in-Chief” unleashed an unprovoked twitter tirade against Judge Jackson and the career prosecutors in the case.  https://www.washingtonpost.com/nation/2020/02/12/trump-stone-judge/

 

Perhaps predictability, this was followed by an impotent call by Senate Democrats for the uber corrupt Billy Barr to resign and for the equally corrupt and spineless Sen. Lindsey Graham (R-SC) to stop slithering around the Capitol and schedule an “investigative hearing” into improper political influence at the “Department of Hookers for Trump.” https://apple.news/Az2hAo6yqT8uKJSuAX26F1Q  Don’t hold your breath,  folks!

 

At the same time, former DOJ Inspector General Michael R. Bromwich was telling WashPost’s Greg Sargent that the conduct of Trump and Billy the Toady was an “existential threat to the institutions that most of us value, prize and have served.” https://www.washingtonpost.com/opinions/2020/02/12/trump-openly-corrupts-doj-former-insider-sounds-alarm/.  Right on with that!

This is not “normal.” This is not “right.” It’s time for those of us who still believe in American democracy to take a stand in November to remove Trump and the sociopathic element that he represents in our society from power. Otherwise, the “race to the bottom” will continue, unabated. And more innocent people will be hurt by or die because of this unprincipled, totally immoral lunatic.

PWS

02-12-20

 

 

CONTEMPT FOR COURTS: 7TH CIR. BLASTS BIA FOR MISCONDUCT: “We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.” — Baez-Sanchez v. Barr — Chief “Perp” Billy Barr remains at large to inflict more wanton damage on our republic, our legal system, and the most vulnerable humans!

FULL DECISION:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

Baez-Sanchez v. Barr, 7th Cir., 01-23-20, published

PANEL:  BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge Easterbrook

KEY QUOTE:

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our deci- sion is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive in- admissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez- Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the la]er. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive deci- sions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board’s decisions. 8 U.S.C. §1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.

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

A NOTE TO THE 7TH CIRCUIT AND OTHER ARTICLE III JUDGES:

My sympathies to you. 

But, frankly, rather than coming as a “shock,” you should know that similar stuff happens every day in our U.S. Immigration Courts, which are not “courts” by any known definition, do not provide fair and impartial decision makers, do not satisfy even minimal standards of Constitutional Due Process, and operate in a blatantly unconstitutional manner that you and your colleagues in other circuits and the Supremes have condoned for decades as it unfolded right under your noses. Contempt for the law, disregard of basic Due Process and fundamental fairness, bias against immigrants, particularly asylum seekers, rude treatment, disrespect for lawyers, contempt for the other coequal branches of Government, and failure to respect human decency and dignity are now among the “staples” of today’s “captive” Immigration Courts.

It’s just that most litigants don’t have the wherewithal and and access to competent lawyers to take their cases all the way to the Circuit Courts, sometimes several times as happened in this particular case, in a search for justice. They are, in very plain terms, simply railroaded out of the country without regard to the law or our Constitution.

Sadly, even when they do get before your colleagues across the country, far too many of them ignore the contemptuous travesty of justice being perpetrated by the Department of Justice in the Immigration “Courts.” They merely “rubber stamp” the defective final product. It’s called “going along to get along” or “cowardice in the face of tyranny.” 

For some reason, not obvious those of who once put our careers on the line to stand up for justice and the legal rights and human dignity of the most vulnerable among us, many, many Article III Judges seem to treat “life tenure” as a sinecure that empowers them to ignore needlessly ruined lines and human suffering, rather than as an opportunity, given to none others within our democratic institutions, to stand up for truth, justice, and the Constitution, even in the face of an overbearing and tyrannical Executive who has no respect for your functions. 

Since you seem to have disturbingly little understanding of the true nature of the system which forms a significant part of your appellate workload, let me help you out. Members of the Board of Immigration Appeals are not true “judges” in any sense of the word. They are “employees” of Attorney General Billy Barr. 

Billy himself is an acolyte of the “Unitary Executive” — a neo-fascist concept described by former White House Counsel and ex-con John Dean as meaning “that neither Congress nor the federal courts can tell the President what to do or how to do it.” In Billy’s view,. the power of Donald Trump, or any other GOP President (I doubt that he would apply it to a Democrat President), is unlimited and unfettered and the functions of the Judiciary and the Legislature are largely meaningless, except to the extent that they align with Trump’s agenda. The same goes for the U.S. Constitution and the U.S. Code. They are nothing more than what Donald Trump and his toadies like Billy say they are.

Billy Barr is also an unapologetic agent of DHS Enforcement. Although nominally listed as a “party” before these “kangaroo court’ proceedings involving migrants, Barr and his equally contemptuous and lawless predecessor, Jeff “Gonzo Apocalypto” Sessions, have made it clear that “their judges” are to operate as an adjunct of their “partners” at DHS enforcement. Their only meaningful function is to railroad as many migrants as possible out of the country without regard to Due Process or legal rights. 

Indeed, both Barr and Sessions have simply rewritten the law, through bogus “precedent decisions” that plainly violate the basic rules of judicial ethics requiring impartiality and forbidding prejudgment of cases, as will as requiring that litigants and their attorneys be treated with basic respect and civility. All of these “bogus precedents” favor DHS Enforcement; none favor the individuals trying to save their lives and vindicate their legal rights. A number reverse well-established rules insuring fair adjudication, particularly for asylum seekers, while others deprive “their judges” of even minimal power to manage their dockets in a rational manner.

Additionally, Sessions and Barr have proved to be historically incompetent managers. While doubling the number of Immigration Judges, by hiring almost exclusively from the ranks of government prosecutors, they have more than doubled the court backlog, now approximately 1.1 million “active” cases with another 300,000 “waiting in the wings” as a result of a mindless and unethical precedent decision by Sessions reversing years of slow but incremental progress on docket management. 

They have also created this dysfunctional mess through a process of eliminating the reasonable and sensible use of priorities and “prosecutorial discretion” by DHS in the Immigration Courts as well as by using a process known as “Aimless Docket Reshuffling” or “ADR.” Under ADR, judges and cases are shuffled around the country and the dockets are rearranged to respond to the “emergency of the day” while “ready for trial” cases, some of which have been pending for many years, are arbitrarily “orbited” to the end of dockets, some of which stretch out beyond 2024.

The judges and Board Members work for Billy Barr, who can fire them, reassign them, send them off to the FOIA unit, or turn them into “hall walkers.” (All of which actually happened during the reign of John Ashcroft, where a group of us were “punished” for exerting our authority as independent quasi-judicial officials and the BIA was absurdly cut from 23 Members to 12, under an astoundingly disingenuous claim of “efficiency.” By comparison, Barr recently announced an equally ill-conceived and unjustified plan to expand the BIA to over 50 Members stationed throughout the country).

Under these conditions, it is hardly surprising that Board Members feel themselves compelled and justified in ignoring your court orders in favor of a footnote in letter from the Attorney General, “the boss.” It’s completely consistent with the theory of the all-powerful “Unitary Executive” and the actuality that Board Members and Immigration Judges are constantly told that there are “mere employees” of the Attorney General required to carry out his “policies” under the threat of job loss.

The good news is that you folks aren’t as powerless as you seem to think yourselves to be. You don’t actually need a “motion” from private counsel to:

  • Hold this systemic clown show purporting to be a “court” system unconstitutional, as it most surely is, and shut it down pending legislative reform;
  • Throw Billy Barr in jail for his contemptuous behavior in allowing the BIA to violate your valid orders and then compounding it by neither confessing error nor apologizing, but rather sending his DOJ attorneys in to waste your valuable time and insult your intelligence;
  • Schedule some contempt hearings for non-compliant EOIR officials and explain to them that the “Unitary Executive” is nothing more than a figment of Billy’s warped imagination and that, no matter who signs their paychecks, they are obliged to follow the laws, obey your orders, provide Constitutional Due Process of law to individuals coming before them, exercise independent judgment based on the law and facts in the record, and ignore any nonsense stemming from Billy & company that flies in the face of any of the foregoing.

Then and only then, by standing up for the rights of the most vulnerable among us and your constitutional prerogatives, will you become part of the solution instead of “just another snappy quote line in one of my Courtside headlines.” 

If you don’t act now, this dysfunctional mess of an out of control, illegal, and grotesquely mismanaged system will eventually fall into your collective judicial laps, no matter how much you would like to shun it. For example, Billy is encouraging, basically demanding, that the BIA make more use of largely judicially discredited. “summary affirmances” and often arbitrary, capricious, and sloppily reasoned, “single member opinions,” both entered without meaningful deliberation or discussion, to “rubber stamp” more removal orders. Indeed, one of your retired colleagues, Judge Richard Posner, was an outspoken critic of the shockingly unprofessional and frequently incorrect results produced by the earlier “weaponization” of  “assembly line justice,” featuring “summary affirmances” and “single member decisions” resulting from the “Ashcroft debacle.”

Billy and his EOIR bureaucratic toadies fully intend to further reduce the already questionable quality of the “legal product” that the BIA sends your way. They are counting on you folks to either 1) look the way and join the”rubber stamp brigade,” or 2) do their dirty work for them.  At that point, you will not be able to avoid the “judgment of history” regarding your own complicity and fecklessness in the face of lawless tyranny that is destroying our precious democratic institutions and even more precious human lives every day. Wake up and act, before it’s too late, for you and for our nation!

Due Process Forever!

With my very best wishes,

PWS

01-25-19

 

FOOTNOTE:

For those interested, Judge Easterbrook was appointed by President Reagan; Judge Bauer by President Ford; and Judge Hamilton by President Obama.

If nothing else, Billy and EOIR are uniting judges across the political spectrum in their disgust and outrage.

BIA GETS IT WRONG AGAIN: 2D CIR. SLAMS EOIR’S ERRONEOUS APPROACH TO “EQUITABLE TOLLING” — As the BIA Continues To Get The Fundamentals Wrong, Unethical Barr & Co. Push Already Stressed & Dysfunctional Immigration “Courts” For More & Faster Mistakes & More Unlawful Removals!

 

http://www.ca2.uscourts.gov/decisions/isysquery/2c04f16b-a109-44a1-8677-06d7451356bd/3/doc/18-204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2c04f16b-a109-44a1-8677-06d7451356bd/3/hilite/

EMELI KWASI ATTIPOE v. BARR, 2d. Cir., 12-19-19, published

PANEL: POOLER, LOHIER, and CARNEY, Circuit Judges.

OPINION BY: Judge Rosemary Pooler

KEY QUOTE:

  1. Here, as in Iavorski, nothing in the text of Section 545(d)(2) itself, or in its

  2. 4  legislative history, indicates that Congress intended the appeal filing deadline to

  3. 5  be jurisdictional. To the contrary, the House Conference Report states that

  4. 6  “[u]nless the Attorney General finds reasonable evidence to the contrary, the

  5. 7  regulations must state that administrative appeals be made within 30 days, except

  6. 8  that the appellate body may, upon motion, extend such period up to 90 days, if good cause

  7. 9  is shown by the movant.” H.R. Rep. No. 101‐955 at 133 (emphasis added). The

  8. 10  legislative history thus indicates that Congress was amenable to the idea of

  9. 11  extending the time to file an appeal past the deadline upon a showing of good

  10. 12   And the BIA may, sua sponte, decide to accept late filings under the self‐

  11. 13  certification process. It could not accept any late filings—exceptional

  12. 14  circumstances or not—if the filing deadline truly was jurisdictional.

  13. 15  We therefore extend Iavorksi’s interpretation of Section 545(d)(1) to its

  14. 16  sister subsection, Section 545(d)(2), and hold that the BIA must consider the

  15. 17  principles of equitable tolling when an untimely appeal is filed and the petitioner

  16. 18  raises the issue, as Attipoe did here. We remand to the BIA to consider whether 15

  17. 1  equitable tolling allows consideration of Attipoe’s late‐filed appeal. The BIA is

  18. 2  free to develop the factors it will apply in considering equitable tolling, although

  19. 3  we note that it need not start from scratch. In Holland, the Supreme Court set out

  20. 4  standards for courts to apply in determining whether equitable tolling is

  21. 5  appropriate: (1) a showing that a petitioner “has been pursuing his rights

  22. 6  diligently, and (2) that some extraordinary circumstance stood in his way.” 560

  23. 7  S. at 649 (internal quotation marks omitted). And in the context of a late

  24. 8  motion to reopen, we have held that petitioners seeking equitable tolling must

  25. 9  demonstrate (1) that their constitutional rights to due process were violated by

  26. 10  the conduct of counsel; and (2) that they exercised due diligence during the

  27. 11  putative tolling period. Iavorski, 232 F.3d at 135; see also Rashid v. Mukasey, 533

  28. 12  3d 127, 132 (2d Cir. 2008) (requiring that a petitioner prove diligence during

  29. 13  “both the period of time before the ineffective assistance of counsel was or

  30. 14  should have been discovered and the period from that point until the motion to

  31. 15  reopen is filed”); Cekic v. I.N.S., 435 F.3d 167, 170 (2d Cir. 2006) (requiring that

  32. 16  petitioner “affirmatively demonstrate that he exercised reasonable due diligence

  33. 17  during the time period sought to be tolled”). After it determines what the

16

1 2 3 4 5 6 7 8

standards for equitable tolling under Section 1003.38 are, the BIA should determine whether Attipoe satisfies those standards.

 

CONCLUSION

For the reasons given above, the petition is granted, the BIA’s decision is vacated, and this matter remanded to the BIA for further proceedings consistent with this opinion.

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

An honest, competent Attorney General would make fixing the glaring legal, quality control, and Due Process problems with the BIA’s performance “job one.”

Instead, White Nationalist political hacks Sessions, Whitaker, and Barr have maliciously pushed the BIA and the Immigration Courts to rush more defective unprofessional work product out the door faster, thereby guaranteeing unconstitutional miscarriages of justice and numerous wrongful removals.

Improper, mindless, designed to fail “haste makes waste” gimmicks by the regime actually make the astounding 1.3 million case Immigration Court backlog much much worse, rather than addressing it in a rational and professional manner consistent with Due Process of law.

That’s especially true in a system where many individuals are improperly and unconstitutionally forced to appear without assistance of counsel and many others suffer from “underperformance” of counsel in a totally stressed and unfair system where the problems are overwhelmingly caused by our Government‘s “maliciously incompetent” performance, but the consequences fall almost exclusively and most heavily on the individual victims of U.S. Government malfeasance.

The idea the the BIA deserves “deference” as a fair, impartial, “expert” tribunal is beyond absurd. It’s a flat out abdication of legal duty by the Article III Courts of Appeals. When will they finally put a stop to this mockery of justice and remove the biased, unethical, and malicious DOJ prosecutor from improper and unconstitutional control over the Immigration “Courts?” How many illegal removals on their watch are too many for the complicit and privileged “life-tenured ones?”

What if it were them or their families suffering and being abused in this ongoing national disgrace that passes for a “court system?”

PWS

12-20-19

 

CONFRONTING THE “AMERICAN STAR CHAMBER” — Innovation Law Lab, SPLC, CLINIC, & Others Force Article III Courts To Face Their Judicial Complicity In Allowing EOIR’s “Asylum Free Zones” & Other Human Rights Atrocities To Operate Under Their Noses

Tess Hellgren
Tress Hellgren
Staff Attorney/Fellow
Innovation Law Lab

My friend Tess Hellgren, Staff Attorney/Justice Catalyst Legal Fellow @ Innovation Law Lab reports:

 

Hi all,

 

As some of you are already aware, I am very pleased to share that Innovation Law Lab and the Southern Poverty Law Center filed a lawsuit this morning challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.  More information is available below and at http://innovationlawlab.org/faircourts/.

 

I would like to thank all of you again for participating in our IJ roundtable and sharing your experiences for our report on the immigration court system (you will see a reference to it in our press release below). The insights we gained over the course of that report were vital in helping us identify and understand the problems in the immigration courts under the current administration.

 

Sincerely,

 

Tess

 

 

FOR IMMEDIATE RELEASE

December 18, 2019

 

Contact:
Marion Steinfels, marionsteinfels@gmail.com / 202-557-0430

Ramon Valdez, ramon@innovationlawlab.org / 971-238-1804
Immigration Advocates File Major Lawsuit Challenging

Weaponization of the Nation’s Immigration Court System

Advocates Launch Immigration Court Watch App to Ensure

Greater Accountability, Transparency in Courts

 

WASHINGTON, DC – The Southern Poverty Law Center (SPLC), Innovation Law Lab (Law Lab),  Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC) and Santa Fe Dreamers Project (SFDP) have filed a federal lawsuit challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.

 

“Under the leadership of President Trump and the attorney general, the immigration court system has become fixated on the goal of producing deportations, not adjudications,” said Stephen Manning, executive director of Innovation Law Lab. “The system is riddled with policies that undermine the work of legal service providers and set asylum seekers up to lose without a fair hearing of their case.”

 

The complaint outlines pervasive dysfunction and bias within the immigration court system, including:

 

  • Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.
  • The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.
  • The Enforcement Metrics Policy, implemented last year, which gives judges a personal financial stake in every case they decide and pushes them to deny more cases more quickly.
  • The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, often giving families inadequate time to find an attorney and prepare for their hearings.

 

“The immigration courts make life-and-death decisions every day for vulnerable people seeking asylum – people who depend on a functioning court system to protect them from persecution, torture, and death,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “While prior administrations have turned a blind eye to the dysfunction, the Trump administration has actively weaponized the courts, with devastating results for asylum seekers and the organizations that represent them.”

 

The lawsuit was filed on behalf of six legal service providers whose work for asylum seekers has been badly impaired as a result of the unjust immigration court system.

 

“As the political rhetoric surrounding immigrants has become sharper, we’ve noticed a decline in the treatment our clients receive in immigration court,” said Linda Corchado, Director of Legal Services, Las Americas Immigrant Advocacy Center. “While asylum seekers are entitled to a full and fair hearing, their proceedings are too often rushed, and judges deny our requests for time to properly prepare their cases and collect and translate crucial evidence from across the world.”

 

In addition to filing on behalf of their own organizations, plaintiffs include Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC) and Santa Fe Dreamers Project (SFDP).

 

The complaint can be viewed here and here: http://innovationlawlab.org/faircourts.

 

In an effort to ensure greater transparency and accountability in the nation’s immigration courts, Innovation Law Lab also announced the full launch of an Immigration CourtWatch app, which enables court observers to record and upload information on the conduct of immigration judges.

 

The new tool allows data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic bias and other unlawful court practices. This data can be used to bolster policy recommendations, along with advocacy and legal strategies.

 

Advocates, attorneys and other court watchers are encouraged to download and access the app available here: http://innovationlawlab.org/courtwatch.

In June, Law Lab and SPLC released a report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, on the failure of the immigration court system to fulfill the constitutional and statutory promise of fair and impartial case-by-case review. The report can be accessed here: The Attorney General’s Judges:  How the U.S. Immigration Courts Became a Deportation Tool.

###

 

The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org and follow us on social media: Southern Poverty Law Center on Facebook and @splcenter on Twitter.  

 

Innovation Law Lab, based in Portland, Oregon with projects around the country and in Mexico, is a nonprofit organization that harnesses technology, lawyers, and activists to advance immigrant justice. For more information, visit www.innovationlawlab.org.

 

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

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

 

And, here’s a statement in support of this much-needed litigation action from my distinguished Round Table colleague Judge (Ret.) Ilyce Shugall:

 

These were my remarks during the press conference:

 

I am Ilyce Shugall, a former immigration judge.  I became an IJ in 9/2017 and resigned in 3/2019.  I was sworn in by then-Chief IJ Mary Beth Keller.  She has also resigned.  I swore to uphold the constitution at my investiture.  When the administration made it impossible to continue to do so, I resigned.

 

I defended immigrants in immigration court for 18 years before I became an immigration judge, so I understood the inherent problems and limitations on judicial independence in a court system housed inside the Department of Justice, a prosecuting arm of the executive branch.  However, as Melissa said, this administration’s policies have entirely eroded what independence and legitimacy remained in the immigration court system.

 

As an immigration judge, I watched independence being stripped from the judge corps on a regular basis.  The attorney general ended administrative closure, taking away a vital docketing tool from the judges, while simultaneously contributing to the court’s ever-growing backlog.  The attorney general also significantly limited the judges’ ability to grant continuances.  Then, the attorney general and EOIR director implemented performance metrics which required judges complete 700 cases per year and created time limits on the adjudication of cases.  And this was only the beginning.  These policies have had a drastic impact on those appearing in immigration court, particularly those fleeing horrific violence who have been preventing from effectively presenting their cases.

 

New policies, memoranda, and regulations are being published regularly by this administration. Each one, an attack on the system, and each one with the goal to eliminate due process and expedite deportations.  I hope this lawsuit will eventually lead to a truly independent immigration court system, where judges can uphold their oaths and therefore immigrants receive the due process they are entitled and deserve.

 

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Every one of us in America is entitled to Due Process; every day, vulnerable asylum applicants and other migrants are being dehumanized and denied their Due Process rights by an ridiculously unconstitutional Immigration “Court” system operating with the complicity of life tenured Federal Judges, all the way up to the Supremes, who are failing to live up to their oaths of office.

 

The grotesque, constant, open abuse of the legal and constitutional rights of the most vulnerable among us threatens the rights of each of us, including those individuals responsible for putting the Trump regime in power, maintaining it, and the Article III judges who are failing to stand up to the regime’s unconstitutional cruelty and mocking of our the rule of law. Enough! It’s long past time for the Article IIIs to live up to their responsibilities and stand up for the victims of tyranny!

The case is

LAS AMERICAS IMMIGRANT ADVOCACY CENTER, et. al v. TRUMP  (D OR)

Due Process Forever; Complicit Courts Never!

 

PWS

 

12-18-19

 

THIRD CIRCUIT FINALLY EXPOSES THE BIA AS A BIASED, UNPROFESSIONAL, UNETHICAL MESS, THREATENING INDIVIDUALS WITH TORTURE &/OR DEATH IN VIOLATION OF DUE PROCESS AND HUMAN RIGHTS:  In Sharp Contrast To Recent “Go Along To Get Along” Actions By The Supremes, 9th, 5th, 11th, and 4th Circuits, Circuit Judges McKee, Ambro and Roth Stand Up & Speak Out On BIA’s Unbelievably Horrible Performance: “I think it is as necessary as it is important to emphasize the manner in which the BIA dismissed Quinteros’ claim that he would be tortured (and perhaps killed) if sent back to El Salvador. For reasons I will explain below, it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”

NELSON QUINTEROS, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, 3rdCir., 12-17-19, published

PANEL:  Circuit Judges McKee, Ambro and Roth

OPINION BY: Judge Roth

CONCURRING OPINION: Judge McKee, Joined By Judges Ambro & Roth

LINK TO FULL OPINION:  https://www2.ca3.uscourts.gov/opinarch/183750p.pdf

READ THE FULL CONCURRING OPINION RIPPING THE BIA HERE:

McKEE, Circuit Judge, with whom Judges Ambro and Roth join, concurring.

I join my colleagues’ thoughtful opinion in its entirety. I write separately because I think it is as necessary as it is important to emphasize the manner in which the BIA dismissed Quinteros’ claim that he would be tortured (and perhaps killed) if sent back to El Salvador. For reasons I will explain below, it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.

The BIA’s puzzling conclusions concerning Quinteros’ New York Yankees tattoo, although not the sole cause of my concern, illustrate the reasons I feel compelled to write separately. I will therefore begin by discussing the BIA’s decision-making process concerning this tattoo.

As Judge Roth notes, Quinteros testified that his New York Yankees tattoo would identify him as a former gang member.1 He also produced corroborating testimony to that effect from an expert witness and a study from the Harvard Law School International Rights Clinic. The first Immigration Judge to consider this evidence—which was apparently undisputed by the government—did so carefully and ultimately concluded that Quinteros “[h]as shown a clear likelihood that he would be killed or tortured by members of MS-13 and 18th Street gangs.”2 This finding was affirmed by the BIA upon its first review of Quinteros’ case,3 and affirmed again by the second IJ after we remanded for consideration in light of

1 Maj. Op. at 4-5.
2 JA125. The IJ also found the expert testimony convincing: “Dr. Boerman’s testimony persuasively illustrates how the Respondent could be mistaken for a gang member, since most gang members have tattoos, and there is a large number of MS-13 members in El Salvador . . .” Id.
3 JA130 (“We adopt and affirm the Immigration Judge’s decision.”).

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Myrie.4 Thus, two IJs and a Board member had previously examined and accepted this finding. Yet, for reasons that are not at all apparent, the BIA suddenly reversed that conclusion upon this fourth review.

In an explanation that is both baffling and dismaying, the BIA now claims: “Apart from his own testimony and the testimony of his expert witness, the record is devoid of any objective evidence establishing that a person with a New York Yankees tattoo without any other gang identifying marks will be identified as a . . . gang member and subjected to torture.”5 I am at a loss to understand what the BIA is referring to by requiring “objective” evidence. The IJ whose order was being reviewed had held that Quinteros was credible, stating: “Based on a review of the totality of evidence, the Court finds that Respondent’s testimony was consistent with the record and he was forthright with the Court regarding his past membership in MS-13 gang. Thus, the Court finds Respondent credible.”6 Moreover, there was nothing to suggest that Quinteros’ testimony lacked credibility regarding any aspect of his fear of MS-13 or how gang members would interpret his tattoo, and neither IJ suggested anything to the contrary.7

The BIA properly states the applicable standard of review of an IJ’s credibility finding is “clear error,”8 but nowhere does it suggest any basis for finding such error in either IJs’ determination. I am therefore unable to ascertain any justification for the BIA’s sudden reversal after the three previous cycles of review all arrived at the opposite conclusion. I also remain baffled by the BIA’s usage of “objective evidence.” The firsthand testimony of the victim of any crime is probative evidence if it is credible9—the issue is

4 JA14.
5 JA5 (emphasis added).
6 JA12.
7 See JA 14 (second IJ’s conclusion that Quinteros was credible); JA118 (first IJ’s conclusion that Quinteros was credible); see also Pet. Br. 41-42.
8 See BIA Opinion at JA2 (citing C.F.R. § 1003.1(d)(3)(i)).
9 For example, in statutory rape cases, fully half of the states (including Pennsylvania, where Quinteros is being held) have abolished their rules requiring corroboration. The victim’s

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the credibility of the witness. Once a witness’s testimony is found to be credible, it cannot arbitrarily be rejected merely to achieve a particular result. Even more salient, the BIA’s rejection of Quinteros’ credible testimony is inconsistent with controlling precedent and the regulations governing CAT relief.10 Those regulations state: “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”11 Thus, it is clear that corroborative evidence may not be necessary. In this case, where the testimony of the applicant is credible and is not questioned in any way, there is no reason to need corroboration.

Accordingly, Quinteros’ testimony should have been sufficient proof of any dispute about his tattoo even if he could be described as lacking objectivity. Moreover, there was nothing offered to suggest that the expert witness or the report of the Harvard Clinic was anything less than objective. It is impossible to discern from the record why the BIA refused to accept that external evidence. Moreover, given its apparent disregard for these three distinct, previously accepted pieces of evidence, I seriously doubt whether any evidence would have been capable of changing the agency’s analysis. Thus, it is the BIA’s own objectivity that concerns me here.

The agency’s discussion of the location of Quinteros’ tattoo heightens these concerns. First, the BIA expressed

account, if credible, is sufficient. See 18 PA. CONS. STAT. § 3106 (2018) (“The testimony of a complainant need not be corroborated in prosecutions under [Pennsylvania criminal law]. No instructions shall be given cautioning the jury to view the complainant’s testimony in any other way than that in which all complainants’ testimony is viewed.”); Vitauts M. Gulbis, Annotation, Modern Status of Rule Regarding Necessity for Corroboration of Victim’s Testimony in Prosecution for Sexual Offense, 31 A.L.R. 4th 120 § 4[a] (1984).

10 See, e.g., Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011) (accepting as objective evidence the testimony of the petitioner alone); Auguste v. Ridge, 395 F.3d 123, 134 (3d Cir. 2005) (accepting as “objective” the “[e]vidence of past torture inflicted upon the applicant . . .”). 11 8 C.F.R. § 208.16.

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skepticism because the record does not contain a photograph of the tattoo, “or a description of its size and design.”12 It faulted Quinteros for not establishing that the tattoo is “publicly visible,” and stated, “[t]he record simply indicates that he has a tattoo on his right arm.”13 Yet, the Government never contested the existence of the tattoo and, as I have explained, Quinteros’ testimony about it was accepted as credible by the IJ.

Then the BIA objected that Quinteros never “clearly specified the location of his New York Yankees tattoo and his expert witness did not know its location.”14 However, two sentences later, the BIA states that “[t]he Record . . . simply indicates that he [Quinteros] has a tattoo on his right arm.”15 Therefore, not only was there never a dispute about the existence of the tattoo, there was also no dispute as to its location, and the BIA’s abortive suggestions to the contrary are simply inconsistent with a fair and neutral analysis of Quinteros’ claim. Finally, even if one sets that all aside, I can find no reasonable basis for the BIA to suppose that the specific design of the tattoo or testimony about its size was even necessary. Whatever its exact appearance, it was uncontested that it was a New York Yankees tattoo. And as noted by Judge Roth, the record had established that awareness of gang use of tattoos is so prevalent in El Salvador that individuals are routinely forced by police and rival gangs to remove their clothing for inspection of any tattoos that may be present.16 It therefore pains me to conclude that the BIA simply ignored evidence in an effort to find that Quinteros’ tattoo would not place him in peril as it was underneath his clothing.17

12 JA5.
13 JA5.
14 Id.
15 Id.
16 Maj. Op. at 22; see also JA61, 90-91, 162. Overlooking so obvious an inference of danger—arising from the undisputed existence of Quinteros’ tattoo—contradicts our directive that “the BIA must provide an indication that it considered such evidence, and if the evidence is rejected, an explanation as to why . . .” Zhu v. Att’y Gen., 744 F.3d 268, 272 (3d Cir. 2014). 17 JA5.

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As troubling as the mishandling of Quinteros’ evidence might be standing alone, the BIA’s errors here are not an isolated occurrence. There are numerous examples of its failure to apply the binding precedent of this Circuit delineating the proper procedure for evaluating CAT appeals.18 Indeed, that framework has been mishandled, or simply absent, from several BIA opinions in the two years since we explicitly emphasized its importance in Myrie.19

As Judge Roth explains, Myrie instituted a two-part inquiry for evaluating whether a claim qualifies for relief under CAT. She describes the steps required and the points which must be addressed;20 we normally accept the BIA’s well- reasoned conclusions on each of these points, however,

“[t]he BIA must substantiate its decisions. We will not accord the BIA deference where its findings and conclusions are based on inferences

18 For our particular decisions on this topic, see Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017); Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303 (3d Cir. 2011).
19 Myrie, 855 F.3d at 516 (requiring the BIA to follow the process we have delineated, as, “[i]n order for us to be able to give meaningful review to the BIA’s decision, we must have some insight into its reasoning.”) (quoting Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003)). Among the examples of BIA error, see Serrano Vargas v. Att’y Gen., No. 17-2424, 2019 WL 5691807, at *2 (3d Cir. Nov. 4, 2019) (finding it “unclear” whether the BIA followed our precedent); Guzman v. Att’y Gen., 765 F. App’x. 721 (3d Cir. 2019) (finding ultimately non-determinative an incorrect application of the Myrie and Pieschacon-Villegas standards which had been summarily affirmed by the BIA); Zheng v. Att’y Gen., 759 F. App’x. 127, 130 (3d Cir. 2019) (requiring the appeals court to read between the lines of the BIA opinion to understand whether the conclusion satisfied the Myrie test); Antunez v. Att’y Gen., 729 F. App’x. 216, 223 (3d Cir. 2018) (concluding the BIA applied the wrong standard of review under Myrie).

20 Maj. Op, at 21.

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or presumptions that 21 are not reasonably grounded in the record.”

In other words, the BIA cannot act arbitrarily. We expect that it will “examine the relevant data and articulate a satisfactory explanation for its actions, including a ‘rational connection between the facts found and the choice made.’”22 Here, as already seen, the BIA’s conclusions fell far short of that low bar. According deference would therefore be to compound a mistaken application of law.

The BIA’s misapplication of Myrie here is consistent with other examples. Beginning with the first prong of Myrie’s first question (what will happen if a petitioner is removed to his or her country of origin), the BIA ignored evidence in the record. I have already discussed much of its tattoo analysis.23 Similarly, the BIA simplistically concluded that because Quinteros left El Salvador when he was a boy, he would not be recognized by El Salvadorian gangs upon his return.24 That conclusion was clearly contradicted in the record by credible and undisputed evidence that Quinteros knows “at least 70” current or former gang members in the United States who were deported to El Salvador and would recognize him there.25 The BIA was required to at least review the evidence Quinteros offered and provide a non-arbitrary reason for rejecting it.26

21 Kang v. Att’y Gen., 611 F.3d 157, 167 (3d Cir. 2010) (quoting Sheriff v. Att’y Gen., 587 F.3d 584, 589 (3d Cir. 2009)).
22 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

23 JA5.
24 JA4. The BIA strangely maintains in the face of the evidence presented that “[Quinteros] has not clearly articulated exactly how anyone in El Salvador will remember or recognize him . . .” id.
25 JA63-64.
26 Huang, 620 F.3d at 388 (“The BIA simply failed to address any evidence that, if credited, would lend support to [Petitioner’s case], and thus the decision does not reflect a consideration of the record as a whole.”).

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And the errors do not stop there. Because it had not substantively addressed the testimony offered above, the BIA was left without substantive findings on which to determine Question II of the Myrie framework: does what will likely happen to a petitioner amount to torture? As Judge Roth makes clear, the BIA is required to conduct both steps of the Myrie analysis.27 By declining to reach clear findings of what would happen upon removal, the BIA prevented itself from then being able to determine whether those results met the legal standard for torture. The Myrie framework cannot be so easily evaded.

Lastly, to briefly reiterate Judge Roth’s important observations regarding Myrie’s second prong,28 a proper inquiry must “take[] into account our precedent that an applicant can establish governmental acquiescence even if the government opposes the [group] engaged in torturous acts.”29 This is only logical, as few countries admit to torturing and killing their citizens, even when privately condoning such conduct. Thus, if we simply took countries at their word, there would barely be anywhere on the globe where CAT could apply. We have previously made clear that this is the proper inquiry to determine acquiescence and have remanded based on the BIA’s failure to look past the stated policies of a given government.30 Other Circuit Courts of Appeals have done the same.31 The BIA is thus on notice that results, not press

27 Maj. Op, at 23 (citing Myrie, 855 F.3d at 516).
28 Maj. Op, at 24-25.
29 Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 312 (2011).
30 See, e.g., Guerrero v. Att’y Gen., 672 F. App’x 188, 191 (3d Cir. 2016) (per curiam); Torres-Escalantes v. Att’y Gen., 632 F. App’x 66, 69 (3d Cir. 2015) (per curiam).
31 Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1140 (7th Cir. 2015) (“[I]t is success rather than effort that bears on the likelihood of the petitioner’s being killed or tortured if removed”); Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013) (“If public officials at the state and local level in Mexico would acquiesce in any torture [petitioner] is likely to suffer, this satisfies CAT’s requirement that a public official acquiesce in the torture, even if the federal government . . . would not similarly acquiescence.”); De La Rosa v. Holder,

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releases or public statements, are what drive the test for

acquiescence under Myrie.
III.

In Quinteros’ case, as has happened before, “[t]he BIA’s opinion frustrates our ability to reach any conclusion . . .”32 In Cruz, we stated that “the BIA’s cursory analysis ignored the central argument in [Petitioner’s] motion to reopen that he was no longer removable for committing a crime of moral turpitude.”33 In Kang, we disapproved when “[t]he BIA ignored overwhelming probative evidence . . . its findings were not reasonably grounded in the record and thus . . . . [t]he BIA’s determination was not based on substantial evidence.”34 In Huang, we complained when “[t]he BIA’s analysis [did] little more than cherry-pick a few pieces of evidence, state why that evidence does not support a well-founded fear of persecution and conclude that [petitioner’s] asylum petition therefore lacks merit. That is selective rather than plenary review.”35 There are simply too many additional examples of such errors to feel confident in an administrative system established for the fair and just resolution of immigration disputes.36 Most disturbing,

598 F.3d 103, 110 (2d Cir. 2010) (“[I]t is not clear . . . why the preventative efforts of some government actors should foreclose the possibility of government acquiescence, as a matter of law, under the CAT.”).

32 Cruz v. Att’y Gen., 452 F.3d 240, 248 (3d Cir. 2006).
33 Id.
34 Kang, 611 F.3d at 167.
35 Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010).
36 See, e.g., Huang Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 259 n.1 (3d Cir. 2019) (en banc) (castigating the BIA for its “blatant disregard of the binding regional precedent . . .”); Mayorga v. Att’y Gen., 757 F.3d 126, 134-35 (3d Cir. 2014) (reversing a BIA decision without remand and observing that “[i]deally the BIA would have provided more analysis, explaining why it accepted the IJ’s (erroneous) reasoning . . .”) (alteration in original); Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 229 (3d Cir. 2011) (finding the BIA “erred by misapplying the law regarding when corroboration is necessary . . .”); Gallimore v. Att’y Gen., 619 F.3d 216, 221 (3d Cir. 2010) (holding that “[t]he BIA’s analysis in all likelihood rests on an historically inaccurate premise . . . . the

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these failures gravely affect the rights of petitioners, such as Quinteros, who allege that they will face torture or death if removed to their country of origin.

Although the BIA is “[n]ot a statutory body . . .”37 it has been described as “[t]he single most important decision-maker in the immigration system.”38 I doubt that any court or any other administrative tribunal so regularly addresses claims of life-changing significance, often involving consequences of life and death. It is therefore particularly important that the opinions of the BIA fairly and adequately resolve the legal arguments raised by the parties and render decisions based only upon the record and the law.

I understand and appreciate that the BIA’s task is made more difficult by the incredible caseload foisted upon it, and the fact that BIA members (and IJs for that matter) are horrendously overworked.39 But administrative shortcomings

BIA’s opinion fails adequately to explain its reasoning and, in any event, appears incorrect as a matter of law.”). Nor is this a concern of recent vintage, the BIA has been on notice for well over a decade. See, e.g., Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (“[T]he BIA in this case has failed even to provide us with clues that would indicate why or how [petitioner] failed to meet his burden of proof. As a result, ‘the BIA’s decision provides us with no way to conduct our . . . review.’”) (quoting Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001)); Abdulai, 239 F.3d at 555 (“[T]he availability of judicial review (which is specifically provided in the INA) necessarily contemplates something for us to review . . . . the BIA’s failure of explanation makes [this] impossible . . .”) (emphasis in original).

37 Anna O. Law, THE IMMIGRATION BATTLE IN AMERICAN COURTS 23 (2010) (citing unpublished internal history of the BIA).
38 Andrew I. Schoenholtz, Refugee Protection in the United States Post September 11, 36 COLUM. HUM. RTS. L. REV. 323, 353 (2005).

39 See Am. Bar Ass’n, Comm’n on Immigration, 2019 Update Report: Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and

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can never justify denying the parties a fair and impartial hearing, or excuse allowing adjudications to devolve into a mere formality before removal.

I would like to be able to feel comfortable that the lopsided outcomes in immigration proceedings40 reflect the merits of the claims for relief raised there rather than the proverbial “rush to judgment.” Thus, on remand, I can only hope that Quinteros’ claims are heard by more careful and judicious ears than he was afforded in this appearance.

Professionalism in the Adjudication of Removal Cases, Vol. 1, 20-21 (2019), available at https://www.naij- usa.org/images/uploads/newsroom/ABA_2019_reforming_th e_immigration_system_volume_1.pdf (noting the continued heavy caseload of the BIA, with an increasing number of appeals likely in the near future, and a resulting tendency to dispose of cases with single-member opinions that address only a single issue in the case).

40 Jaya Ramji-Nogales, et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 359-61 (2007) (reporting that between 2001 and 2005, the BIA’s rate of granting asylum fell by up to 84%, with some categories of applicants receiving asylum only 5% of the time).

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It’s about time! But, this is long, long, long, long overdue! Way overdue! It’s long past time for “harsh criticism” of the BIA’s unconstitutional and inexcusable behavior. Forget about treading on the feelings of the BIA judges. Start thinking about the lives of the individuals they are harming and potentially torturing and killing! It’s time for the “Article IIIs” to “can the legal niceties” and take some action to halt the abuses before more innocent lives are lost!

 

Refreshing as it is in some respects, this concurring opinion vastly understates the overwhelming case against the BIA being allowed to continue to operate in this unprofessional, unethical, and unconstitutional manner. In the end, the panel also makes itself complicit by sending the case back for yet another unwarranted remand for the BIA to abuse this individual once again. For God’s sake, grant the protection, which is the only possible legally correct result on this record. CAT is mandatory, not discretionary!

 

Interestingly, while the panel was hatching this remand, the BIA in Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019) was essentially “repealing CAT by intentional misconstruction” and running roughshod over almost every CAT precedent and principle described by the panel. How many times can the regime “poke the Article IIIs in the eyes with two sharp sticks” before the latter take some notice? You’re being treated like fools, cowards, and weaklings, and the rest of us are daily losing whatever respect we once had for the role of life-tenured Federal Judges in protecting our republic and our individual rights!

 

Clearly, the intentionally skewed outcomes in asylum and other protection cases are a result of the regime’s illegal and unconstitutional White Nationalist “war on asylum,” particularly directed against vulnerable women, children, and individuals of color.  Many of these individuals are improperly and unconstitutionally forced to “represent” themselves, if they are even fortunate enough to get into the hearing system. It’s modern day racist Jim Crow with lots of gratuitous dehumanization to boot. And, it’s being enabled by feckless Article III appellate courts.

 

Judge McKee and his colleagues need not “wonder” if the skewed results of this system are fixed. The public pronouncements by overt White Nationalists like Session, Barr, Miller, “Cooch Cooch,” and Trump himself make their disdain for the law, the Constitution, individuals of color, and the Federal Courts crystal clear. There is no “mystery” here! Just look at “Let ‘Em Die In Mexico” or the preposterously fraudulent “Safe Third Country Agreements” that have effectively eliminated Due Process and U.S. protection laws without legislation.

 

Read the truth from the National Association of Immigration Judges or one of the many other experts in the field who have exposed the unconstitutional operations of the Immigration Courts and the need for immediate action to end the abuse and restore at least a semblance of Due Process! Of course, these aren’t fair and impartial adjudications as required by the Constitution. They haven’t been for some time now. No reasonable person or jurist could think that “kangaroo courts” operating under the thumb of enforcement zealots like Sessions and Barr could be fair and impartial as required by the Constitution!

 

And the “backlogs” adding to the pressure on the BIA and Immigration Judges are overwhelmingly the result of “Aimless Docket Reshuffling” by the DOJ, which went into “overdrive” during this regime. The regime then “pulls the wool” over the eyes of the Article IIIs and the public by deflecting attention from their own “malicious incompetence” while shifting the blame to the victims – the respondents and their attorneys. How cowardly and dishonest can one get? Yet, the Article IIIs fail time after time to look at the actual evidence of “malicious incompetence” by the Trump regime that has been compiled by TRAC and others!

 

Sessions and Barr have made it clear that the only purpose of their weaponized and “dumbed down” Immigration “Courts” is to churn out removal orders on the “Deportation Express.” “Reflect on the merits?” Come on, man! You have got to be kidding! There is nothing in this perverted process that encourages such care or reflection or even informed decision making. That’s why judges are on “production quotas!” It’s about volume, not quality. Sessions actually said it out loud at an Immigration Judges’ so-called “training session!” In the unlikely event that the respondent actually “wins” one, even against these odds, Sessions, Whitaker, and Barr have all shown how they can unconstitutionally and unethically simply reach down and change results to favor the DHS.

 

As the bogus denials pile up, even though country conditions are not materially improving in most “sending” countries, the Trump Regime, EOIR, DOJ, and DHS use these unfair results to build their false narrative that the artificially inflated denial rates reflect the lack of merits of the claims.

 

Would Court of Appeals Judges or Justices of the Supremes subject themselves or their families to “Immigration Court Justice” in any type of meaningful dispute? Of course not! So, why is it “Constitutionally OK” for often unrepresented individuals on trial for their lives to be subjected to this system? It clearly isn’t! So, why is it being done every day?

 

End the dangerous, unethical, and immoral “Judicial Task Avoidance.” Time for the Article IIIs to step up to the plate, stop enabling, stop remanding, stop looking the other way, and rule this entire system unconstitutional, as it most certainly is. Stop all deportations until Congress creates an independent Immigration Court system that complies with Due Process! Assign a “Special Master” to run EOIR without DOJ interference. Those few cases where the public health or safety is actually at risk should be tried before U.S. Magistrate Judges or retired U.S. District Judges until at least temporary Due Process fixes can be made to the Immigration Courts.

 

Sound radical? Not as radical as sentencing vulnerable individuals to death, torture, or other unspeakable harm without any semblance of Due Process — subjecting individuals to a “crapshoot for their lives.” And, that’s what we’re doing now because Article III Courts don’t have the guts to do their job and “just say no” – once and for all — to EOIR’s daily charade that mocks our Constitution and our humanity!

 

Due Process Forever!

A maliciously incompetent regime and complicit courts, never!

PWS

12-17-19

TOM TOLES @ WASHPOST ON BILLY BARR

TOLES ON BARR
Tom Toles on Billy Barr

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PWS

12-15-19