⚖️🤯👩🏽‍⚖️👨🏻‍⚖️ AS GARLAND’S BACKLOG HITS 3 MILLION, WAY PAST TIME TO CLEAN HOUSE, 🧹 BRING IN COMPETENT EXPERTS, 🧐 & START IMPLEMENTING THE “MPI PLAN” FOR BACKLOG REDUCTION & DUE PROCESS! — Empower “The Magnificent Seven” To Take The Field & Bring Order From Chaos!

 

Amateur Night
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

https://trac.syr.edu/reports/734

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf

Executive Summary

The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.

For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely

to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.

Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.

While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.

Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals

page4image2846206864

2 million

cases in the backlog

About 650

immigration judges nationwide

Less than 500

cases completed per judge in most recent years

page4image2845099584

1

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.

Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.

Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.

Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at

the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.

EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.

The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.

Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as

The rate at which asylum claims are denied varies widely, from

1% with one judge to

page5image2955219344

100%

with another in FY 2017-22

page5image2948753808

2

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).

Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.

One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.

Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.

This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:

Strengthen the immigration court system’s management and efficiency

► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.

1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).

page6image2955637376

3

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.

  • ►  Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
  • ►  Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
  • ►  Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
  • ►  Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it

► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.

Upgrade how the courts use technology

► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.

Increase access to legal representation

► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.

4

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

  • ►  Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
    to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
  • ►  Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.

Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

page8image2847247216

The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

BOX 1
About the Rethinking U.S. Immigration Policy Project

This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.

The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.

To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.

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

Read the full report at the link.

Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”). 

It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.

Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”) 

Bring in these experts:

  • Judge (Retired) Dana Leigh Marks
  • Professor Stephen Yale-Loehr
  • Dean Kevin Johnson
  • Michelle Mendez (NIPNLG)
  • Professor Michele Pistone
  • Jason “The Asylumist” Dzubow
  • Wendy Young (KIND)

Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca”  — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!

This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”

This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!

🇺🇸 Due Process Forever!

PWS

12-19-23

🤯🤯🤯 BACK-TO-BACK TRIPLE HEADERS FROM COURTSIDE! — 1) ⚖️👩🏽‍⚖️ SUPREMES TAP TWO GROUPS OF IMMIGRATION CASES FOR OCT ‘23 DOCKET! 2) Garland’s DOJ Continues To Take Positions “Least Favorable To Due Process For Immigrants” Before High Court, Even As 3rd Cir. Slams BIA On Notice, An Issue Unnecessarily “Headed Up” For The 3rd Time!🤯 3) Dems’ Fecklessness On Courts Takes Center Stage! ☹️👎🏼

Kevin R. Johnson
Kevin R. Johnson
Dean
U.C. Davis Law

Dean Kevin Johnson reports from ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2023/07/photo-courtesy-of-us-supreme-court-the-2022-term-ended-last-week-but-there-already-are-new-immigration-cases-on-the-supr.html

The 2022 Term ended last week but there already are new immigration cases on the Supreme Court’s docket for the 2023 Term.

Law 360 reports that the Supreme Court on the last day of the 2022 Term agreed to review 1) if Board of Immigration Appeals decisions denying cancellation of removal for exceptional hardship are subject to judicial review and 2) consolidated cases on the sufficiency of notice in removal proceedings.

Here are the cases:

Wilkinson v. Garland

Issue: Whether an agency determination that the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i) (and not subject to judicial review).

Campos-Chaves v. Garland (consolidated with Garland v. Singh).

 

The Court continues to deal with the ripple effects of Pereira v. Sessions (2018), which addressed the sufficiency of notice in removal proceedings.

Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.

KJ

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

 

Aleksandra Gontaryuk
Aleksandra Gontaryuk ESQ
Managing Partner
AG Law
Newark, NJ
PHOTO: AG Law

From: Aleksandra Gontaryuk
Sent: Monday, July 3, 2023 4:29 PM
To: AILA New Jersey Chapter Distribution List <newjersey@lists.aila.org>
Subject: Precedential Decision — 3rd Circuit

 

https://www2.ca3.uscourts.gov/opinarch/212291p.pdf

Hot off the presses. No supplemental notice allowed to cure defective NTA unless there is a change or postponement of time and place in NTA. In this case, my client had a defective NTA, so 3rd Circuit ruled there can be no change or postponement from a defective NTA in the first place when DHS didn’t issue new NTA!! In absentia remanded.

[The case is Madrid-Mancia v. AG, available in full text at the above link.]

Aleksandra N. Gontaryuk, Esq.

AG Law Firm

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

Alfred E. Neumann
Actually, Dems need an AG who WILL WORRY about systematic denials of due process, fundamental fairness, and failure to install best-qualified progressives in the disastrously dysfunctional Immigration Courts! 
PHOTO: Wikipedia Commons

The notice issue presented by Campos-Chaves and Singh has been to the Supremes, albeit in different forms, twice before recently. The BIA/DOJ position has been emphatically “stuffed” by the Supremes both times! Yet, here we are again with the same backlog-enhancing, due-process-denying nonsense, this time from a Dem AG who was supposed to act like a “real” Federal Judge, not a “stooge” for DHS Enforcement.

The long and short of it is that this third trip to the Supremes on the notice issue was avoidable. That is,  if Garland had appointed immigration experts, individuals not afraid to enforce the statute even where it benefits the individual, as it often will if properly and fairly interpreted, to the BIA, long a hotbed of anti-immigrant interpretations of law. Garland continues to enable a system “packed” with anti-immigrant and anti-asylum judges promoted under Trump and largely retained by Garland. This should outrage all progressives!

Dems continue to fecklessly “wring their hands” about the sharp right turn of the Supremes and the lower Article IIIs and the predictable decimation of individual rights. It all occurred in plain sight and with plenty of advance warning from the GOP as Dems diddled away their chances to stop it. 

Dems aren’t going to be able to expand the Supremes, nor are term limits likely to happen. Both would require GOP support, which will not be forthcoming now that they have achieved their long-promised “takeover!” Discussing it is a waste of breath and brain cells. It also diverts attention from the Dems ongoing failure at EOIR.

The Dems best practical chance of reforming the Federal Courts would be to start “at the critical retail level” with what they control and could change tomorrow: The U.S.Immigration Courts housed (however improperly) in the DOJ. Right now they are an embarrassing mess of bad judging, anti-immigrant bias, worst practices, grotesque mismanagement, insurmountable backlogs, and hare-brained gimmicks. 

Every day, in this and other forums, we see inspiring examples of the type of extraordinary progressive, creative, courageous legal talent available “in the marketplace.” They are the ones Garland should be recruiting and putting on the EOIR bench at both appellate and trial levels.

We would get an immediate, long overdue, improvement in the quality and efficiency of justice at EOIR. Correct, scholarly precedents would have carry-over into other areas of law and even gain international traction.

And, Dems would be building a “long bench” of “tried and true” candidates for Article III positions in the process! Who knows if and when a chance like this will come again? Yet, Garland and the Dems are squandering it, damaging democracy and humanity in the process! Talk about turning a “win-win” into a “lose-lose!” It’s something that Dem politicos excel at!

Dems failure to institute progressive reforms and bring in expert progressive judges at the court they do control makes the rest of their pronouncements on Federal Court reform meaningless babbling! 

Tower of Babel
Dems “babble on” about Federal Court reform as GOP scores “real life” victories over individual rights and equity. It’s a waste of time, and “task avoidance” by Dems that diverts attention from the major Federal System they own 100% and operate (very badly): The U.S. Immigration Courts @ EOIR!   —   “Towel of Babel” By Pieter Bruegel The Elder
Public Domain

Pay no attention to Dems disingenuous complaints about the Supremes and “Trumpy” lower court judges until they demonstrate the ability and willingness to reform EOIR!

🇺🇸 Due Process Forever!

PWS

07-07-23

 

🇺🇸🦸🏽‍♀️🏆 NDPA LEADERBOARD: Professor Paulina Vera (GW Law) Joins Dean Kevin Johnson & Other Distinguished “Practical Scholars” On Hispanic National Bar Association (“HNBA”) National Task Force on Hispanic Law Faculty and Deans!

Paulina Vera
Paulina Vera
Professorial Lecturer in Law
GW Law

 

Paulina writes:

Excited to announce that I will be part of the Hispanic National Bar Association (HNBA) National Task Force on Hispanic Law Faculty and Deans! I am honored to be included in a group of Latine law professor giants, whom I have long admired. I look forward to continuing working on a personal passion of mine, which is diversifying the legal profession and legal academia. ¡Adelante!

Press release available here:

FOR IMMEDIATE RELEASE: April 24, 2023                  Contact: Communications@HNBA.com

 

The Hispanic National Bar Association Launches New Task Force on

Law Faculty and Deans

 

Washington, DC – The Hispanic National Bar Association (HNBA) announces the launch of the first-of-its-kind National Task Force on Hispanic Law Faculty and Deans, aimed at addressing the alarming lack of Hispanic/Latino representation among U.S. law school professors and administrators (including deans), as well as the shortage of professional development resources specifically for Hispanic/Latino professors, deans, and other administrators already in the legal academy.

According to the most recent ABA Profile of the Legal Profession, only 5.8% of lawyers in the U.S. are Hispanic/Latino, even though we constitute over 19% of the general population. The shortage of Hispanic/Latino lawyers across the nation mirrors the paucity of Hispanics in legal academia. Only 9 of the almost 200 deans of ABA-accredited law schools in the 50 states and the District of Columbia are Hispanic/Latino. Estimates have the percentage of full-time Hispanic/Latino law professors at only 5%.

Hispanic/Latino law professors and law school deans are leaders of the profession and play seminal roles in educating future generations of lawyers and law-related professionals. Legal educators are visible role models and mentors to young people aspiring to careers in law. In addition, Hispanic/Latino legal academics – like other legal academics – frequently are tapped for senior government appointments, judgeships, and other key roles in our democracy. The urgency of this initiative is heightened further by the U.S. Supreme Court’s looming affirmative action decision, which threatens to make the shortage of Hispanic/Latino law students, lawyers, and legal academics even worse.

HNBA President Mariana Bravo has appointed as Co-Chairs of the Task Force Raquel M. Matas and Anthony E. Varona. Raquel Matas is the former Associate Dean for Administration at the University of Miami School of Law and has served as HNBA’s National Law School Liaison. Anthony E. Varona is Dean and Professor at Seattle University School of Law, the first law school dean of Hispanic/Latino heritage of any law school in the Pacific Northwest of the United States. Varona was the first Hispanic/Latino dean at University of Miami School of Law, where he was appointed dean emeritus after the conclusion of his deanship.

President Bravo said, “An increase in the number of Hispanic/Latino law professors and law school deans will translate into an increase in law school enrollment by Hispanic and Latino/a students inspired by educators who hail from their same communities, share their backgrounds and struggles, and in many cases, share a bilingual heritage. The work of this Task Force is long overdue, and I am delighted that former Associate Dean Matas and Dean Varona, with many decades of distinguished nationally recognized service in legal education between them, will lead us in this important work.”

The Task Force will oversee the development of annual summer nationwide online workshops for prospective and existing Hispanic/Latino law faculty and law school deanship aspirants, through programs such as the Michael Olivas Summer Writing Institute and the GO LILA summer workshops, collaboration with other established workshops, and by organizing new initiatives to increase Hispanic and Latino/a diversity in the legal academy. The Task Force will plan in-person “how to become a law professor” workshops at the annual HNBA conferences, assist with matching law faculty and law dean aspirants with suitable mentors, support the professional development of and networking opportunities for currently appointed Hispanic/Latino law faculty, promote better data tracking by national accreditation and membership associations, and otherwise promote more Hispanic and Latino/a representation in the legal professoriate and decanal ranks.

In addition to Matas and Varona, the HNBA Task Force on Law Faculty and Deans will include as members nationally renowned legal education leaders, known for their dedication to diversifying the legal profession and the academy, including:

Dolores S. Atencio, Esq., Visiting Scholar, U. of Denver Latinx Center|Sturm College of Law

Steven Bender, Prof. & Assoc. Dean for Planning & Strategic Initiatives, Seattle U. School of Law

Kevin R. Johnson, Dean and Mabie-Apallas Prof. of Public Interest Law & Professor of Chicana/o Studies, UC Davis School of Law

José Roberto (Beto) Juárez, Jr., Dean & Prof., Nova Southeastern U. Broad College of Law

Jenny Martinez, Lang Prof. of Law and Dean, Stanford Law School

Margaret Montoya, Prof. Emerita of Law (and Medicine), U. of New Mexico

Jennifer Rosato Perea, Dean & Prof. of Law, DePaul U. College of Law

Hon. Jenny Rivera, Associate Judge, New York Court of Appeals

Ediberto Román, Prof. of Law, Florida International U. College of Law

Krista Contino Saumby, Esq., Assoc. Director of Career Dev., Elon University School of Law

Paulina Vera, Professorial Lecturer in Law, George Washington U. Law School

This Task Force shall operate as a Presidential Special Committee.

###

The Hispanic National Bar Association is an incorporated, not-for-profit, national membership association that represents the interests of over 78,000+ Hispanic attorneys, judges, law professors, legal assistants, law students, and legal professionals in the United States and its territories. Since 1972, the HNBA has acted as a force for positive change within the legal profession by creating opportunities for Hispanic lawyers and by helping generations of lawyers to succeed.

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

Congrats to Paulina, Dean Kevin Johnson, and all the other outstanding scholar/leaders named to this group. Another place where more diversity is long overdue is the Federal Bench. In particular, despite the disparate impact of Immigration Court decisions on Hispanic-American communities, they are underrepresented on the bench at EOIR.

As the awesome talent represented by this Task Force shows, it isn’t for lack of exceptionally well-qualified judicial candidates available in the private sector. It’s a recruiting and cultural problem at DOJ, along with severe credibility problems stemming from perceptions of overall hostility at EOIR to asylum seekers, other migrants, and their lawyers, often directed at Hispanics and other individuals of color. The “culture” at EOIR really can only be changed by getting on the “inside” — that means getting on the bench or into the EOIR supervisory structure. 

I have spoken to the Hispanic National Bar Association and urged private sector lawyers with immigration, human rights, civil rights, and due process expertise to apply for Immigration Judge vacancies. https://immigrationcourtside.com/2021/04/08/⚖️🗽🧑🏽‍⚖️camille-j-mackler-just-security-gets-it-how-come-judge-garland-the-biden-admini/

On a positive note, one of my fellow panelists on that occasion, Hon. Claudia Cubas, is now an Immigration Judge at the Hyattsville (MD) Immigration Court!

I look forward to Paulina and other NDPA superstars 🌟 like her joining Judge Cubas on the bench in the near future. Positive change requires working “at all levels” to pump due process, fundamental fairness, and decisional excellence into a broken justice system.

Under AG Garland, at least some semblance of a “merit-based” selection system, one that honors immigration representation and human rights experience, has taken hold at EOIR. Therefore, Immigration Judge positions are the ideal “entry level” for those seeking careers in the Federal Judiciary.

Also, the “hands on” experience with making difficult decisions at the critical “retail level” of American justice will be an asset in any career path. Every correct decision at EOIR is potentially life-changing and life-saving! There aren’t many other areas where you can say that! These decisions are far, far too important to individuals and to our nation’s future to be left to the “amateur night at the Bijou” aura that unfortunately (tragically) has permeated EOIR in recent years!

Very proud to say that Paulina is a “distinguished alum” of the “Legacy” Arlington Immigration Court Internship Program and a “charter member” of the NDPA! 😎⚖️🗽

🇺🇸 Due Process Forever!

PWS

04-26-23

⚠️☠️🤡🤯👎🏼 “CINOs” (“Courts In Name Only”) — Harvard Law Review Takes On Garland’s Dystopian Immigration “Courts!” — “This Note cuts through that noise to provide a list of reforms that are simpler and less controversial [than Article I], yet still impactful — reforms that the sitting President could implement immediately.”

Alfred E. Neumann
Apparently, due process, fundamental fairness, and racial justice for all persons in the U.S., even those who happen to be non-citizens, weren’t part of A.G. Merrick Garland’s Harvard Law education.
PHOTO: Wikipedia Commons

From Dean Kevin Johnson @ ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2023/01/courts-in-name-only-repairing-americas-immigration-adjudication-system-by-the-harvard-law-review.html

Wednesday, January 11, 2023

Courts in Name Only: Repairing America’s Immigration Adjudication System

By the Harvard Law Review

By Immigration Prof

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The esteemed Harvard Law Review does not publish much immigration scholarship.  A student note on the immigration court system may be of interest to blog readers.  The system long has been criticized and, last year, a bill was introduced in Congress that would have brought reform.

Courts in Name Only: Repairing America’s Immigration Adjudication System
By the Harvard Law Review
Noncitizens in the United States face innumerable obstacles, many of which have now become well known. But even the supposedly neutral court system in which noncitizens’ cases are adjudicated currently functions as an executive tool for removal. This Note argues that the current structure of the immigration adjudication system — and the resulting executive control over it — subjects Immigration Judges to a variety of conditions that, taken together, bias the entire system towards removal. It then surveys existing proposals for structural reform and proposes numerous possible intermediate reforms.

KJ

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Key recommendation from HLR article:

While waiting for Congress to act, however, the executive branch has the authority to implement several crucial reforms that would allow for noncitizens to have their cases heard in fairer proceedings overseen by IJs with true, independent adjudicatory power.

Good News for Harvard Law: Some bright, unidentified, Harvard Law students can cut through the BS and clearly state achievable reforms that could and should have been implemented by the Biden Administration without legislation.

Bad News for Harvard Law: Prominent graduate and Law Review “alum” AG Merrick Garland (‘77), once a step away from a seat on the Supremes, doesn’t “get” it and, in fact, his poor leadership and mis-management are key parts of the problems at EOIR that threaten the stability and credibility of the entire U.S. justice system.

Note to HLR: Follow your own advice to “cut through the noise” and reform yourself. Lose the “historical BS,” move into the 21st century, show some intellectual integrity, and set a better example by clearly identifying and crediting the authorship of this and other student articles, whether by individual(s) or a team. See, e,g., Authorship: Giving Credit Where It’s Due, https://www.apa.org/pubs/journals/resources/publishing-tips/giving-credit

It’s not “rocket science!” 🚀 It’s just “Legal & Intellectual Ethics 101” (not to mention standard professional courtesy). As a former judge, albeit only one in the CINOs, I gave little weight to quotations and citations to anonymous or unidentified sources.

🇺🇸Due Process Forever!

PWS

01-13-23

☠️⚰️💀GARLAND’S STAR CHAMBERS — “SLOW VIOLENCE” ON PEOPLE OF COLOR!🥵— Bias, Bad Law, Bungling Bureaucracy! — “Where Due Process Goes To Die!” 🤮 — Upcoming Book Will Expose Garland’s Lawless, Cruel, Inhumane “Court” System!

 

Slow Injustice @ EOIR
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable!
The Wasp 1882-01-06 cover Slow but sure.jpg
Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man.
George Frederick Keller
Public domain

Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:

https://lawprofessors.typepad.com/immigration/2022/10/from-the-bookshelves-the-slow-violence-of-immigration-court-procedural-justice-on-trial-by-maya-pagn.html

Friday, October 21, 2022

From the Bookshelves: The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak

By Immigration Prof

The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak (forthcominng March 2023, NYU Press)

The publisher’s description of the book reads as follows:

“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.

Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”

KJ

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The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system! 

That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.

They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!

Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,

Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:

Maya Barak, Ph.D.

Associate Professor of Criminal Justice Studies

Maya P. Barak
Maya P. Barak, PhD
Assistant Professor of Criminal Justice Studies
U. of Michigan -Dearborn
PHOTO: UM-D Websitew

College of Arts, Sciences, and Letters

College-Wide Programs

mbarak@umich.edu

1070 Social Sciences Building | 4901 Evergreen Road | Dearborn, MI 48128

Personal Website

Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies

Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime

Biography and Education

I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.

Education

Ph.D. in Justice, Law and Criminology

Teaching and Research

Courses Taught

Selected Publications

Books

Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.

Selected Articles

Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).

Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.

Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)

Barak, Maya, Leon, K., and Maguire, Edward. 2020. “Conceptual and Empirical Obstacles in Defining MS-13: Law-Enforcement Perspectives.” Criminology and Public Policy (https://onlinelibrary.wiley.com/doi/10.1111/1745-9133.12493).

Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.

Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!

What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!

Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”

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

🇺🇸Due Process Forever!

PWS

10-22-22

🧑‍⚖️NAIJ PREZ JUDGE MIMI TSANKOV IN THE SPOTLIGHT!

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

Dean Kevin Johnson reports on ImmigrationProf Blog:

Thursday, June 2, 2022

Interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges

By Immigration Prof

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Check out this Federal Bar Association interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges. She explains on how she was drawn to a career in immigration law.  Earlier this year, Judge Tsankov testified before Congress about the immigration court system backlog, necessary reforms, and related topics.

Here is an ABA panel discussion led by Tsankov on judicial independence.

 

ABA ROLI & CHR

586 subscribers

ABA NGO CSW66 Panel One: Judicial Independence and Women Lawyers and Judges

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Judge Mimi Tsankov is “living proof” that there are leaders currently at EOIR with good ideas and a dynamic vision who could lead a due process/best practices reform effort. The question is why Garland and his lieutenants haven’t paid attention to them!

🇺🇸Due Process Forever!

PWS

06-03-22

⚖️🇺🇸🙏🏽READ DEAN KEVIN JOHNSON’S MOVING OBIT FOR ACADEMIC GIANT PROFESSOR MICHAEL OLIVAS, U. OF HOUSTON LAW (EMERITUS)

 

https://lawprofessors.typepad.com/immigration/2022/04/rip-michael-olivas-scholar-immigration-and-much-more-mentor-friend-and-colleague.html

Friday, April 22, 2022

RIP Michael Olivas: Scholar (Immigration and Much More), Mentor, Friend, and Colleague

By Immigration Prof

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I learned earlier today that we had lost a great one, my friend, colleague, and mentor Michael Olivas.  It is with a profound sense of loss that I reflect on how much he has meant to me personally (including to my family, who he always asked about individually by name) as well as professionally.  Michael followed by son Tomas’s Little League baseball career and asked for annual updates at the annual meeting of the Association of American Law Schools, mentored me through tenure, and helped me land the deanship at UC Davis (by calling the Chancellor and putting in a good word).

 

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Michael was a wonderful scholar, including but not limited to immigration law.  He once was this blog’s Immigration Professor of the Year.  The book Law Professor and Accidental Historian:  The Scholarship of Michael A. Olivas(Editor Ediberto Román, 2017) brought together a group of scholars to analyze Michael’s path-breaking scholarship.  The publisher encapsulates the anthology as follows:

Law Professor and Accidental Historian is a timely and important reader addressing many of the most hotly debated domestic policy issues of our times—immigration policy, education law, and diversity. Specifically, this book examines the works of one of the country’s leading scholars—Professor Michael A. Olivas. Many of the academy’s most respected immigration, civil rights, legal history, and education law scholars agreed to partake in this important venture, and have contributed provocative and exquisite chapters covering these cutting-edge issues. Each chapter interestingly demonstrates that Olivas’s works are not only thoughtful, brilliantly written, and thoroughly researched, but almost every Olivas article examined has an uncanny ability to predict issues that policy-makers failed to consider. Indeed, in several examples, the book highlights ongoing societal struggles on issues Professor Olivas had warned of long before they came into being. Perhaps with this book, our nation’s policy-makers will more readily read and listen closely to Olivas’s sagacious advice and prophetic predictions.” (bold added).

In an introduction to Accidental Historian, I offered some thoughts on how much Michael had done for so many, myself included.  Here is that intro.  Download Law Professor and Accidental Historian

Michael also worked for change.  At great personal cost, he created the “Dirty Dozen” law schools without a Latina/o on the faculty.  Michael recruited many Latina/os into legal academia.  He mentored, advised, read drafts of articles, and much more for countless professors of color (myself included).  Among many other service activities, Olivas helped lead an effort to file an amicus curiae brief on behalf of immigration law professors in the Supreme Court in the Deferred Action for Childhood Arrivals (DACA) case.  As he was in that case, Olivas in my view was  on the right side of the trajectory of history.

 

The University of Houston Law Center

1.27K subscribers

Professor Michael A. Olivas Tribute Video

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There no doubt will be many stirring tributes to Professor Michael Olivas in coming days.  Many will miss him immensely.  I sure will miss my guiding light and guardian angel.  RIP Michael Olivas.

KJ

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Thanks, Kevin. Here’s more on Michael and his remarkable life and career:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/another-giant-falls-prof-michael-a-olivas-r-i-p

RIP and Due Process Forever!🇺🇸

PWS

04-24-22

⚖️👍🏼🗽🍾CONGRATS TO NDPA SUPERSTAR ASSOCIATE PROVOST FOR INTERNATIONAL AFFAIRS LAILA HLASS OF TULANE LAW ON BRODYAGA AWARD 🏆 & NEW ARTICLE 📖✍️!

Professor Laila L. Hlass
Associate Provost/Co-Director of the Immigration Clinic/Professor of the Practice Laila L. Hlass
Tulane Law

Laila, my friend, everywhere I look you’re making news! Here’s Dan Kowalski @ LexisNexis on Layla’s well-deserved Lisa Brodyaga Award from the National Immigration Project:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/tulane-law-prof-laila-l-hlass-wins-2022-nip-brodyaga-award

Laila was also in the headlines in a report from Dean Kevin Johnson over at ImmigrationProf Blog designating her latest scholarship as the “Immigration Article of the Day:” Lawyering from a Deportation Abolition Ethic by Laila Hlass, 110 California Law Review (Forthcoming Oct. 2022):

https://lawprofessors.typepad.com/immigration/2022/04/immigration-article-of-the-day-lawyering-from-a-deportation-abolition-ethic-by-laila-hlass.html

Laila was a “guest lecturer” in my Refugee Law and Policy class during her time as a Fellow at the CALS Asylum Clinic at Georgetown Law. Since then, I have “returned the favor” by traveling to Tulane Law, both virtually and in person, to speak to Laila’s class and other immigration events. Laila has been recognized for “putting Tulane Law on the map” for innovative practical scholarship in immigration and international human rights and excellence in clinical teaching. No wonder she carries a “string of titles” at Tulane Law!

Laila is also one of many exciting examples of how clinical immigration and human rights professors have not only moved into the “academic mainstream” at major American law schools, but have been recognized as leaders and innovators by the larger academic communities in which they serve. Immigration law teaching has come a long way since the late INS General Counsel Charlie Gordon’s Immigration Law Class at Georgetown was the “only game in town.” (Historical trivia note: My good friend the late BIA Judge Lauri Filppu and I “aced” Charlie’s class in 1974, thus “besting” our then-supervisor at the BIA. That could have been a “career limiting” move. But, we both ended up on the “Schmidt Board” in the 1990s.)

Many congrats, Laila, on an already amazing career with even more achievements and recognition in your future. Thanks for being such a brilliant, inspiring, and dynamic role model for the New Due Process Army!

🇺🇸Due Process Forever!

PWS

04-15-22

⚖️ THE GIBSON REPORT — 03-14-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney NIJC — My Take: Whither Ukrainian Refugees?

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”
Ukraine
How much of Ukraine will look like this by war’s end?
Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski
Creative Commons License

 

 

 

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Weekly Briefing

briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • PRACTICE ALERTS
  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

PRACTICE ALERTS

 

Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.

 

Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.

 

ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.

 

TOP NEWS

 

Senate Democrats ‘deeply disappointed’ in Biden administration’s decision to keep Trump-era rule

Hill: The senators said that although the administration “made the right choice to prevent unaccompanied children from being expelled” in its recent announcement, “it is wrong that they made the decision to continue sending families with minor children back to persecution and torture.” See also U.S. leaning toward ending COVID-era expulsions of migrants at Mexico border – sources; The Biden Administration Has Been Planning To Tell Mexico That A Trump-Era Policy Could Soon End And Attract More Immigrants To The Border.

 

Democrats, Republicans struggle to compromise on border, immigration funds

Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.

 

ICE report shows sharp drop in deportations, immigration arrests under Biden

WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.

 

Biden Administration Fights in Court to Uphold Some Trump-Era Immigration Policies

NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.

 

Even Before War, Thousands Were Fleeing Russia for the U.S.

NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.

 

Backlogs force Ukrainians to face long visa waits

RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.

 

‘Constantly afraid’: immigrants on life under the US government’s eye

Guardian: Participants in the privately run Isap program, billed as an alternative to detention, describe painful ankle monitors and contradictory rules. See also DHS Taps Church World Service For Detention Alternatives.

 

82,645 Appeals Pending At The BIA

LexisNexis: As of Jan. 19, 2022 there are 82,645 appeals pending at the BIA.

 

Florida OKs bill aimed at keeping immigrants out of state

AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.

 

Coast Guard has returned to Haiti most of the 356 Haitians who arrived in Keys this week

Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.

 

2020 Census Undercounted Hispanic, Black and Native American Residents

NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.

 

ICE Conducted Sweeping Surveillance Of Money Transfers Sent To And From The US, A Senator Says

Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.

 

U.S. International Student Enrollment Dropped As Canada’s Soared

Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”

 

LITIGATION & AGENCY UPDATES

 

High Court Told Self-Removal Ruling Creates Circuit Split

Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.

 

CA2 Revives Asylum Bid Due To Faulty Credibility Ruling

Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.

 

CA4 Denies Reh. En Banc In Pugin V. Garland (Obstruction Of Justice)

LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.

 

CA5 On Stop-Time, Niz-Chavez: Gregorio-Osorio V. Garland

LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.

 

CA7 On BIA Abuse Of Discretion: Oluwajana V. Garland

LexisNexis: The  Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.

 

CA9 Judge Pans State-US Law Mismatch In Rape Case

Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.

 

Matter of M-M-A-, 28 I&N Dec. 494 (BIA 2022)

BIA: When  the  Department  of  Homeland  Security  raises  the  mandatory  bar  for  filing  a  frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.

 

Unpub. BIA Equitable Tolling Victory: Matter Of Siahaan

LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”

 

Ill. Judge Tweaks Order To Satisfy DOJ’s Funding Appeal

Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.

 

Affidavit Of Support Enforcement Victory: Flores V. Flores

LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.

 

ICE To Loosen NY Detainee Bond Rules Under Settlement

Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.

 

Judge Orders Feds To Release Names In Asylum Project

Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.

 

Court Tosses Immigrant Spouse’s Stimulus Check Challenge

Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.

 

USCIS to Offer Deferred Action for Special Immigrant Juveniles

USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.

 

DOS Provides Guidance for Ukraine Nationals

AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.

 

EOIR Updates Procedure for Requesting ROPs in Part I of the Policy Manual

AILA: EOIR updated procedures for parties to request ROPs in chapters 1.5(d) and 2.2(b) in Part I of the policy manual.

 

EOIR Updates Appendix O of the Policy Manual with Adjournment Code 74

AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”

 

RESOURCES

 

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GENERAL RESOURCES

 

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Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

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

Thanks, Liz!

The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.

My Take: Ukrainian Refugees & The U.S. Response

So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.

That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.

For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?  

As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.  https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html

Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.

Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.

Here’s more on the differing receptions between Ukrainian refugees and refugees from Latin America from Dean Kevin Johnson over at ImmigrationProf Bloghttps://lawprofessors.typepad.com/immigration/2022/03/the-long-history-of-the-us-immigration-crisis-compare-the-global-embrace-of-ukrainian-refugees-and-t.html

Also, as usual in refugee situations, women and children in Ukraine have paid the highest price, according to the UN.  https://www.huffpost.com/entry/un-women-pay-highest-price-in-conflict_n_62304567e4b0b6282027aa6a

But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.

And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?

The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed. 

Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.

Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?

We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements. 

Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law) to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all. 

Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.

I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!

🇺🇸Due Process Forever!

PWS

03-15-22

🗽⚖️ “COURTSIDE” IN THE NEWS: BOTH NOLAN @ THE HILL & KEVIN @ IMMIGRATIONPROF BLOG HIGHLIGHT MY BLISTERING ANALYSIS OF BIDEN’S FIRST-YEAR IMMIGRATION POLICIES! — Garland’s Monumental EOIR Fail Writ Large Among “Underreported News” Of 2021 — Mishandling Of Immigration Courts Creates Key “Enthusiasm Gap” Among Progressives Heading Into 2022 Midterms!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill
Kevin R. Johnson
Kevin R. Johnson
Dean
U.C. Davis Law

https://thehill.com/opinion/immigration/587347-has-biden-kept-his-immigration-promises

Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?

Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”

Predictably, nobody is pleased.

pastedGraphic.png

The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too.

. . . .

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

https://lawprofessors.typepad.com/immigration/2021/12/has-biden-kept-his-immigration-promises.html

Nolan Rappaport for the Hill reports that Paul Schmidt, former chair of the Board of Immigration Appeals who now blogs at Immigration Courtside, does not think that President Biden has done enough on immigration.  Schmidt claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”

KJ

December 27, 2021 in Current Affairs | Permalink | Comments (0)

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

Thanks, guys! As I have told both of you, I really appreciate the huge contributions you have made to informing the public about this all-important, yet often misunderstood or “mythologized,” issue!

Following up on my last thought, I urge everyone to view this recent clip from “Face the Nation,” posted by Kevin on ImmigrationProf, in which reporter Ed O’Keefe succinctly and cogently explains how immigration is the “most underreported issue of 2021.” It’s fundamental to everything from COVID, to the economy, to voting rights, to racial justice, to climate change, to our position in the world. 

https://lawprofessors.typepad.com/immigration/2021/12/the-most-neglected-story-of-2021-immigration.html

And, I say that the absolute dysfunctional mess that Garland has presided over in his  broken and jaw-droppingly backlogged Immigration Courts is the most widely ignored, misunderstood, mishandled, and under-appreciated part of this under-reporting!

As an example of how even “mainstream liberal progressive pundits” get it wrong by not focusing on the spectacular adverse effects of Garland’s botched handling of the Immigration Courts, check out this article by Mark Joseph Stern over at Slate. https://apple.news/AvmEJc5V0RXa8hCgKICcTOA

Mark Joseph Stern
Overlooking Garland’s disastrous mis-handling of his “wholly owned” U.S. Immigration Courts and the unparalleled “missed opportunity” to put more brilliant progressive judges on the Federal Bench is an all too common “blind spot” for progressive pundits.  Mark Joseph Stern
Reporter, Slate

 

Stern does a “victory lap” over Biden’s 40 great Article III judicial appointments to the lower Federal Courts, closing with the astounding claim that: “Democrats are finally playing hardball with the courts.”

In truth, Dems are only belatedly starting to do what the GOP has been doing over four decades: Get your guys in the positions where they make a difference for better (Dems, in theory) or worse (GOP in practice).

Appointing a diverse, talented, progressive group of 40 out of 870 Article III Judges is an important, necessary, and long, long overdue start; but, it’s not going to make a cosmic difference overnight!

By contrast, there are about 550 Immigration Judges, the majority appointed by GOP restrictionist AGs, many with mediocre to totally inadequate credentials for the job. And, it shows in the consistently substandard performance and mistake-riddled, haphazard “jurisprudence” emanating from Garland’s EOIR.

The main qualifications for a number of these pedestrian to totally outrageous appointments appears to be willingness to carry out former GOP AGs’ restrictionist, nativist policies, or at least to adhere to the DOJ’s enforcement-oriented agenda, while ignoring, distinguishing, or downplaying the due process rights of migrants!

This is “complimented” by an appellate branch (the BIA) with about two dozen judges hand-selected or retained for notorious anti-immigrant records or willingness to “go along to get along” with the wishes of DHS Enforcement. The BIA turns out some truly horrible, almost invariably regressive, “precedents.” A number are so lacking in substance and coherent analysis that they are unceremoniously “stomped” by the Article IIIs despite limitations on judicial review and the travesty of so-called “Chevron deference” that serves as a grotesque example of Supremes-created “judicial task avoidance” by the Article IIIs.

From an informed Dem progressive perspective, it’s an infuriating, ongoing, unmitigated disaster! Only one BIA appellate judge, recently appointed “progressive practical scholar” Judge Andrea Saenz, would appear on any expert’s list of the “best and brightest” progressive legal minds in the field.

Unlike Article III Judges, who are life-tenured, EOIR Judges serve at the pleasure and discretion of the Attorney General and can be replaced and reassigned, including to non-quasi-judicial attorney positions, “at will.” 

Starting with Attorney General John Ashcroft’s notorious “BIA Purge of ‘03,” GOP AGs haven’t hesitated to remove, transfer, “force out,” marginalize, demoralize, discourage from applying, or simply not select EOIR judges who stood for due process and immigrants’ rights in the face of nativist/restrictionist political agendas.

Yet, for eight years of the Obama Administration and now a year into the Biden Administration, Dem AGs have lacked the guts, awareness, and vision to fight back by “de-weaponizing” the regressive GOP-constructed Immigration Judiciary and recruiting replacements from among the “best and the brightest” among the “deep pool” of expert, intellectually fearless “progressive practical scholars.”

Not only that, but Dems have totally blown a unique opportunity to remake and establish the Immigration Judiciary not only as “America’s best judiciary” — a model for better Article IIIs — but also as a training ground for the diverse progressive judiciary of the future! 

Even more significantly, tens of thousands of lives that should have been saved by an expert, due-process-oriented, racially sensitive judiciary have been, and continue to be, sacrificed on the alter of GOP nativism and Dem indifference to quality judging and human suffering in the Immigration Courts!

Compare the diverse, progressive backgrounds and qualifications of “Stern’s 40” with those on the totally underwhelming list of the most recent Garland “giveaways” of precious, life-determining Immigration Judge positions! See, e.g., https://www.justice.gov/eoir/page/file/1457171/download

Compare Garland’s regressive BIA with what could and should be if progressive practical scholars were “given their due:”https://immigrationcourtside.com/2021/12/18/⚖%EF%B8%8F🗽🇺🇸courts-justice-courtside-proudly-announces-the-dream-bia-its-out-there-even-if-garland/

The progressive talent is definitely out there to change the trajectory of the Immigration Courts for the better! Garland’s failure to inspire, recruit, appoint, and tout the “best and brightest” in American law for his Immigration Courts is a horrible “whiff” with disturbing national and international implications!

Article III Federal Courts deal with the mundane as well as the profound. By contrast, lives and futures are on the line in every single Immigration Court case! Often effective judicial review of EOIR’s haphazard, widely inconsistent, unprincipled, and one-sided decisions is unavailable, either as a legal or practical matter. The exceptionally poor performance of the Immigration Courts that continues under Garland threatens the underpinnings of our entire justice system and American democracy!

Right now, Garland’s broken system has a largely self-created 1.5+ million case ever-expanding backlog! At a very conservative estimate of four family members, co-workers, employees, employers, students, co-religionists, neighbors, and community members whose lives are intertwined with each of those stuck in Garland’s hopelessly broken, biased, and deficient system, at least 6 million American lives hang in the balance — twisting in the wind among Garland’s “backlog on steroids!” Yet, amazingly, it’s “below the radar screen” of Stern and other leading progressive voices!

I doubt that any Federal Court in America, with the possible exception of the Supremes, holds as many human lives and futures in its hands. Not to mention that “dehumanization” and “Dred Scottification” of the other in Immigration Court drifts over into the Article III Courts on a regular basis. Once you start viewing one group of humans as “less than persons” under the Constitution, it’s easy to add others to the “de-personification” process.

Yet, Garland cavalierly treats the Immigration Courts as just another mundane piece of his reeling bureaucratic mess at the DOJ. The long overdue and completely justified “housecleaning” at Trump’s anti-democracy insurrectionist regime seems far from Garland’s serenely detached mind!

For Pete’s sake, even ICE Special Agents understand the need to “rebrand” themselves by escaping the inept and disreputable ICE bureaucracy left over from Trump:

They say their affiliation with ICE’s immigration enforcement role is endangering their personal safety, stifling their partnerships with other agencies and scaring away crime victims, according to a copy of the report provided to The Washington Post.

https://www.washingtonpost.com/national-security/hsi-ice-split/2021/12/28/85dc6c66-61ad-11ec-8ce3-9454d0b46d42_story.html

But, Garland doesn’t understand the well-deserved toxic reputation of EOIR among legal experts? Gimme a break!

Garland also stands accountable for his spineless failure to insist on a dismantling of the bogus, illegal, immoral, and ultimately ineffectual Title 42 abomination at the Southern Border and an immediate return to the rule of law for asylum seekers.

Unless and until the Dems get serious about gutsy, radical progressive reforms of the Immigration Courts, the downward spiral of American justice will continue! Lives will be lost, and many of those who helped put Dems in power will be pissed off and “de-motivated” going into the midterms. That’s a really bad plan for Dems and for America’s future! 

As Dems’ hopes of achieving meaningful Article III judicial reforms predictably are stymied, their inexcusable failure to reform and improve the Immigraton Courts that belong to them becomes a gargantuan, totally unnecessary “missed opportunity!” Talk about “unforced error!” See, e.g., https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/

If Dems suffer an “enthusiasm gap” among their key progressive base going into the key 2022 midterms, they need look no further than Garland’s tone-deaf and inept failure to bring long overdue and readily achievable progressive personnel, procedural, management, and substantive reforms to his dysfunctional Immigration Courts. That — not a false sense of achievement — should have been the “headliner” for Stern and other progressive voices!

Amateur Night
“Expedience over excellence, enforcement over equity, gimmicks over innovation is good enough for Government work!” — The “vision” for Garland’s EOIR! But, progressive experts aren’t buying his “tunnel vision.”
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

🇺🇸Due Process Forever!

PWS

12-29-21

 

☹️OFTEN INDIFFERENT OR OVERTLY HOSTILE TO THE CONSTITUTIONAL & HUMAN RIGHTS OF MIGRANTS & WOMEN, SUPREMES’ MAJORITY MIGHT GREEN-LIGHT “OPEN SEASON ON HUMANITY” FOR CBP AGENTS!☠️

Lydia Wheeler
Lydia Wheeler
Journalist, Opening Argument
Bloomberg Law
PHOTO:Twitter

Lydia Wheeler writes for Bloomberg Law’s Opening Argument:

https://openingargument.substack.com/p/kings-and-queens-of-border-puzzle

‘Kings and Queens’ of Border Puzzle Courts Divided on Liability

pastedGraphic.png Lydia Wheeler

Welcome back to Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. On tap today: a look at when border patrol agents can be sued for violating someone’s constitutional rights.

Border patrol agents allegedly took Anas Elhady’s coat and shoes, and held him in a near-freezing cell without a blanket after he legally crossed the border back into the U.S. from Canada. Robert Boule was allegedly shoved to the ground by a border patrol agent who came onto his property without a warrant to check the immigration status of a guest at the inn Boule owns in Washington.

Can they each sue the agents for damages? The answer right now depends on which court is hearing their case.

The Supreme Court is expected to provide more clarity in a case it’s hearing later this term. Depending on how the justices rule, it could further insulate border patrol agents from liability.

If there’s no way to hold individual agents accountable for their conduct at the border, “then custom agents are kings and queens unto themselves,” said Elhady’s attorney Gadeir Abbas, a senior litigation attorney at the Council on American-Islamic Relations.

A 1971 Supreme Court decision gave people the right to hold federal officials liable when their constitutional rights are violated, but courts have been trying to figure out if or when that applies to immigration officials. So far, they’re coming to different conclusions.

The U.S. Court of Appeals for the Sixth Circuit said Elhady, who claimed his detainment violated his Fifth Amendment right to due process, didn’t have a right to sue the agents involved. The Ninth Circuit said Boule did.

. . . .

But the Supreme Court specifically refused to consider whether Bivens should be overruled when it agreed to hear the agent’s appeal in the Boule case. The justices will instead decide if you can bring a suit under Bivens for a First Amendment retaliation claim and whether you can sue federal officers engaged in immigration-related functions for allegedly violating your Fourth Amendment rights. Oral arguments in the case haven’t yet been scheduled.

“I could imagine a Supreme Court, in an opinion by Justice Alito saying something like ‘Yes Bivens still is the law, but we find that in this case involving enforcement of the immigration laws, Bivens claims really don’t fit and don’t belong, and limit Bivens one step further and say immigration cases are different,” said Kevin Johnson, the dean of University of California Davis School of Law.

If the court does that, Johnson, who’s written extensively on immigration law and civil rights, said it would embolden border patrol agents to feel like they can act with a great deal of discretion that will never be questioned.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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

Read Lydia’s full report at the link.

Hard to argue with the analysis of Dean Kevin Johnson, the “most often cited” immigration scholar in America according to a recent survey. 

Kevin R. Johnson
Kevin R. Johnson
Dean
U.C. Davis Law, “Most Cited Immigration Practical Scholar”

The rampant abuses of legal and human rights by the CBP, systemic racial bias, and almost total lack of accountability have been well-documented by civil rights advocates.  See, e.g., https://www.southernborder.org/border_lens_abuse_of_power_and_its_consequences

Here’s a telling excerpt from the foregoing report issued by the SPLC in 2020:

The number of deaths resulting from an interaction with CBP officers are indicators of the horrific culture of abuse, corruption, and disregard for human life that plagues the nation’s largest federal law enforcement agency. Unfortunately, these killings are not the only examples of abuse of power and corruption within CBP.

Numerous studies — both internal and external — have shown that CBP is plagued with a culture of impunity, corruption, and abuse. Its systemic problems also run deep. The discovery of a secret Facebook group full of racist, misogynist and xenophobic posts by Border Patrol agents brought to light more evidence of the agency’s culture of abuse. In it, agents routinely made sexist jokes, made fun of migrant deaths, and shared other hateful content. A year later, little action was taken by CBP, again pointing to the lack of transparency and accountability for the agency. Countless other reports have linked CBP to cases of officer misconduct, corruption and a general lack of accountability for criminal conduct and abusive actions.

Doesn’t sound to me like an ideal candidate for freedom from individual constitutional tort liability! Indeed, the reasons for applying Bivens to immigration agents appear quite compelling. Hard to think of a law enforcement agency more in need of “strict scrutiny.”

But, with the current Court majority, who knows? Kevin’s “highly educated guess” is as good or better than anyone else’s. After all, the Supreme’s majority had little difficulty enabling constitutional and human rights abuses carried out by the Trump regime on asylum seekers and other vulnerable migrants — in other words, “Dred Scottification” of the “other!”

Valerie Bauman
Valerie Bauman
Investigative Reporter
Bloomberg
PHOTO: Twitter

Many thanks to Val Bauman over at Bloomberg for bringing this article to my attention. I’ve missed Val’s lively and incisive reporting on the “immigration beat” for her previous employer. Come on back to immigration, Val! We miss you!

🇺🇸Due Process Forever!

PWS

12-14-21

IMMIGRATIONPROF BLOG: Law Student Essay Captures Essence Of Problem In Immigration Courts: “Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period.”  Structural Problems, Indefensible Personnel Decisions, Byzantine Bureaucracy Continue To Plague Garland’s Broken Courts!☠️

 

https://lawprofessors.typepad.com/immigration/2021/10/good-judge-bad-judge.html

Guest blogger: Kelsea Villanueva, law student, University of San Francisco

Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period. Bad attitudes and questionable decision making within the immigration courts often cause the most noise because the impact is often more than a rude remark. While I do not believe problematic judges make up the whole picture of immigration courts, just one bad judge can be enough to impact the lives of many, and I only wonder whether it is the system that perpetuates behavior, the history and beliefs of immigration, or both that give rise to bad experiences.

Surprisingly in our own city, San Francisco Judge Nicholas Ford was the subject of a complaint that was sent to the U.S. Justice Department for being hostile and having biased treatment of immigrants in the courtroom. The accusations stated that he belittled migrants’ stories and struggles by making inappropriate comments. One account stated that he said “I can tell an indigent person when I see one, and you can afford an attorney” in response to someone who claimed they could not pay. Many accounts also made it a point to mention that he had previously been criticized for jailing a pregnant woman without bail for a nonviolent crime – this gives an idea of his character in court. When he was first appointed by the Attorney General under the Trump administration, Ford had been a judge in the criminal justice system and apparently had no prior immigration law experience. Other judges that have similar backgrounds can take biases from the criminal justice system and bring them into the immigration law field. There is the risk that the treatment of criminals becomes synonymous with the treatment of immigrants.

Even if judges like Ford represent a minority, the behavior exhibited by him is not unusual in immigration courts. In Jacinto v. INS, 208 F. 3d 725 (9th Cir. 2000), it was difficult for the respondent to even answer basic questions about her family’s struggles; she was constantly faced with interruptions by the immigration judge and a blatant lack of patience. Most people regardless of being an immigrant or not could become overwhelmed during questioning or lack of information about legal procedures. Lacking compassion and basic manners, whenever Jacinto was asked a question regarding why she was seeking asylum, the immigration judge or government attorney would interrupt her midsentence and not allow her to ask any clarifying questions. The transcripts reveal a sense of confusion and urgency, as they treated her as if they were in a rush and like she was wasting their time.

. . . .

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

Kelsea Villanueva, a law student, “gets” it! So why don’t Garland and his lieutenants? 

Perhaps, because they are too far removed from the human trauma and and the practical problems in the broken and unfair “courts” for which they are responsible! They obviously have become indifferent to the unnecessary human suffering they cause by tolerating this systemic stain on American justice.

It’s not that there aren’t lots of exceptionally well-qualified immigration lawyers, practical scholars, and effective litigators in the Bay Area (and most other areas where Immigration Courts are located) who would make great Immigration Judges. Therefore, it has taken a concerted effort over the past four Administrations, including the Biden Administration, NOT to recruit, attract, and hire the “best and  brightest” for these life or death judicial positions. 

One “key to building dysfunction” has been the childish, demeaning, and disrespectful treatment heaped upon the “IJ Corps” by DOJ politicos and EOIR “Management” trying to appease their “handlers.” Attempts to enforce “assembly line justice,” lousy technology, poor training, screwed up and always changing “priorities,” micromanagement by non-judges, and favoring “quick numbers” over thoughtful high quality judicial work product obviously discourages many of the most talented and well-qualified lawyers in the business from even applying. 

Some of those who do make the effort are then demoralized and discouraged when clearly inferior candidates, some lacking even basic immigration and asylum knowledge, are hired by a DOJ bureaucratic system that too often seeks and rewards complicity and “following orders” over intellectual excellence, proven immigration and human rights expertise, and the courage to make the right decisions even in the face of political pressure from above to “go along to get along” with each Administration’s enforcement agenda.

Surely, no panel of immigration/human rights experts would have recommended hiring someone like Judge Ford for the job! So, why was he even on the Immigration Bench in the first place? 

In every way, Judge Ford was EOIR’s self-created problem! It tied up both private resources and Government investigative resources that could have been better used. It further damaged EOIR’s reputation and ruined human lives. In the end, the “Ford brouhaha” produced no transparent results, thus further eroding public confidence in Government. It prompted neither accountability nor reforms to insure a better judicial selection process!

The best way to limit the administrative nonsense, unnecessary and inappropriate meddling, and time and resources wasted building a needless, ineffective bureaucracy to “monitor performance” and investigate complaints is to hire exceptionally well-qualified judges in the first place — good judges need neither much supervision nor significant monitoring. All they need is support, independence, professional training, continuing judicial education, and some inspirational encouragement from dynamic, well-qualified judicial leadership — things that generally have been in short supply within the EOIR bureaucracy, particularly over the past four years!

Leaders should be sitting judges — not just disconnected bureaucratic “managers” — who continue to handle regular dockets so they have the necessary perspective and first-hand experience to lead this broken system back to functionality. In what other “real” judicial system do the “chief judges and chief justices” largely or completely cease to perform judicial duties?

For example, Chief Justice John Roberts has no shortage of administrative and leadership tasks. Yet, somehow, he finds time to participate in every merits case coming before the Court! 

Almost every day, we see Court of Appeals decisions in which the Chief Judge of the Circuit was a panel member, sometimes even writing the opinion. Chief U.S. District Judges hear cases and sometimes author lengthy opinions in notable and controversial cases. 

There are few, if any, examples of successful judiciaries in which those in leadership positions isolate and insulate themselves from the judicial tasks of their colleagues! Yet, this has become “standard operating practice” at DOJ/EOIR. This is despite “clear and convincing evidence” that DOJ/EOIR’s bloated “Vatican style” (a/k/a “Legacy INS style”) bureaucracy is incapable of practical problem solving and has presided over the demise of a court system that once aspired to greatness, even if the efforts sometimes fell short!

The taxpayer money wasted on ludicrous “Immigration Judge Dashboards,” unnecessary “supervisors” who almost never go to court, ineffective and inefficient “Dedicated Dockets,” establishing “TV Adjudication Centers” in strange places, and running “kangaroo courts” embedded in the DHS Gulag could be repurposed into funding legal representation programs, a functioning e-filing system, more Judicial Law Clerks, judicial training by experts, and other badly needed and long overdue improvements and reforms. These things would actually help the system achieve justice with efficiency, rather than aggravating existing problems!

EOIR’s “customer service,” transparency, and engagement with the public get consistently low marks from Government watchdogs. I see no improvement under Garland.

Any legitimate system for judicial tenure or retention relies on robust public input and some peer involvement — things that are foreign to the DOJ/EOIR model which, if I do say so myself, bears a disturbing resemblance to the Byzantine bureaucracy of the “Legacy INS” (although the there are only a few us still around who experienced the latter “first hand”). 

Ironically, EOIR was originally established as an independent agency within DOJ to “free” it from the “Legacy INS;” over the years it has come more and more to look, feel, and operate like the worst aspects of that long-disbanded agency. 

In particular, it has “retaken on” the image of “being just another appendage of immigration enforcement” — a complete abandonment of the original goal of increased judicial independence in both fact and appearance!

Numerous private lawyers have related to me that being in an EOIR “courtroom” is too often “like facing two prosecutors.” Some say that their already traumatized clients are “re-traumatized” by the rude, disrespectful, and inhumane treatment they receive in Immigration Court as they attempt to plead for their lives and their families’ futures! What kind of judiciary “operates” in this manner?

For heaven’s sake, even former AG Alberto “Gonzo I” Gonzalez, hardly a “due process warrior,” spoke out publicly against demeaning treatment of migrants by Immigration Judges! Article III Courts continue to document instances of bias, incompetence, and cavalier treatment of human lives in Garland’s Immigration Courts at both trial and appellate levels. Yet, he says nothing and has taken few actions to solve the myriad of festering problems! We deserve better, much better, from the “people’s top lawyer!”

It’s also worth contemplating why law students understand the systemic problems and potential solutions better than the senior Government lawyers and officials we are employing and paying to mismanage it!

You can read the rest of Kelsea’s excellent piece at the above link!

🇺🇸Due Process Forever!

PWS

10-20-21

🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”

Carrie’s guest blog in ImmigrationProf Blog should be be read and taken to heart by everyone who believes in a better, racially equal, America:

https://lawprofessors.typepad.com/immigration/2021/10/guest-post-by-carrie-rosenbaum-the-slippery-slope-of-systemic-racism-in-immigration-law-del-rio.html

Friday, October 1, 2021

Guest Post by Carrie Rosenbaum: The Slippery Slope of Systemic Racism in Immigration Law – Del Rio

By Immigration Prof

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The Slippery Slope of Systemic Racism in Immigration Law – Del Rio by Carrie Rosenbaum

When Senator Maxine Waters proclaimed that what we witnessed in Del Rio, Texas last week, Customs and Border Protection officers on horseback whipping black men, harkened back to slavery, she drew an age-old, but still relevant connection between slavery, Jim Crow, and anti-immigrant racism. In a press briefing, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas stated, “[w]e know that those images painfully conjured up the worst elements of our nation’s ongoing battle against systemic racism.” Yet, if both are right, where are our equality, anti-racism principles and why haven’t they been enough to dismantle systemic racism? Should U.S. anti-discrimination law inhibit anti-black and anti-immigrant racism, in the U.S. and at the border? Does it? Is there a slippery slope, such that undeterred discrimination against immigrants at the border seeps beyond the immediate individuals at the border?

Senator Waters was right to blur the boundaries of citizenship and rights in her speech. Racism begets racism, and racism towards black Haitians at the border translates to anti-black racism within the United States, just as anti-Mexican racism does not confine itself to noncitizens, and never has. Examples abound including obvious examples, like Latinx lynching of the late 1840s through 1920s (which coincided with lynching of Blacks), mass expulsion or “repatriation” of persons of Mexican descent that included U.S. citizens in the early 1920s and 1930s again via “Operation Wetback” in the  1950s and more subtle ones like exploitation and expropriation of Mexican and Central American farm workers and laborers, whether authorized or not, and colorblind or race neutral policies that fall most heavily, even if not completely, on persons from Mexico and Central America, like border jails.

While the Equal Protection clause of the U.S. constitution does not limit itself to citizens, it falls vastly short in protecting racialized people of color, especially immigrants. The U.S. treatment of Haitians in Del Rio implicates the problem of anti-black and anti-immigrant racism, and is indicative of the express and implicit bias that continues to evade remedy. It runs much deeper than the disturbing images of CBP agents on horseback, and its impacts have ripple effects.

At the same time that DHS Secretary Mayorkas decried systemic racism, he spelled out the government’s potential argument that the exclusion of Haitians, and Central Americans, and Mexicans that accompanies such brutal treatment was not discriminatory pursuant to the current state of immigration equal protectionHe stated, “if we are able to expel them under Title 42 … we will do so” and announced that its application was “irrespective of the country of origin, irrespective of the race of the individual, irrespective of other criteria that don’t belong in our adjudicative process and we do not permit in our adjudicative process.”

Yet this is precisely how systemic racism flourishes. The reality is, this provision has been used to exclude the same racialized immigrants who have been subject to the worst treatment under immigration law. However, because the law is colorblind, Mayorkas can suggest that there was no discrimination. Pursuant to the Supreme Court’s 1977 Arlington Heights decision, discriminatory impact has to be accompanied by proof of discriminatory intent. Just by saying that wasn’t his (or implying it was not Congress’) intent, he can erase what too many know to be real. A new immigration priorities memo by the Agency released today stated that ““We must ensure that enforcement actions are not discriminatory and do not lead to inequitable outcomes.” It is a step in the right rhetorical direction, but does little to meaningfully address the colorblind racism that plagues enforcement.

What is the solution? Aside from a more expansive interpretation of the Equal Protection doctrine in line with Justice Sotomayor’s dissent in the Trump era Deferred Action for Childhood Arrivals case, and modest progress at the district court level in the crimmigration context, Congress could take steps to stop racial harm inflicted via immigration law and policy. By creating a path to legal status for those who not only have been here, but who have suffered the greatest harms of systemic racism, Haitian immigrants, Mexican immigrants, and others, Congress could start to undo the damage. It could also stop the relatively new practice of detaining or imprisoning migrants at the southern border, who happen to be almost entirely from Mexico and Central America, or abolish immigration prisons entirely. The policies that result in the imprisonment of Mexicans and Central Americans at the southern border now started with expulsion and imprisonment of Haitians in the 1980 and 1990s. Instead of expulsions and rumored potential imprisonment at the notorious Guantanamo Bay as was done in response to Haitians fleeing violence after the U.S. supported overthrow of democratically elected president, Jean-Bertrand Aristide, the U.S. could re-evaluate both its involvement in foreign affairs, and treatment of those who flee here after our interventions cause disruption and civil strife. The largest number of Black migrants come from Haiti and their mistreatment is rooted in anti-Black racism. Racializing anti-immigrant demonization does not confine itself to noncitizens, nor should the remedies. Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.

—–

Carrie Rosenbaum

Law Offices of Carrie L. Rosenbaum

Lecturer & Visiting Scholar, UC Berkeley

Access my law review articles and scholarship on SSRN 

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Very eloquently said, Carrie! 

Compare this with the racist blather and White Nationalist nonsense of nativist pols like Abbott, DeSantis, Cruz, Cotton, and others who glorify Jim Crow and seek to force a sanitized, whitewashed version of American history down the throats of the public! 

Also, compare this with the intellectually dishonest actions by Biden Administration officials. They disingenuously claim to be champions of racial equality and racial justice.

But, in reality, they operate “star chamber courts,” “New American Gulags,” and implement discredited, outmoded, and ineffective “Stephen Miller Lite” border enforcement policies that basically dehumanize people of color and deny them the due process and equal protection to which they are entitled under law. Also, think about the many Federal Judges who spinelessly enable that which most first year law students could tell you is illegal and unconstitutional, not to mention totally immoral! 

What  exactly does Assistant AG for Civil Rights Kristen Clarke do every day at the Civil Rights Division if unraveling the White Nationalist, racially tone deaf policies of her own Department, the DHS, and the “star chambers for people of color” being operated by her “boss” aren’t first and foremost on her “to do” list?

“Floaters”

“Floaters” — The ugly reality of Biden’s “Miller Lite border strategy.”  It’s mostly people of color floating face-down in the river, being illegally returned to danger zones, rotting in the “New American Gulag,” and being railroaded through Garland’s biased and dysfunctional “star chamber courts.” Right now, Garland and and the rest of of the Biden Administration have “zero (0) credibility” on racial justice and voting rights!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

The biggest failure of the Biden Administration to date is their willful blindness to the obvious connection between lack of overall racial justice in America and running star chambers, gulags, and border enforcement policies that are unconstitutional, dehumanizing, and racially demeaning to individuals of color. Sadly, and tragically we seem to have gone from “zero tolerance” under Trump to “zero credibility” under Biden! “When will we ever learn, when will we ever learn?”

🇺🇸Due Process Forever!

PWS

10-02-21

☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮

Gulag
Inside the Gulag — PHOTO: Creative Commons
In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color and other “undesirables” whose “crime” is to demand due process under law! How subversive!

https://lawprofessors.typepad.com/immigration/2021/08/supreme-court-to-review-bond-hearings-for-detained-immigrants.html

Dean Kevin Johnson posts on ImmigrationProf Blog:

Monday, August 23, 2021

Supreme Court To Review Bond Hearings For Detained Immigrants

By Immigration Prof

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The Supreme Court has decided a number of immigrant detention cases in recent years.  Next Term brings another case.    Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders.  A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.

The consolidated  cases are Garland. v. Gonzalez and Tae D. Johnson v. Guzman Chavez.  Amy Howe on SCOTUSBlog offers some background on the cases her.

 

KJ

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Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?

Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!

And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!

Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!

Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!

🇺🇸Due Process Forever! The “New American Gulag,” Never!

PWS

08-24-21

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse?  — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

 

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

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Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

Current Affairs | Permalink

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the  Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

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

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control. 

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of  American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21