"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny. … Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching the challenged conditions to the FY 2017 and FY 2018 grants, and that the Attorney General’s decision to attach the conditions to the FY 2017 and FY 2018 Byrne JAG grants violated the constitutional principle of separation of powers. In light of our determination as to the language in § 10153, it is unnecessary to reach the constitutionality of § 1373 under the anticommandeering doctrine of the Tenth Amendment. We affirm the district court’s grant of injunctive relief as to the application of the challenged conditions to the Byrne JAG grant program-wide now and in the future, which included enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award to grants in FY 2017, FY 2018, FY 2019 and any other future program year insofar as that denial or delay is based on the challenged conditions or materially identical conditions. We remand for the district court to determine if any other injunctive relief is appropriate in light of our determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees. Finally, because the injunctive relief is necessary to provide complete relief to Chicago itself, the concern with improperly extending relief beyond the particular plaintiff does not apply, and therefore there is no reason to stay the application of the injunctive relief.”
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The complete 111-page decision is available at the above link.
The 7th Circuit Panel was BAUER, MANION, AND ROVNER, Circuit Judges. The opinion is by Judge Rovner. Judge Manion filed a separate opinion concurring in the legal analysis, but dissenting from the nationwide scope of the injunction.
Some Federal Courts stand up for our rights in the face of Trump’s tyranny; others “roll over.” History will be their judge!
That being said, I wouldn’t be surprised to see the “JR Five” on the Supremes — who seldom see a White Nationalist abuse of authority picking on immigrants that they aren’t willing to validate — will “torque the law and the facts as necessary” to further the regime’s scofflaw, xenophobic agenda.
History eventually will catch up with them too. History recognizes neither life tenure nor “absolute immunity.”
“Today U.S. District Court Judge Richard Martinez ordered the federal government to release an immigrant detained at the Northwest Detention Center (NWDC), AKA Northwest ICE Processing Center (NWIPC), who is at high risk of serious illness or death if he contracts COVID-19. The Court ordered the release of Mr. Pimentel, a 65-year old man who has been a lawful permanent resident in the United States since 1996, but was placed in removal proceedings after pleading guilty to a drug offense. After completing his sentence, Mr. Pimentel returned to live with his family in Salt Lake City, Utah, but was subsequently arrested by ICE in May of 2019 after he appeared for an appointment. ICE ultimately transferred Mr. Pimentel to the detention center in Tacoma, Washington.
Judge Martinez found that federal immigration authorities “detain Petitioner at the NWIPC in conditions that create a substantial risk he will be exposed to the coronavirus and contract COVID-19.”
Judge Martinez relied on declarations from public health experts stating that once COVID-19 reaches the detention center it will spread like “wildfire.” The Court noted that experts have attributed a mortality rate as high as 15% for high risk individuals who contract COVID-19. Judge Martinez ultimately concluded that “Petitioner has made a clear showing that he faces a substantial risk of serious harm due to the conditions of his present confinement and the fact that he is at higher risk for serious illness or death from COVID-19.”
Judge Martinez ordered that Mr. Pimentel be immediately released. He will now be permitted to return to live with his son and daughter-in-law in Salt Lake City while he waits for his immigration case to be completed.
Wonder how many more “Mr. Pimentels” are out there in the Gulag but in the wrong jurisdiction or without the good fortune to get the legal representation necessary to secure release?
What if we had a functional, impartial, expert U.S. Immigration Court that could order release of folks like this without protracted litigation in the U.S. District Courts? Indeed, what’s the purpose of a so-called “court system” that’s incapable of doing much of anything except “rubber stamping” the unconstitutional actions and extraordinarily poor judgments of DHS officials and their contractors?
Law360, Washington (April 27, 2020, 8:50 PM EDT) — A D.C. federal judge ordered the government Monday to apply certain standards laid out in a landmark consent decree that established bedrock standards of care for migrant children in custody to adults held in three residential detention centers in Pennsylvania and Texas amid the coronavirus outbreak. U.S. District Judge James Boasberg ruled during a teleconference hearing that U.S. Immigration and Customs Enforcement must deliverby May 15 an account of what’s being done to expedite the release of adult detainees as well as efforts to ensure those detained at facilities with confirmed COVID-19 cases are being protected. The decision came amid allegations by immigration advocacy groups that ICE has exhibited indifference to families at high risk of contracting the disease and that no appropriate steps are being taken to prevent the spread of the novel coronavirus. The Rapid Defense Network, ALDEA — the People’s Justice Center, and the Refugee and Immigrant Center for Education and Legal Serviceslast month sued federal immigration authorities, demanding the immediate release of dozens of migrant families at detention centers in Berks County, Pennsylvania, and Dilley and Karnes City, Texas. In his ruling Monday, Judge Boasbergonce again declined to grant immediate release of the asylum-seekers. But the judge applied some conditions in the landmark 1997 federal consent decree known as the Flores settlement agreement, which established bedrock standards of care for migrant children in custody. The decree prohibits the U.S. Department of Homeland Security from detaining migrant children beyond the 20-day limit. Judge Boasberg expanded that holding to cover their parents, but stopped short of mandating the government to explain why an adult has been in detention for more than 20 days. The judge noted that while adults are not protected under Flores, the government has been providing some information on adults in detention to U.S. District Judge Dolly Gee of California, who has been overseeing the consent decree as part of a long-running class action. “I think this is sufficient at this point to ensure the constitutional treatment of” detainees, the judge said of his order during the teleconference session. Nonetheless, Judge Boasberg indicated that ICE has been making substantial efforts to prevent the spread of the novel coronavirus at the facilities, pointing out that the three centers are at least 16% under capacity. So far, none of the centers have recorded cases of COVID-19, the government told the court. “Conditions are definitely improving,” the judge said. “That’s highly significant to me.” Monday’s order builds upon previous decisions by the judge, who instructed ICE to provide the court with statistics on the number of detained migrants seeking asylum; testing and treatment plans; and compliance with the Centers for Disease Control and Prevention’s guidance for congregate settings such as detention centers. Vanessa Molina, a U.S. Department of Justice attorney representing ICE, argued against applying Flores in this case. She maintained that it would be improper to demand that the agency explain why adults are in detention for more than 20 days because the consent decree was never meant to include parents or adults. Detention is a part of the removal process pending a deportation proceeding, Molina continued, and the plaintiffs have not demonstrated their burden of showing why they should be released. And there’s no finding in this case that ICE had been deliberately indifferent to the medical needs of asylum-seekers with COVID-19 risk factors, she said. “ICE is authorized to detain the adults pending deportation proceedings,” the government attorney doubled down
Judge Boasberg responded that the government has been producing detention information on minors to the California federal judge and asked, “Why would there be any objections … [to provide similar data to the D.C. district court] for the adults?” Morgan Lewis & Bockius LLP partner Susan Baker Manning, an attorney for the migrant families, conceded to the government’s argument that detention is authorized as part of the deportation process. But the lawyer contended that her clients are being held in unsanitary conditions, that they are not subject to mandatory detention, and that they are not a danger to the community because they have no criminal histories. Manning had urged Judge Boasberg to include the 20-day condition because it “is a perfect and reasonable benchmark to understand why migrants are being held in facilities where they are at risk of contracting COVID-19.” But the judge declined to do so. The judge has set a May 20 teleconference hearing for the parties to discuss the latest developments in the litigation. The migrants are represented by Susan Baker Manning of Morgan Lewis & Bockius LLP, ManojGovindaiah and Curtis F.J. Doebbler of the Refugee and Immigrant Center for Education and Legal Services, Amy Maldonado of The Law Office of Amy Maldonado, and Sarah T. Gillman and Gregory P. Copeland of Rapid Defense Network. The government is represented by Vanessa Molina of the U.S. Department of Justice’s Civil Division’s Office of Immigration Litigation and Daniel Franklin Van Horn of the U.S. Attorney’s Office for the District of Columbia. The case is O.M.G. et al. v. Wolf et al., case number 1:20-cv-00786, in the U.S. District Court for the District of Columbia.
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Thanks to Dan Kowalski over at LexisNexis Immigration Communityfor sending this!
Sadly, the lack of leadership among all three branches of our Government means that what should be uniform policies applicable throughout the country are instead litigated piecemeal, with differing results. Not surprisingly, as the regime touts draconian immigration “bans and bars” approaches to the coronavirus crisis, it continues to fail on the everyday “Xs and Os” of competent government, requiring constant prodding from lawyers, judges, and journalists to get the basics right.
“Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.”
[Hats off to Petra D. Fist!]
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Get the full decision at the link.
Panel:GREENAWAY, JR., KRAUSE, and RESTREPO,
Circuit Judges
Opinion by:Judge Krause
Here’s my favorite quote from court’s unanimous opinion written by Circuit Judge Krause:
The government’s argument, however, is one we have squarely rejected. We long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief because “Congress instructed the Attorney General to establish an asylum procedure,” and “[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.” Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum claim). “[F]airness,” we explained, “mandate[s] that the asylum procedure promulgated by the Attorney General provide the most basic of due process.” Id.; see also Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough Cham has no constitutional right to asylum, he was entitled, as a matter of due process, to a full and fair hearing on his application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74
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(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.”).
More recently, in Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over claims for discretionary relief, we reiterated that “petitioners must receive a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.” Id. at 213 (internal quotation marks and citations omitted). That procedural due process right, we explained, is comprised of “three key protections” in immigration proceedings: “(1) ‘factfinding based on a record produced before the decisionmaker and disclosed to him or her’; (2) the opportunity to ‘make arguments on his or her own behalf’; and (3) ‘an individualized determination of his [or her] interests.’” Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)). In short, “[t]hroughout all phases of deportation proceedings, petitioners must be afforded due process of law.” Id.
So true. Yet, so often ignored in practice by the Supremes and Circuit Courts.
The current Immigration “Court” system is run by a politically biased enforcement official, Billy Barr, who solely controls judicial appointments, job retention, sets so-called “performance standards” intentionally weighted toward DHS Enforcement’s needs, establishes binding “precedents,” and changes results favorable to asylum seekers and other respondents when they don’t suit his nativist agenda. In this system, no respondent is receiving a “fundamentally fair hearing” before a “fair and impartial decision maker.”
Even if an Immigration Judge tries to act fairly in an individual case, as many do, they are still bound by the Attorney General’s pro-enforcement policies, and the specter of arbitrary reversal of results favorable to the respondent by so-called “certification” by the AG hangs over and materially compromises the entire system and every proceeding.
Indeed, by concentrating only on the small, and somewhat random, sampling of “petitions for review” that actually cross their desks, the Courts of Appeals and the Supremes are ignoring the systemic lack of fundamental due process that infects this entire dysfunctional and unfair system. Time to wake up and do the right thing!
Nice words are one thing. Actions an entirely different matter!
[Maj. Op.] “Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.”
[Dissent] “At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construction. It is also at odds with common sense. With virtually every other provision of the INA, Congress granted preferential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton. But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an immigration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s removal in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent.”
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Thanks Dan.
Justice Kavanaugh wrote the majority opinion.
As a frequent critic of the “J.R. Five” and their general predisposition to stretch to reward the regime over individuals seeking Due Process and fundamental fairness, I wasn’t surprised by this result.
As compared with trashing the legal rights of asylum seekers and those seeking legal status as “The Five” have done in other cases, this decision on waivers has a much more limited impact. Nevertheless, it does unnecessarily “screw” long-time members of our society with potential equities to offset their misconduct.
The vote should have been 9-0 in favor of Mr. Barton. The “GOP majority,” supposedly made up of “strict constructionists,” “torqued” the actual language of the statute to reach their preferred result — “stiffing” Mr. Barton who has resided in the U.S. since age 10.
By contrast, reading the statutory language at its face value, Justice Sotomayor and her dissenting colleagues also reached a practical, common sense result that would have allowed Immigration Judges to “weigh the equities” in deciding whether to grant the waiver to long-time green card holders. It by no means guarantees them a “win.” It just allows them and their families to to “make their case” on the merits.
Perhaps, effectively denying individuals a meaningful “day in court” on relief from deportation speeds up the “deportation railroad” a bit. But, at what cost?
“A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.
In his blistering rebuke of the government’s response to Covid-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” “
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Go on over to LexisNexis above for a link to the SPLC report and copy of Judge Bernal’s order.
Thanks and congrats to SPLC and all the pro bono all-stars involved for taking this on. Will there eventually be accountability and liability for what appears to be intentional, life threatening misconduct, or at best criminal negligence, among officials of the Trump regime?
“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”
[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]
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*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.
Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.
Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!
This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.
Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?
Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.
More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!
The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.
Due Process Forever! Captive Courts & Complicit Judges, Never!
“Hector Daniel Lopez Ordonez was conscripted into the Guatemalan military when he was 15 years old. As part of the G-2 intelligence unit, Lopez Ordonez was ordered— and repeatedly refused—to torture and kill people. After a particularly horrific incident in which Lopez Ordonez refused to murder a five-month-old baby and threatened to report the G-2’s abuses to human rights organizations, the G-2 confined him to a hole in the ground for ten months. Upon his release, he fled to the United States. Lopez Ordonez now petitions this Court to review an order from the Board of Immigration Appeals (“BIA”) denying his asylum application and ordering his removal to Guatemala. The BIA determined that Lopez Ordonez did not meet the nexus requirement to establish his eligibility for asylum—that is, he did not show past persecution on account of a statutorily protected ground. The record in this case, however, compels us to conclude that Lopez Ordonez has demonstrated that one central reason for his persecution by the Guatemalan military was his political opinion, a protected ground under the Immigration and Nationality Act (“INA”). Accordingly, we vacate the BIA’s nexus determination and remand for further proceedings.”
“Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.”
Beneath the smokescreens of the uncontrolled backlog and gross mismanagement at EOIR lies an uglier truth. The BIA is a politically motivated tool of the Trump regime that puts reaching preconceived denials of protection ahead of Due Process and the fair application of asylum law.
This case should have been an easy grant, probably a precedent. By requiring the DHS, the Asylum Office, and Immigration Judges to follow a properly fair and generous interpretation of asylum law that would achieve its overriding purpose of protection, an intellectually honest BIA with actual legal expertise in applying asylum laws would force an end to the racially-driven intentional perversion of asylum laws and Due Process by the Trump regime.
More cases granted at a lower level would discourage the largely frivolous attempts to deny asylum engaged in by the DHS here. It would reduce the backlog by returning asylum and other protection grants to the more appropriate 60%+ levels they were at before first the Obama Administration and now the Trump regime twisted the laws and employed various coercive methods to encourage improper denials to “deter” legitimate refugees from Central America and elsewhere from seeking protection.
With fair access to legal counsel, many more asylum cases could be well-documented and granted either by the USCIS Asylum Office (without going to Immigration Court) or in “short hearings” using party stipulations. The ability to project with consistency favorable outcomes allows and encourages ICE Assistant Chief Counsel to be more selective in the cases that they choose to fully litigate. That encourages the use of stipulations, pre-trial agreements, and prosecutorial discretion that allows almost all other courts in America, save for Immigration Courts, to control dockets without stomping on individual rights.
It would also force all Administrations to establish robust, realistic refugee programs for screening individuals nearer to the Northern Triangle to obviate the need for the journey to the Southern border. Additionally, compliance with the law would pressure our Government to work with the international community to solve the issues causing the refugee flow at their roots, in the refugee-sending countries, rather than misusing the U.S. legal system and abusing civil detention as “deterrents.”
“We hold that the BIA violated due process by relying on undisclosed evidence that Zerezghi and Meskel did not have an opportunity to rebut. In making its initial determination of marriage fraud, the BIA also violated due process by applying too low a standard of proof. On remand, it must establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.”
Robert Pauw Founding Partner Gibbs, Houston & Pauw Seattle, WA
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How totally perverse has the EOIR system become?
Well, the BIA’s sole function is to insure Due Process for individualsand to apply top-flight expertise and scholarship to keep the Immigration Courts, ICE, CBP, and USCIS in line and following the law and best practices.
Instead, the BIA has become a corner-cutting, sloppy, “rubber stamp” on DHS Enforcement and USCIS “enforcement wannabes.” Remember, early on, the Trump regime made it clear that service to the public, i.e., immigrants, their families, and their communities, was no longer “part of the mission” at USCIS. Instead, the mission is to help ICE & CBP institute politically-driven White Nationalist xenophobic enforcement initiatives.
USCIS was created as a separate agency under DHS specifically to allow service to the immigrant community to flourish without the subservience to law enforcement often present and institutionalized at the “Legacy INS.” However, this regime and its toadies in DHS “Management” have seen fit to recreate the very same conflicts of interest and enforcement dominance that USCIS was created to overcome. In most ways, things are far worse than they ever were at the “Legacy INS.” And, let’s remember that USCIS is funded largely by user fees collected from the public on the now largely fictional rationale that they are getting valuable and professionalized services. What a complete mess and abuse of public funding!
Moreover, given the BIA’s lousy performance, rather than assisting the Article III Courts, it now all too often falls to the Article IIIs to keep the BIA in line and do its job for it. But, given the wide disparity in interest levels, expertise, and integrity among the Article IIIs, the results have been spotty.
Some Article III Judges step up and do the job; others sweep the chronic problems under the table and look the other way as rights are trampled and service to the public mocked. And, no Article III to date has been courageous and scholarly enough to take on the real problem: the glaring unconstitutionality under the Due Process Clause of a so-called “court” controlled, staffed, and evaluated by a highly biased prosecutor empowered to reverse individual case outcomes that don’t match his political agenda!
A glimpse of future horrors to come: Emboldened by Article III complicity, and egged on by the White Nationalist nativists, EOIR now outrageously proposes to charge astronomically higher fees for its shabby, biased, and ever deteriorating “work product.” This is a transparent attempt to further restrict access to justice for the most vulnerable among us. Another clear denial of Due Process!
Yes, Congress is responsible. Yes, Congress is largely in failure. But, that doesn’t absolve the Article IIIs of their duty to the Constitution, the rule of law, and human decency. Will they finally wake up, act with some courage, and do their jobs? Or, will they engage in further “judicial task avoidance” until it’s too late for all of us?
“The overarching question in this case is whether the Board of Immigration Appeals applied its own standard of review correctly. After an immigration judge granted a waiver of inadmissibility and deferral of removal to Ahmed Shariif Kassim, the Board reversed both decisions. Kassim claims that, in doing so, the -2- Board improperly supplanted the immigration judge’s findings with its own. We grant the petition for review in part, deny it in part, and remand. … We instruct the Board to remand to the immigration judge for a finding on whether Kassim would more likely than not suffer torture in Somalia.”
[Hats off to Elizabeth G. Bentley of Jones Day! “Elizabeth served three clerkships, including to Justice Sonia Sotomayor of the U.S. Supreme Court, prior to joining Jones Day in 2018. She also practiced appellate litigation at a leading national firm and immediately following law school was a legal fellow for the Vera Institute of Justice in New York City, where she assisted the organization’s general counsel regarding issues of nonprofit law. During law school, Elizabeth participated in the Harvard Immigration and Refugee Clinic and was a teaching fellow for a law and social movements course.”]
Elizabeth G. “Betz” Bentley ESQUIRE Jones Day Minneapolis, MN
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Congrats, Betz, and thanks to you and Jones Day for taking this important case! Looking forward to more great things from you! Brilliant, committed lawyers like you in the “America’s Future Brigade” of the New Due Process Army are certainly the face of a coming, better American Justice System. You and your colleagues in the NDPA throughout America, working at all levels, will help usher in a “New Age” where Constitutional Due Process, fundamental fairness, and equal justice for all actually become realities for all persons in our nation!
And, as always, thanks to my friend Dan over at LexisNexis Immigration Community for passing this “good news” along.
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
The video at this link kindly furnished by the always amazing Dan Kowalski over at LexisNexis Immigration Community:
How totally screwed up, unconstitutional, and unethical is this current system under the Department of Justice (“DOJ”)?
As “punishment” for consistently speaking out for Constitutional Due Process and for the rights of EOIR employees to do their jobs safely, professionally, and free from political interference and pressure, the DOJ is seeking, on patently frivolous grounds previously rejected by the Federal Labor Relations Authority, to “decertify” the NAIJ to prevent Judge Tabaddor and other NAIJ officers from “speaking truth to power” and “blowing the whistle” on the mockery of justice unfolding daily in Immigration Courts across the country. We can’t let them get away with this outrageous and unlawful behavior.
Join the New Due Process Army (“NDPA”) today, and fight to make Due Process under law a realityfor all persons in the United States!
Due Process Forever! Captive Courts, Never! We Need Article I!
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round TableHon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)Laura Lynch Senior Policy Counsel AILAFanny Behar-Ostrow ESQ Assistant Chief Counsel, DHS President AFGE Local 511
From Dan Kowalski over @ LexisNexis Immigration Community:
More than 70 Organizations Call on DOJ to Immediately Close All Immigration Courts During the COVID-19 Pandemic
AILA Doc. No. 20032630 | Dated March 26, 2020 | File Size: 596 K
On March 26, 2020, more than 70 organizations joined AILA, the National Association of Immigration Judges (NAIJ), and the ICE Professionals Union, to call on the Department of Justice to immediately close all immigration courts during the COVID-19 pandemic.
RE: THE DOJ MUST IMMEDIATELY CLOSE ALL IMMIGRATION COURTS DURING THE COVID-19 PANDEMIC
Dear Attorney General Barr and Director McHenry,
Following previous calls by the National Association of Immigration Judges (NAIJ), the American Federation of Government Employees (AFGE) Local 511 (ICE Professionals Union), and the American Immigration Lawyers Association (AILA) for the temporary closure of all immigration courts, we, the undersigned international, national, state, and local immigration, civil rights, faith- based, government accountability, and labor organizations urge the U.S. Department of Justice (DOJ) to immediately close all 68 Immigration Courts operated by the Executive Office for Immigration Review (EOIR) in adherence with current public health protocols regarding the COVID-19 virus.
On the evening of March 17, EOIR postponed all non-detained hearings and recently postponed all of the Migrant Protection Protocol hearings (MPP) scheduled through April 22, 2020. However, more aggressive action is needed. While these policies are a step in the right direction, they fall far short of the required action called for by this pandemic emergency. The detained courts must also be closed to in-person hearings in order to minimize the spread of the virus, slow the rate of new infections, and to avoid overwhelming local resources.
Given the particular vulnerability of respondents in detained settings, the use of telework, which has been advocated by the Administration, can and should be quickly put in place. Immigration Judges stand ready and able to work to ensure priority matters, including detained bond matters, are addressed using technological tools. DOJ should permit all detained respondents to immediately receive telephonic bond redetermination hearings with teleworking judges and allow supporting documents to be faxed and emailed to a designated point of contact. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.
The urgency for immediate, decisive action in this matter cannot be overstated. Every link in the chain that brings individuals to the court – from the use of public transportation, to security lines, crowded elevators, cramped cubicle spaces of court staff, packed waiting room facilities in the courthouses, and inadequate sanitizing resources at the courts – place lives at risk.
AILA Doc. No. 20032630. (Posted 3/26/20)
Every state and the District of Columbia have declared a state of emergency giving government leaders the opportunity to implement bold and unprecedented measures to slow and eventually
eliminate the spread of the virus. Some officials are releasing prisoners, allowing them to shelter in place at home. Cities, county, and state governments have moved swiftly to implement stay at home orders to ensure the protection of community members from this highly communicable virus. These measures include the scaling back of mass transit conveyances to most urban centers where the immigration courts are located, creating significant logistical problems for anyone needing to access the courts. On March 21, the Department of Homeland Security (DHS) announced that it
will now require all legal visitors to provide and wear personal protective equipment (PPE) (disposable vinyl gloves, N-95 or surgical masks, and eye protection) in order to enter any
detention facility, despite the nationwide shortage of PPE.
Yet EOIR continues to operate courts in a business-as-usual manner, placing court personnel,
litigants, and all community members in harm’s way. To make matters worse, DOJ and EOIR decision-making has been opaque, with inadequate information being released, causing confusion
and leading to litigants showing up at hearings that are cancelled without notice.
DOJ’s current response to the COVID-19 pandemic and its spread is frighteningly disconnected from the realities of our communities, and the advice of local leaders and scientific experts. DOJ must immediately implement the temporary closure all immigration courts. Failing to take this action now will exacerbate a once-in-a-century public health crisis and lead to a greater loss
of life.
If you have any questions, please do not hesitate to contact Laura Lynch, Senior Policy Counsel, AILA (llynch@aila.org), Judge Ashley Tabaddor, President, NAIJ (ashleytabaddor@gmail.com), or Fanny Behar-Ostrow, President, AFGE Local 511 (fbehar1@gmail.com).
Sincerely,
Fanny Behar-Ostrow ESQ Assistant Chief Counsel, DHS President AFGE Local 511
Advocates for Basic Legal Equality, Inc.
America’s Voice
American Federation of Government Employees (AFGE) Local 511 American Immigration Council
American Immigration Lawyers Association (AILA)
Americans for Immigrant Justice, Inc.
Amnesty International USA
Arizona Coalition to End Sexual and Domestic Violence
Asian Pacific American Labor Alliance, AFL-CIO
Asian Pacific Institute on Gender-Based Violence
ASISTA
Association of Deportation Defense Attorneys, Inc.
Ayuda
Capital Area Immigrants’ Rights (CAIR) Coalition
Catholic Legal Immigration Network, Inc.
Center for Gender & Refugee Studies
AILA Doc. No. 20032630. (Posted 3/26/20)
Center for Victims of Torture
Central American Resource Center
Coalition for Humane Immigrant Rights (CHIRLA)
Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces End Domestic Abuse Wisconsin
Evangelical Lutheran Church in America
Federal Bar Association Immigration Law Section
*Disclaimer, this is the position of the Immigration Law Section and not the Federal Bar Association as a
whole.
Freedom Network USA
Government Accountability Project
Her Justice
HIAS
Human Rights First
Human Rights Initiative of North Texas
Illinois Coalition Against Domestic Violence
Immigrant Families Together
Immigration Equality
International Federation of Professional and Technical Engineers International Rescue Committee
InterReligious Task Force on Central America
Just Neighbors
Justice for Our Neighbors-Michigan
Las America’s Immigrant Advocacy Center
Latin America Working Group
Leadership Conference of Women Religious
League of United Latin American Citizens
Legal Aid Justice Center
Montana Coalition Against Domestic and Sexual Violence National Advocacy Center of the Sisters of the Good Shepherd National Association of Immigration Judges
National Council of Jewish Women
National Justice for Our Neighbors
National Latina Institute for Reproductive Justice
Nebraska Coalition to End Sexual and Domestic Violence Neighbors Immigration Clinic
NETWORK Lobby for Catholic Social Justice
New York Immigration Coalition
New York Justice for Our Neighbors
Northern Illinois Justice for Our Neighbors
Ohio Immigrant Alliance
Pax Christi USA
Restoration Immigration Legal Aid
Rian Immigrant Center
Round Table of Former Immigration Judges
Santa Fe Dreamers Project
Sisters of Mercy of the Americas Justice Team
AILA Doc. No. 20032630. (Posted 3/26/20)
South Texas Human Rights Center
Tennessee Justice for Our Neighbors
The Florence Immigrant & Refugee Rights Project
The Leadership Conference on Civil and Human Rights
Ujima Inc: The National Center on Violence Against Women in the Black Community Vermont Network Against Domestic and Sexual Violence
Virginia Coalition for Immigrant Rights
Virginia Coalition of Latino Organizations
Virginia Interfaith Center for Public Policy
Washington Office on Latin America
Washington State Coalition Against Domestic Violence
Wellspring United Church of Christ
Young Center for Immigrant Children’s Rights
AILA Doc. No. 20032630. (Posted 3/26/20)
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Pretty disturbingly graphic example of how little EOIR & the DOJ care about the health, safety, and welfare of their own employees, let alone the public they have long ceased serving!
Also appreciate the courageous leadership of AFGE Local 511 President and DHS Assistant Chief Counsel Fanny Behar-Ostrow in joining the effort to end the regime’s reckless insanity. An “Honorary Member” of the NDPA to be sure! Folks like Fanny, Ashley, Laura, Jeff, and Dan are among America’s unsung heroes! Thanks for all you do!
Due Process Forever! Political “Courts” Endangering Public Welfare & Safety, Never!
Mar. 11, 2020 letter from Sen. Elizabeth Warren and Sen. Edward Markey to EOIR Director McHenry:
“…We therefore urge EOIR to require the posting of the CDC signage, in English and Spanish, as well as any other relevant languages, in courtrooms and waiting areas to raise awareness of COVID-19 and how to avoid transmitting and contracting it. In addition, we request answers to the following questions by March 18, 2020:
Why were immigration judges and immigration court administrators instructed to remove the CDC COVID-19 posters? What “authority” did they purportedly lack to place the posters?
Who told Acting Chief Immigration Judge Christopher Santoro to issue the directive? Who in “leadership” was Judge Santoro referring to in his email regarding the posters?
Did EOIR consult with qualified public health authorities before issuing its directive to remove the posters?
Why was the directive reversed? Did negative publicity play any role in the decision?
What steps is EOIR taking to protect immigration judges, support staff, immigrants, attorneys, and the public from the spread ofCOVID-19? A. Are sick employees and members of the public being told to go home? B. Are cleaning and disinfectant supplies being provided to all employees and to members of the public who come to the courts?
How is EOIR coordinating with the rest of the Department of Justice about how to respond to COVID-19? Is it receiving guidance from any other federal agencies, such as CDC?
In light of the public health concerns posed by COVID-19, will EOIR instruct immigration judges to allow immigrant respondents the opportunity to reschedule immigration court proceedings as necessary?”
“… we call on you to suspend all non-detained master calendar dockets for the duration of this public health crisis. Immigration Judges can use cancelled master calendar time to hear individual cases (including addressing the backlog of hundreds of thousands of long-pending cases scheduled for individual hearing) that do not involve unwarranted exposure to large numbers of people in our space-limited facilities. …”
************************************
Thanks, Dan.
As the situation deteriorates, America’s mismanaged “Clown Courts” 🤡🤡 continue to endanger the public while denying due process and wasting taxpayer money by having no contingency plans in place and failing to issue clear guidance to either their own employees or the public.
But, let the record show that they have plenty of time to develop unneeded and counterproductive “Immigration Judge dashboards,” tie up the system with frivolous litigation to “decertify” the NAIJ, and set up “TV pilot programs” to railroad kids through the Atlanta Immigration Court. All enforcement-related “gimmicks;” no time for due process or the public interest.
But, the record should also document the dereliction of duty by Congress and the Article IIIs for allowing this “clown show” to continue to inflict damage on the American public and our legal system.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Elizabeth A. Wolford U.S. District Judge WDNY
Dan Kowalski over @ LexisNexis Immigration Community reports:
FW:due process victory: Hassoun v. Searls
“[T]he Court finds that 8 C.F.R. § 241.14(d) is not a permissible reading of § 1231(a)(6), and that it is accordingly a legal nullity that cannot authorize the ongoing, potentially indefinite detention of Petitioner. … The Court further finds that an evidentiary hearing is necessary before it can determine the lawfulness of Petitioner’s continued detention under 8 U.S.C. § 1226a.”
Note also the roasting, on page 11, of DOJ lawyers for failure to do basic 1L legal research: “To say the least, it is disappointing that Respondent’s counsel, after consulting with other counsel including “prosecutors and appellate attorneys” in this District’s United States Attorney’s office, submitted a legal memorandum to the Court that failed to acknowledge contrary case law that did not support its position.”
I hear and appreciate U.S District Judge (WDNY) Elizabeth A. Wolford’s outrage and frustration.
But, for hard working members of the New Due Process Army this is “just another day at the office” in dealing with the Trump Regime’s unethical, scofflaw, fact free White Nationalist nativist agenda: lies and pretexts presented to the Supremes to hide an intentional census undercount directed at reducing Hispanic voting and political power; false narratives about migrants and crime; a bogus largely self-created “border emergency;” fraudulent “national security” justifications; EOIR “administrative changes” intended to undermine the right to representation and eliminate due process; twisted unethical “precedents” entered by the chief prosecutor that always come out against the individuals; misogynist racist misinterpretations of asylum law intended to kill, maim, and torture vulnerable women of color; child abuse cloaked in disingenuous “law enforcement” rationales; bogus “civil detention” to punish lawful asylum seekers; a grotesquely dishonest “Migrant Protection Protocol” intended to subject migrants to deadly conditions in Mexico; “Safe” Third Countries that are among the most dangerous in the world without functioning asylum systems; irrational “public charge” regulations intended to reduce legal immigration without legislation; EOIR’s distorted statistics intentionally manipulated to minimize asylum grants and cover up the anti-asylum bias improperly infused into the system; vicious unsupported attacks on the private bar by the Attorney General and other regime politicos. The list goes on forever.
Unfortunately, this scofflaw and unethical behavior will continue until Federal Judges back up their words with actions: declarations of unconstitutionality; sanctions against the Government for frivolous litigation; removing political control over EOIR; referring Barr and other DOJ attorneys who are abusing the justice system to bar authorities for possible discipline.
“This ain’t your Momma’s or Papa’s DOJ!” (Or for that matter one that those of us who served in the recent past would recognize.) Its antecedents and “role models” are America’s vile, deadly, discredited Jim Crow era and 20th & 21st Century fascist regimes.
Time for Article III Judges to get out of their ivory towers, stop tiptoeing around Government corruption, dishonesty and misconduct, and start looking at things from the human perspective of the individuals and their courageous attorneys caught up in this legal, moral, and ethical quagmire and fighting not only for their own lives but for the future of our nation! There is and will be “only one right side of history” in this existential struggle!
Due Process Forever; The Corrupt White Nationalist Immigration Agenda Never!
This past Friday, the Department of Homeland Security’s random policy change deeming youths between the ages of 18 and 20 years old ineligible for special immigration protection ran into a brick wall in the form of the U.S. District Court for the Southern District of New York. In his decision in R.F.M. v. Nielsen, Judge John G. Koeltl held that DHS’s sudden policy shift denying Special Immigrant Juvenile Status (or SIJS, for short) to qualified youths over the age of 18, a group that it had previously approved under the same statute for nearly three decades, (1) was contrary to the plain language of the statute it claimed to interpret; (2) lacked a reasonable explanation, (3) was premised on an erroneous interpretation of state law, and (4) was not enacted with adequate notice, as required by the Administrative Procedures Act. For these reasons and more, Judge Koeltl concluded that the policy shift was arbitrary and capricious, in excess of statutory jurisdiction, and without observance of the procedure required by law. The judge further granted the plaintiffs’ motions for class certification and for summary judgment.
What exactly did DHS do to invoke such a strong judicial rebuke? SIJS was created by Congress in 1990 to provide a path to legal residence for immigrant youths who have suffered abuse, neglect, or abandonment. The statute defines juveniles eligible for such benefit as those under the age of 21, and applicants under that cut-off age were generally afforded such status. However, in early 2018, the present administration suddenly and without warning began denying applications involving applicants over the age of 18. Sounding very much like Herr Zeller in The Sound of Music claiming that “nothing in Austria has changed,” government counsel attempted to argue that there had been no change in policy, a claim that Judge Koeltl outright rejected in light of clear evidence to the contrary. As the L.A. TImes reported in January, the impact of the policy shift was magnified by another DHS policy directive to commence deportation proceedings against those whose applications for benefits are denied, an action that had previously rarely been taken against juvenile applicants.
What immediately struck me about the new DHS policy at the time of the shift was its position that the New York Family Court lacked jurisdiction over youths who had reached the age of 18 as a basis for denying the petitions. How could a federal agency feel it had the right to rule on a state court’s jurisdiction over a matter of state law? Of course, Judge Koeltl noted in his decision that in spite of a USCIS Policy Manual requiring the agency to rely on the state court’s expertise on such matters, and prohibiting the agency from reweighing the evidence itself or substituting its own interpretation of state law for that of the state court, DHS nevertheless did exactly that, substituting its own interpretation of New York law for that of the New York Family Court in arguing for that court’s lack of jurisdiction. Of course, DHS’s improper interpretation wasn’t even a correct one; with the judge finding that DHS’s conclusion “is based on a misunderstanding of New York State law.”
Just in case there was any doubt as to its bad faith, the Government even opposed the motion that the young Plaintiffs be allowed to proceed anonymously in the action, identified only by their initials. What possible reason other than harassment could DHS have in opposing such motion made by young plaintiffs who had suffered abuse or abandonment?
Not coincidentally, there has been a surge in SIJS-eligible youth arriving at the border in recent years, with most coming from the besieged Northern Triangle countries of El Salvador, Guatemala, and Honduras. Youths in those countries run a shockingly high risk of being targeted for domestic violence, forced gang recruitment, and other physical and psychological harm. These are children that we are talking about. Nevertheless, the Trump Administration has consistently targeted citizens of these countries, inaccurately labeling them as criminals and deriding the legitimacy of their motives for seeking refuge in this country. And, like pieces in a puzzle, the shift in SIJS policy is just one more way that the Trump Administration has created obstacles for a group it should be seeking to protect.
Hats off to the Legal Aid Society and the law firm of Latham and Watkins for their outstanding representation of the plaintiffs.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
Here’s a link to the “full text” of the case Jeffrey discusses, courtesy of our good friend Dan Kowalski over at ltl G. Koeltl
What about the DOJ attorneys who are defending these patently illegal actions in court, often without providing any rationale that would pass the “straight face test?” Why is it OK to present “pretextual” reasons for policies that publicly available information shows are actually based on bias, undue outside influence, ignoring facts, and sometime outright racism, and xenophobia? Why are DOJ attorneys and their supervisors, who are also members of the bar, allowed to operate in an “ethics free zone?”
Don’t expect any help from newly minted Trump sycophant AG Bill Barr. Despite his “Big Law Corporate Patina” and his bogus claim that he seeks to “restore confidence” in the DOJ, his first project is reputed to be a scurrilous Trump-type attack on Federal Judges issuing nationwide injunctions who are among those (the private, often pro bono, bar and NGOs being others) having the courage to stand up for the rule of law and our Constitution against the outrageous onslaughts of Trump, his cronies, and his team of disingenuous lawyers who seem to believe that they have been immunized from the normal rules of ethical and professional conduct.
No, Barr isn’t just a “conservative lawyer.” I actually worked for a number of very “conservative” lawyers both in and out of Government. While I didn’t always agree with their policies and their legal arguments (that wasn’t a job requirement), I did find them willing to listen and consider “other views” and occasionally be persuaded. Moreover, they all had a respect for both our legal system and the Constitution, as well as Federal Judges and those on “the other side” of issues that I find completely, and disturbingly lacking in the Trump Administration and its “ethnics free” legal team.
Not only are the efforts of the Trump Administration to “undo” provisions of our law that “work,” promote justice, and save lives illegal and immoral, they also are tying up rousources with frivolous and unnecessary litigation. What if all of that time and effort were put into solving problems and making our country better, rather than destroying it?
