“GOOD ENOUGH FOR GOVERNMENT WORK?” — Any Ol’ Notice Will Do! — BIA Continues To “Fill In The Blanks” In Aid Of “Partners” @ DHS Enforcement — MATTER OF HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

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

Matter of HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

https://www.justice.gov/eoir/page/file/1274901/download

BIA HEADNOTE:

The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.

PANEL: BEFORE: Board Panel: MANN, Board Member; MORRIS,* Temporary Board Member; Concurring Opinion: KELLY, Board Member.

* Immigration Judge Daniel Morris, Hartford CT Immigration Court, Temporary Board Member/Appellate Immigration Judge

OPINION BY: Judge Ana Mann

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The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).

This follows Matter of J.J. Rodriguez where the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.

There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.

I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”

To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.

Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴‍☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.

Meanwhile, back at the ranch, the BIA is advertising for an additional Vice Chair/Deputy Chief Appellate Judge to help insure that the deportation assembly line in Falls Church moves smoothly and that due process and fundamental fairness never get in the way of enforcement. https://www.justice.gov/legal-careers/job/deputy-chief-appellate-immigration-judge-vice-chair

Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.

Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.

Due Process Forever! Complicity Never!

PWS

05-13-20

DUE PROCESS: Round Table ⚔️🛡 Files Amicus Brief in Yanez-Pena v. Barr (5th Cir.) Cert. Petition — Pereira Issue

Richard W. Mark, Esquire
Partner
Gibson Dunn
New York

Amer S. Ahmed, Esquire
Partner
Gibson Dunn
New York

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

Read the entire brief here:

Yanez-Pena Amicus Brief TO FILE

Here’s the summary from the brief :

SUMMARY OF ARGUMENT

It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”

This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

2

one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?

Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).

This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel

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of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).

This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.

I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).

This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.

II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle

4

of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.

This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.

III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.

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

Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.

Due Process Forever!👍🏼

PWS

05-12-20

HON. JEFFREY S. CHASE: 1ST CIRCUIT CORRECTS BIA ON GENDER-BASED ASYLUM DENIALS: De Pena Paniagua v. Barr – The Recurring Failure Of Scholarship By The AG & The BIA Again “Outed” By Article IIIs: So Why Do Federal Courts Continue “Deferring” To Politicized, Non-Expert, Sloppy Adjudications By Enforcement Officials Working For The Executive Branch?

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Gender Per Se

In De Pena Paniagua v. Barr, a three-judge panel of the U.S. Court of Appeals for the First Circuit made several corrections to the Trump administration’s application of the law of asylum as it applies to victims of domestic violence. The court’s precedent decision provided validation to the longstanding views of asylum advocates that the administration has worked hard to ignore.

As background, after an 18-year legal battle, the BIA in a 2014 decision, Matter of A-R-C-G-, finally recognized that the particular social group of married Guatemalan women unable to leave their relationship warranted asylum where its members are targeted for persecution due to their group characteristics.

In 2018, then-Attorney General Jeff Sessions vacated A-R-C-G-, claiming that it lacked the rigorous legal analysis expected of such a decision. Sessions stated that while his new decision did not bar all such claimants from asylum, he believed few victims of domestic violence would manage to qualify. In particular, Sessions decided that “women unable to leave their domestic relationship” could not form the legitimate particular social group needed under the asylum laws, on the ground that such groups cannot be defined even in part by the persecution the group fears. In support of this view, Sessions concluded that the asylum-seeker’s inability to leave her relationship in the case in question was due to persecution, although he provided no insight as to what facts supported his belief.

Many similar cases were pending when Sessions issued his fateful decision. But instead of remanding all pending cases to allow the opportunity to respond to the sudden change in the law, the BIA instead began denying those cases on the grounds that Sessions had rejected the concept, without bothering to actually analyze the specific facts of each case to see if they still merited asylum under the law.

In De Pena Paniagua, the First Circuit called shenanigans. It began by noting that nothing in Sessions’ decision created a categorical rule precluding any and all applicants from succeeding on asylum claims as members of the group defined as women unable to leave their relationships. The BIA had thus erred in categorically denying such a claim.

The court next turned to Sessions’ error in concluding that the inability to leave a relationship necessarily results from persecution, calling Sessions’ statement to the contrary “arbitrary and unexamined fiat.” But the court continued that even if persecution was the cause, the threatened abuse that precludes someone from leaving a relationship “may not always be the same…as the physical abuse visited upon the woman within the relationship.” Finally, the court held that even if the harm was the same, there is no reason such abuse can’t do “double-duty, both helping define the group and providing the basis for a finding of persecution.”

It bears noting that in a 2007 precedent decision, Matter of A-M-E- & J-G-U-, the BIA had only held that a particular social group cannot be defined “exclusively by the fact that its members have been subjected to harm.” And the group in De Pena Paniagua (and in A-B- and A-R-C-G-, for that matter) was not exclusively defined by the inability to leave, but also by its members’ gender, nationality, and domestic relationship status. Of course, the inability to leave a relationship can be due to social, religious, economic, or other factors having nothing to do with persecution. But even if the inability to leave is interpreted as resulting from persecution, the fact that such harm would only partially define the group would not invalidate it under A-M-E- & J-G-U- (which borrowed the “exclusively defined” language from particular social group guidelines issued by UNHCR in 2002, which the Board had cited in an earlier decision).

In a 2014 case, Matter of M-E-V-G–, DHS had argued for a requirement that a particular social group “must exist independently of the fact of persecution,” a stricter requirement that would seemingly forbid a group from being even partially defined by persecution. Strangely, the BIA responded to DHS’s argument in a footnote, claiming that DHS’s proposal “is well established in our prior precedents,” a statement that was clearly untrue. And in support of its claim, the BIA cited to Matter of A-M-E- & J-G-U-, which as discussed only precludes groups defined exclusively by persecution.

In his decision in A-B-, Sessions relied in part on the footnote in M-E-V-G- mischaracterizing prior case law to support his claim that a particular social group must exist independently of the harm asserted, thus perpetuating the Board’s prior falsehood. As in fact no prior BIA precedent had ever held that a particular social group cannot partially be defined by persecution, the First Circuit was correct to call out the unsupported legal conclusion. As merely looking up the citation in the BIA’s footnote would have revealed the error, one could argue that Sessions’ decision lacked the rigorous legal analysis expected of such a decision.

In remanding the record back to the BIA, the First Circuit also held out the possibility of considering a more concise group defined by an asylum applicant’s gender per se. This group was suggested in the amicus brief filed in the case by Harvard Law School’s Immigration and Refugee Clinical Program. While leaving it to the BIA to decide whether gender alone may constitute a cognizable particular social group for asylum purposes, the court provided very strong reasons why it should. The BIA’s recognition of gender per se would constitute a historical correction to U.S. asylum law, putting it in line with long recognized international standards. The same 2002 UNHCR Guidelines recognized gender as falling “properly within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.”

Attorneys Jonathan Ng and Robert F. Ley of the Law Offices of Johanna Herrero represented the petitioner. Our Round Table of Former Immigration Judges is proud to have been among the distinguished amici filing briefs in the case, which included the Center for Gender and Refugee Studies, the Harvard Immigration and Refugee Clinical Program, a distinguished group of immigration law professors, and a group of faith-based organizations. Our heartfelt thanks to attorneys Richard W. Mark, Amer S. Ahmed, Indraneel Sur, Timothy Sun, Grace E. Hart, and Chris Jones of the law firm of Gibson Dunn for their outstanding efforts on our brief.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished with permission.

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

The biased, substandard performance and deficient scholarship of both the Attorney General and the BIA is matter of public record. The AG is not a qualified quasi-judicial official; he’s a prosecutor, with vengeance, who harbors a very clear enforcement bias against migrants. The BIA is structured to facially look like an expert body of quasi-judicial adjudicators. But, the frequent mistakes in their decisions and the clear bias in their hiring and supervision by the Attorney General expose the unhappy truth: they are nothing of the sort. So, what’s the excuse for the Article IIIs “deferring” to decisions on questions of law from these unqualified enforcement officials masquerading, not very convincingly, as “fair and impartial adjudicators?”

Looks like “judicial task avoidance” and “abdication of duty” to me!

Article III Judges are paid to determine what the law is (and not much else). They should do their jobs rather than hiding beyond the “doctrine of false deference.”

Here’s my previously posted “take” on De Pena Paniagua: https://immigrationcourtside.com/2020/04/24/due-process-gender-based-asylum-wins-1st-cir-slams-bia-sessionss-matter-of-a-b-atrocity-remands-for-competent-adjudication-of-gender-based-asylum-claim-de-pena-paniagua-v-ba/

Due Process Forever!

PWS

05-11-20

Suzanne Monyak @ Law360: FEDERAL COURTS RECOGNIZE THAT BILLY BARR’S BIA IS A FRAUD! — So Why Do They Let The Unconstitutional Abuse Of Persons Seeking Justice Continue Under Their Noses?

https://www.law360.com/immigration/articles/1271825/immigration-board-picks-under-trump-to-set-lasting-policy

Suzanne writes in Law360:

U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.

Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”

“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.

While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.

Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.

Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.

Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.

“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.

A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.

She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”

During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.

“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.

High Rates of Asylum Denials

Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.

All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.

The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.

Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.

However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.

“You’re looking to deny cases at that point,” he said.

The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.

One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.

“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”

A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.

In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.

In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.

According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.

. . . .

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

Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link. I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.

I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️

This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.

And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!

Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” on a number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.

In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

05-11-20

☠️INSIDE THE GULG: Left To Die ⚰️ By DHS & Their EOIR Patsies, He’s Saved By The NDPA 🎖 & A U.S. District Judge 🧑🏽‍⚖️ — Failed Immigration “Court” 🤡 System Trashes Due Process🗑, Abandons Humanity🤮!

https://www.latimes.com/opinion/story/2020-05-08/immigration-detention-coronavirus-release

Former GULG prisoner Nicholas Morales writes in the LA Times:

I consider myself an American. I came to the United States from Mexico when I was a teenager. I’m now 37 years old. My wife and son are U.S. citizens. For years, I ran my own mechanic shop in New Jersey. I have paid taxes and nearly all my family members live in and around New Jersey, including my brothers, mother, cousins, nephews and nieces. This is the only home I know.

My life shattered on Nov. 21, 2019, when immigration officers picked me up right after I had dropped off my 5-year-old son at school. Although I had been living in the U.S. for almost 20 years, I had not managed to get the right paperwork to be here. The immigration officers took me to the Elizabeth Detention Center — a prison-like structure run by the private corporation CoreCivic. I didn’t have a chance to say goodbye to my son or my wife.

I spent five months at the Elizabeth Detention Center. As the coronavirus pandemic hit our nation and New Jersey became an epicenter, I grew increasingly worried because neither I nor hundreds of immigration detainees had any way to protect ourselves from getting sick.

I first heard rumors of COVID-19 in February. I heard it was a highly contagious illness, that it was worse than the flu, and that it was killing many people. The detention center personnel told us nothing. An Immigration and Customs Enforcement supervisor told us not to believe the news, that the danger of the virus was exaggerated. But by mid-March, we started hearing that someone in the medical unit was showing symptoms.

The Elizabeth Detention Center has capacity for just over 300 people. At nearly all times, I was packed into a large room with other immigrants. Our beds were close together, with only two to three feet between them. We shared toilets, showers, sinks, communal surfaces and breathing air. We did not have hand sanitizer or masks. We could not disinfect our shared surfaces. We could not maintain any meaningful distance among us, let alone six feet of distance. We were never permitted outside; there is no meaningful outdoor space.

As the days passed, we grew increasingly anxious about COVID-19, especially those of us who had health issues or were older. I have bad asthma and I wasn’t alone in wanting to get out. Everyone wanted out. I didn’t have a lawyer, but I was in regular contact with pro bono attorneys who wanted to help me.

Then, on March 13, the detention center halted all visitations, including by attorneys. On March 19, an ICE employee at the facility tested positive for the virus. Still, the facility staff refused to communicate with us about the pandemic, their plans to keep us safe, or whether we might be released. We still did not have access to hand sanitizer or masks to protect ourselves. The facility’s supervisors told us that we couldn’t have any hand sanitizer. The dormitories were still packed with approximately 40 people per unit.

One day in March, I watched a detainee collapse. He was taken away. I do not know if he had the virus. In mid-March, I was diagnosed with bronchitis. I could hear rattling noises in my chest and could not seem to get enough air.

My fellow detainees and I worried we were being left to die. Some of us, in desperation, decided to go on a hunger strike on March 20. The guards then put me in isolation to punish me. While in the box, I felt some relief to be away from the masses.

My breathing continued to worsen. I finally ate food again on March 25, hoping that would improve my condition. On March 31, a pro bono lawyer made an emergency request for my release, which immigration officials denied even though I had such trouble breathing that I needed treatment with an albuterol machine. On April 3, an immigration judge denied my request for release on bond.

Every way I turned seemed to be another dead end. The guards commented disapprovingly when they heard I had been talking to the media about our dire predicament. No help came for us.

I had one last hope for release. I had been included in a group habeas petition filed before the federal district court in New Jersey. Thankfully, I was let out on April 20 because a federal judge determined that COVID-19 posed a particularly serious health risk to me and four others and ordered our immediate release.

I have since returned to my family and isolated myself for 14 days. I lost my mechanic shop while I was in detention because I wasn’t able to pay rent, but I am grateful to be released. I’m now in the process of appealing my deportation order.

. . . .

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Read the rest of this first-hand account at the link.

Many, many thanks to the pro bono attorneys from the “New Due Process Army” (“NDPA”) who stepped in to save Nicholas’s life snd the lives of many others abandoned in the Gulag. You are the real “warriors” and heroes of our age!🏅🥇😇 Hats off!🎩

It’s clear from accounts like this across the country that the only “real” bond hearings for Gulag inmates that comply with Due Process take place before U.S. District Judges or the U.S. Magistrate Judges who work for them.

So what’s the purpose of a bogus “Court System” run by Sessions and now Billy Barr to function as a subservient branch of DHS Enforcement? None, obviously!

But, it’s worse than that. Because of the outward trappings of a judiciary, the Immigration “Courts” put a “false veneer of justice” on an inherently tainted and unfair process. This wastes time, unnecessarily prolongs detention, squanders public funds, and sometimes leads Article III Judges who are unwilling or unable to understand the process to give “undeserved deference” to the decisions of these kangaroo 🦘courts.

An independent Article I Immigration Court could provide the expertise and efficiency necessary for fair impartial adjudications that comply with due process and develop “best practices.” This, in turn, would relieve the Article III Courts of the burden of having to constantly intervene to correct basic errors in legal analysis, judgment, and process inevitably caused by the improper political objectives driving EOIR’s dysfunction.

Going on five decades in the law has shown me that problems are best corrected by getting things right at the earliest point in the system. That’s clearly not happening with today’s inept, inefficient, and intentionally unjust, politicized, and weaponized Immigration “Courts.”

Until Congress and/or the Article IIIs do their jobs and put an end to this deadly nonsense, it will continue to endanger lives☠️⚰️, burden the justice system⚓️⚖️, and waste public funds 🔥💰.

Due Process Forever! Clown Courts 🤡, Never!

PWS

05-08-20

SCRUTINY 🔎: IG to Look Into EOIR’s “Three Ring Circus” 🤡 Operations During Pandemic! — Priscilla Alvarez Reports for CNN

https://apple.news/A_cgrTbprRN6R9noX9DJOuQ

Priscilla Alvarez reports for CNN:

The Justice Department’s inspector general is reviewing the Trump administration’s decision to keep the nation’s immigration courts open while the coronavirus swept through the United States.

The Executive Office for Immigration Review, the agency within the Justice Department that oversees the immigration court system, came under increased criticism from immigration judges, attorneys, and prosecutors for proceeding with immigration hearings despite social distancing guidelines and shelter in place orders.

Eventually, the agency postponed hearings scheduled for immigrants who are not in detention, providing some reprieve and resulting in less traffic at the court, but hearings for immigrants in detention, including children, continue to proceed.

It made incremental changes to court operations in the first weeks of the outbreak, often late at night and through Twitter, frustrating immigration judges and lawyers who repeatedly urged the agency to close courts altogether.

According to the inspector general’s website, the office will “assess EOIR’s communication to staff, parties to proceedings, and the public about immigration court operations; its use of personal protective equipment; its use of worksite flexibilities; and its ability to mitigate health risks while maintaining operations during the COVID-19 pandemic.”

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

Communication with the field and the public hasn’t been a strong point for EOIR in this regime. Nor has getting employee or public input before taking drastic actions been a concern. The disrespect for its own judges is graphically illustrated by EOIR’s frivolous attempt to “decertify” the National Association of Immigration Judges (“NAIJ”) when it should be getting input from them (and the public) and working cooperatively to implement “best practices.”

Past IG investigations haven’t turned out particularly well for EOIR. But, the regime has shown a spectacular capacity for “blowing off” the results of independent investigations into its conduct and following up by “punishing” the investigators without consequences for the wrongdoers.

Ironically, then, if the investigation is critical of EOIR, it could be more “career threatening” for the investigators than for the delinquent EOIR management officials carrying out the “party line.”

Due Process Forever! Clown Courts 🤡 Never!

PWS

05-07-20

DEATH IN THE GULAG⚰️: ICE Notches First Known COVID-19 Prisoner Fatality ☠️ — Advocates Have Been Warning 🆘 Of Dangers & Seeking Releases — How Many More Will Die ⚰️ in Captivity?

https://apple.news/AF9ZwIjhuQY2ICw31DyPnug

Sarah Ruiz-Grossman reports for HuffPost:

An immigrant being held in detention at an Immigration and Customs Enforcement facility in San Diego has died of COVID-19.

A 57-year-old detainee at ICE’s Otay Mesa facility, which is run by private contractor CoreCivic, died early Wednesday of complications of the coronavirus disease after being hospitalized since late April, according to San Diego County officials. This is the first reported COVID-19 death of an immigrant in ICE custody.

Carlos Ernesto Escobar Mejia was from El Salvador, according to a government report obtained by BuzzFeed News. He’d been held by ICE since January and was hospitalized April 24 after exhibiting coronavirus symptoms. He had hypertension and self-reported diabetes but was denied release from custody in mid-April by an immigration judge.

ICE and CoreCivic did not immediately respond to a request for further details.

Advocates had been warning about unsafe health conditions at the Otay Mesa detention center for weeks. The facility currently has the biggest outbreak of COVID-19 of any ICE detention center, with at least 132 immigrants and 10 ICE employees testing positive as of last week.

(CoreCivic in mid-April said it had given masks to detainees at Otay Mesa and was quarantining positive cases in “housing pods” and separating those at high medical risk.)

Of nearly 30,000 immigrants in ICE detention centers nationwide, the agency has so far tested only 1,460 for COVID-19, and more than 705 immigrants have tested positive.

Activists have been calling for the release of all people from immigration detention, warning that there is no realistic way to keep immigrants safe during a pandemic in such facilities, which have long been reported to have substandard health care and sanitation.

“This is a terrible tragedy, and it was entirely predictable and preventable,” Andrea Flores, deputy director of immigration policy at the American Civil Liberties Union, said in a statement Wednesday.

“For months, public health experts and corrections officials have warned that detention centers would be Petri dishes for the spread of COVID-19 — and a death trap for thousands of people in civil detention,” she added. “Unless ICE acts quickly to release far more people from detention, they will keep getting sick and many more will die.”

. . . .

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

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

This illustrates the point recently raised by Don Kerwin at CMS in an article posted on Courtside. https://immigrationcourtside.com/2020/05/03/don-kerwin-cms-detention-should-not-be-a-death-sentence-☠%EF%B8%8F☠%EF%B8%8F⚰%EF%B8%8F⚰%EF%B8%8F/

According to Sarah’s article, this victim was denied bond by an Immigration Judge, despite exhibiting “high risk” factors in an inherently unhealthy and unsafe detention center. Judge Jeffrey Chase and I have pointed out before that a functional Immigration Court, including a BIA committed to fair and impartial justice and willing to reign in unjustified policies and poor judgment on the part of ICE, could have avoided such tragedies. https://immigrationcourtside.com/2020/04/06/hon-jeffrey-s-chase-matter-of-r-a-v-p-bond-denial-maximo-cruelty-minimal-rationality-idiotic-timing-bonus-my-monday-mini-essay-how-eoir/

But, we have just the opposite these days. https://immigrationcourtside.com/2020/03/18/latest-outrage-from-falls-church-bia-ignores-facts-abuses-discretion-to-deny-bond-to-asylum-seeker-matter-of-r-a-v-p-27-in-dec-803-bia-2020/

That means that responsibility for meaningful custody review passes to the U.S. District Courts.

Why have an Immigration Court at all if it’s going to function as a mindless “rubber stamp” on DHS Enforcement driven by White Nationalist extremist politicos like Miller? If the Immigration Courts are no longer willing or able to guarantee fair and impartial adjudications, which unfortunately appears to be the case under Billy Barr, maybe all removal proceedings and bond hearings should just be held before U.S. Magistrate Judges and U.S. District Judges until Congress establishes an independent Article I Immigration Court!

Due Process 🧑🏽‍⚖️🧑🏽‍⚖️ Forever! More Deaths ⚰️ in the New American Gulag, ☠️ Never!

PWS

05-07-20

LAWRENCE UNIVERSITY, GOVERNMENT 365: INTERNATIONAL LAW — A Virtual Conversation Between Professor Jason Brozek and Me!

https://youtu.be/CmC5fLys8oM

Whatever happened to the “promise of Kasinga? How have Sessions & Barr attacked the international refugee definition? Does international law have any meaning for the U.S. today? All this and more in 15 minutes!

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

See the “premier offering” from the “Courtside Video” broadcasting from our redesigned studio!

Thanks so much, Jason, for inviting me to do this! I hope your students find it useful! And, remember, I’m always available to answer questions at “Courtside.”

Due Process Forever!

PWS😎

05-06-20

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

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

Tanvi writes for Roll Call:

. . . .

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

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

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

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

New roles

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

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

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

EOIR said its office first proposed that designation in 2000.

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

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

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

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

Faster hiring process

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

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

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

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

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

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

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

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

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

. . . .

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

Read Tanvi’s full article at the link.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

05-05-20

DON KERWIN @ CMS: “Detention Should Not Be A Death Sentence.”☠️☠️⚰️⚰️

Donald M. Kerwin
Executive Director
Center for Migration Studies

https://cmsny.org/publications/immigrant-detention-covid/

This essay was last updated on May 2.

In late March, I argued in an earlier version of this paper that the US Department of Homeland Security (DHS) should immediately embark on an aggressive program of release, supervised release and alternative-to-detention (ATD) programs for immigrant detainees in response to the Coronavirus Disease 2019 (COVID-19) pandemic.[1] Since that time, the number of immigrants in Immigration and Customs Enforcement (ICE) detention has fallen by nearly 8,400, but not nearly as fast or dramatically as necessary, given the perilous conditions in which nearly 30,000 immigrant detainees remain and how rapidly the virus has swept through immigrant detention facilities throughout the country and beyond.

The Size of the Crisis

On March 17, Immigration and Customs Enforcement (ICE) reported that there were no “confirmed” cases of COVID-19 in its detention centers, a meaningless claim given the paucity of testing and the certainty of “unconfirmed” cases, as affirmed by ensuing lawsuits.[2] A month later, ICE reported 124 confirmed cases. Six weeks later, as of May 1, this number had more than quadrupled to 522 cases in 34 facilities, as well as 39 confirmed cases among ICE employees in those facilities (ICE 2020b).[3]

Yet ICE’s figures point to only the tip of the iceberg. By mid-April, ICE had tested only 300-400 detainees for COVID-19 infection (Misra 2020). By May 1, it had tested 1,073 detainees, a very low percentage of those in its custody during the course of the pandemic (ICE 2020b). Moreover, ICE figures do not count former detainees who contracted COVID-19 in its custody,[4] a large number of whom were deported prior to being tested (Dickerson and Semple 2020). Nor do they count the infected staff of ICE contractors, including employees of the private corporations that own and operate its largest detention centers and that administer many state and local ICE contract facilities.[5] On April 2, for example, ICE reported no confirmed cases of infected detainees, but one suspected case, at the massive Stewart Detention Center in Lumpkin, Georgia (Stewart). CoreCivic, one of ICE’s largest private detention contractors, operates Stewart.[6] By April 10, ICE “knew of” 30 suspected and five confirmed cases at Stewart.[7] As of April 28, 42 CoreCivic employees and one ICE employee at Stewart had tested positive for COVID-19 (Stokes 2020). In an April 21 email to Mark Dow, Amanda Gilchrist, the Director of Public Affairs at CoreCivic said there had been 98 positive cases among CoreCivic staff since the onset of the pandemic, a number that did not count staff who had “recovered from COVID-19” and received “a doctor’s clearance to return to work” (on file with author).

ICE has confirmed that “a number of non-ICE employees (contractors) in facilities that hold ICE detainees have contracted COVID-19, and some of them died from COVID-19” (Tanvi 2020). However, it has been “unable to determine how many non-ICE personnel in state and local jails have contracted COVID-19 or died from COVID-19” (ibid.). Finally, it reports that “some non-ICE detainees in non-ICE facilities, shared with ICE detainees, also contracted COVID-19, and some of them died from COVID-19” (ibid.).

As of March 21, 38,058 immigrants were in ICE custody. By April 25, this number had dropped to 29,675 including 15,855 persons apprehended by ICE and Homeland Security Investigations, and 13,820 referred by Customs and Border Protection (CBP) (ICE 2020a). By way of comparison, Canada – which detains many times fewer immigrants than the United States – released more than one-half of those in its custody between March 17 and April 19 (Global News 2020).

As of April 25, ICE still unconscionably held 5,261 persons who had established “persecution” and “torture” claims, and who should not be detained in any circumstances, much less the present. It also continues to detain persons approved for release. In a particularly disturbing report, detainees in New York cannot post bond because of the closure of ICE’s New York City office (Katz 2020). Finally, it continues to detain families and minors. On April 13, the Washington Post reported that the population at ICE’s three family detention centers had fallen from 1,350 to 826 persons (Hsu 2020). By April 21, the number had fallen to 698 persons, including 342 minors.[8]

On March 28, a federal district judge issued a temporary restraining order that required the administration to “make and record continuous efforts” to release the more than 5,000 minors in ICE family detention facilities and Office of Refugee Resettlement (ORR) shelter-like facilities for unaccompanied minors.[9] Her decision recognized the “severity of the harm” to which children in these facilities, particularly ICE facilities, “are exposed and the public’s interest in preventing outbreaks of COVID-19 … that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems.” On April 24, the judge ordered ORR and ICE to continue “to make every effort to promptly and safely release” children with “suitable custodians.”[10]

ICE Policies and Procedures

ICE can decrease its detention population in two main ways, by admitting fewer immigrants into its system and by more generous and, in the circumstances, appropriate release standards. It has failed to move decisively enough in either direction.

. . . .

********************
Read Don’s complete article at the link.

Thanks Don!

In this regime, the Gulag is all about using the “facade” of euphemistically-named “civil immigration detention” as a way of punishing those who have the audacity to assert their legal rights, to limit their Fifth Amendment and statutory rights to counsel, to inhibit their ability to understand the applicable legal criteria and prepare their cases, to coerce them into abandoning claims for relief and waiving appeals, and to send “deterrent messages” to others.

What it doesn’t have much connection with these days is insuring appearance and protecting the public. Relatively few detained individuals have criminal records that present a realistic threat. Also, all reputable studies show that when individuals are represented by counsel, community alternatives to detention are used, and individuals actually understand the requirements, the appearance rate for those with asylum or other claims for relief approach 100%.

So, the Gulag is largely an expensive and dangerous fraud. That’s not to say that other Administrations haven’t misused detention of non-criminals. It been more or less increasing over the past four decades — ever since the Mariel Boatlift. But, this regime has gone “above and beyond” in the intentionally cruel, unnecessary, and coercive expansion and abuse of the Gulag.

The BIA has abandoned any attempt to bring integrity and uniformity to the bond system. Instead, they have adopted a “screw the individual, kiss up to Barr, Miller, & the White Nationalist politicos who run this dysfunctional system.”

The response from the Article IIIs has been mixed.

Hopefully, the extensive U.S. District Court detention litigation across the country will finally “open the eyes” of the Article III Judiciary to the callous disregard of human life and welfare and the abusive, racially driven, punitive intent fueling the regime’s “Gulag expansion.”

PWS

05-03-20

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

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

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

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

April 28, 2020 HUMAN RIGHTS

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

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

by Hon. Mimi Tsankov

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

—Senator Sheldon Whitehouse

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

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

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

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

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

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

Thomas Cizauskas from Flickr

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

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

. . . .

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

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

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

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

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

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

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

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

PWS

05-02-20

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

Laura Lynch of AILA reports:

Hi all-

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

Philip Montante- Batavia NY

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

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

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

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

Laura A. Lynch, Esq.

Senior Policy Counsel

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

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

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

Due Process Forever! Star Chambers, Never!
P

PWS

05-02-20

COMING ATTRACTION: Hear Round Table “Fearless Knightess” ⚔️🛡 Hon. Susan Roy On “NJ Insider — Politically Direct Podcast” — Thursday, April 30, @ 9:00 PM EDT!

Here’s the link:

http://www.insidernj.com/podcast/politically-direct-episode-92-guest-susan-roy-former-immigration-judge/

Podcast: Politically Direct Episode 92 With Guest Susan Roy, Former Immigration Judge

By Insider NJ | April 29, 2020, 12:45 pm

Coming up on Thursday Night April 30th and LIVE at 9:00PM, I welcome Former Immigration Judge Susan Roy to Politically Direct. We will discuss her time working in Federal Immigration Court, the challenges of Immigration Law, the current political climate, the impact of COVID-19 on current immigration cases and much more.

I am proud to partner with Insider NJ and host this weekly informative podcast.

Feel free to call in and chat with us during the program.

818-572-8032

Tell your family and friends about this upcoming episode.

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

Three cheers for Sue!

Due Process Forever!

PWS

04-20-20

“TILL DEATH ☠️⚰️ DO US PART” — EOIR CAN CONTINUE OPERATIONS DESPITE COVID-19: U.S. District Judge “Stuffs” Immigration Bar’s Pleas For Better Protections!

https://www.law.com/nationallawjournal/2020/04/28/federal-judge-says-he-cant-order-immigration-courts-to-close-over-covid-19/?kw=Federal%20Judge%20Says%20He%20Can%27t%20Order%20Immigration%20Courts%20to%20Close%20Over%20COVID-19&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20200428&utm_term=nlj&slreturn=20200328111724

Jacqueline Thomsen reports for the National Law Journal:

A federal judge in Washington, D.C., ruled Tuesday that he did not have the authority to order immigration courts to temporarily shut down during the COVID-19 pandemic.

U.S. District Judge Carl Nichols, confirmed to the federal bench last year, found he did not have jurisdiction to rule on that matter, and the immigration lawyers and detained immigrants seeking a temporary restraining order against the Justice Department, which oversees the immigration courts, are unlikely to succeed on the merits of their case.

He pointed to the Immigration and Nationality Act, which states legal challenges tied to removal proceedings conducted in immigration courts can only be brought to courts of appeals.

Nichols wrote that “the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings.” But he found the detained immigrants named in the suit do not have “an imminent in-person hearing,” and therefore lack standing.

“More generally, there is no evidence in the record that any of the individual plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The individual plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR’s failure to take different action,” Nichols wrote.

The judge also took issue with immigration lawyer groups who alleged that detained immigrants are being deprived of counsel due to policies implemented during the pandemic.

Nichols said the lawyers “fail to explain” how the policies have caused the immigrants “to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit.”

He further said the immigration lawyers have failed to show that “immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings.”

. . . .

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

Those with access to the NLJ (everyone can get 3 free “non-premium” articles per month by registering) can read Jacqueline’s full article and get Judge Nichols’s full opinion at the above link.

A slight clarification of the last sentence in Jacqueline’s full article: “Nichols, during arguments, was concerned about what options detained immigrants have if an immigration judge, which are Article I judges under the control of the Department of Justice, refused to delay an in-person hearing or hold it remotely.”

Immigration Judges are “administrative judges” who work for the Attorney General. Unfortunately, they are not “Article I Judges,” which would make them a true independent judiciary.

Immigration Judges would like to be Article I Judges. Most immigration and judicial experts agree that they should be. There are a number of legislative proposals circulating to establish an independent Article Immigration Court. But, alas, notwithstanding the obvious and pressing need, Congress is nowhere close to legislating the necessary change.

So, these current blatantly unconstitutional “captive courts” operating under the DOJ will continue to stagger on, taking innocent lives and trampling due process and fundamental fairness in the process. Grimly, as I had predicted, it’s apparently going to take some actual dead bodies⚰️of migrants and perhaps their lawyers piling up on the courthouse steps to get either the Article IIIs or Congress to pay serious attention to this unfolding disaster which seems to operate just enough beneath their “radar screens” to allow them to ignore or, as in this case, paper it over.

Due Process Forever! Captive Courts Never!

PWS

04-28-20

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

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

Dan Kowalski reports from LexisNexis Immigration Community:

Daniel M. Kowalski

27 Apr 2020

ineffective assistance

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

Calderon-Rosas v. Atty. Gen.

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

[Hats off to Petra D. Fist!]

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

Get the full decision at the link.

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

Circuit Judges

Opinion by: Judge Krause

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

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

8

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

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

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

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

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

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

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

Due Process Forever!

PWS

04-28-20

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PWS

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PWS

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