Former Attorney General Eric Holder – immigrationcourtside.com

⚖️ HON. “SIR JEFFREY” CHASE ON LOZADA/INEFFECTIVE ASSISTANCE OF COUNSEL— Reviving My “Rivera Dissent,” While Highlighting More Than A Decade Of EOIR/DOJ Failure To Provide Effective Guidance!

https://www.jeffreyschase.com/blog/2022/10/11/amending-lozada

Amending Lozada?

October 11, 2022

In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.

A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4

By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7

A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9

Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.

The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:

I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12

Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.

Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:

By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15

In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16

Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18

When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.

Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.

In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.

According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22

Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.

Copyright 2022 Jeffrey S. Chase.All rights reserved.

Notes:

466 U.S. 668 (1984).

Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).

Id.

The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.

19 I&N Dec. 637 (BIA 1988).

Id. at 638.

Id. at 639.

American Immigration Council, Practice Advisory, “Seeking Remedies For Ineffective Assistance of Counsel in Immigration Cases,” (Jan. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_cases_practice_advisory.pdf, at 11.

Id.

10.21 I&N Dec. 599 (BIA 1996) (en banc).

11.Id. at 606.

12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.

13.23 I&N Dec. 553 (BIA 2003).

14.Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec. 710 (A.G. Jan. 7, 2009).

15.Id. at 737-38.

16.Id. at 737. Moses E. Herzog, the fictional protagonist of Saul Bellow’s novel Herzog, authored numerous strongly-worded letters that he never sent.

17.Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009).

18.Id. at 2.

19.81 Fed. Reg. 49556, 49565 (July 28, 2016), https://www.federalregister.gov/documents/2016/07/28/2016-17540/motions-to-reopen-removal-deportation-or-exclusion-proceedings-based-upon-a-claim-of-ineffective.

20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).

21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”

22.Private email to the author.

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Republished by permission.

As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”

This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.

Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing!

Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum.

“Lozada reform” is long overdue. But, so is meaningful EOIR reform!

Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.

Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”

🇺🇸 Due Process Forever!

PWS

10-12-22

MARCIA BROWN @ NEW REPUBLIC — There Can Be No Due Process Without An Independent Immigration Court Staffed By Qualified Judges!

https://newrepublic.com/article/159530/best-way-protect-immigrants-whims-politics

. . . .

Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”

Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”

. . . .

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Read the full article at the link.

Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’s mismanagement and misuse of the Immigration Courts.

Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.

Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!

Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.

Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!

First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.

Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.

It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.

Due Process Forever!

PWS

10-06-20

ERIC HOLDER, JR. @ WASHPOST: Former AG Blasts Chief Toady Billy Barr As Unfit For Office!

https://www.washingtonpost.com/opinions/eric-holder-william-barr-is-unfit-to-be-attorney-general/2019/12/11/99882092-1c55-11ea-87f7-f2e91143c60d_story.html

Opinions

Eric Holder: William Barr is unfit to be attorney general

12-12-19

Attorney General William P. Barr in Washington on Tuesday. (Jacquelyn Martin/AP)

By Eric H. Holder Jr.

Dec. 11, 2019 at 9:13 p.m. EST

Eric H. Holder Jr., a Democrat, was U.S. attorney general from 2009 to 2015.

As a former U.S. attorney general, I am reluctant to publicly criticize my successors. I respect the office and understand just how tough the job can be.

But recently, Attorney General William P. Barr has made a series of public statements and taken actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official that they demand a response from someone who held the same office.

Last month, at a Federalist Society event, the attorney general delivered an ode to essentially unbridled executive power, dismissing the authority of the legislative and judicial branches — and the checks and balances at the heart of America’s constitutional order. As others have pointed out, Barr’s argument rests on a flawed view of U.S. history. To me, his attempts to vilify the president’s critics sounded more like the tactics of an unscrupulous criminal defense lawyer than a U.S. attorney general.

When, in the same speech, Barr accused “the other side” of “the systematic shredding of norms and the undermining of the rule of law,” he exposed himself as a partisan actor, not an impartial law enforcement official. Even more troubling — and telling — was a later (and little-noticed) section of his remarks, in which Barr made the outlandish suggestion that Congress cannot entrust anyone but the president himself to execute the law.

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In Barr’s view, sharing executive power with anyone “beyond the control of the president” (emphasis mine), presumably including a semi-independent Cabinet member, “contravenes the Framers’ clear intent to vest that power in a single person.” This is a stunning declaration not merely of ideology but of loyalty: to the president and his interests. It is also revealing of Barr’s own intent: to serve not at a careful remove from politics, as his office demands, but as an instrument of politics — under the direct “control” of President Trump.

Not long after Barr made that speech, he issued what seemed to be a bizarre threat to anyone who expresses insufficient respect for law enforcement, suggesting that “if communities don’t give that support and respect, they might find themselves without the police protection they need.” No one who understands — let alone truly respects — the impartial administration of justice or the role of law enforcement could ever say such a thing. It is antithetical to the most basic tenets of equality and justice, and it undermines the need for understanding between law enforcement and certain communities and flies in the face of everything the Justice Department stands for.

It’s also particularly ironic in light of the attorney general’s comments this week, in which he attacked the FBI and the Justice Department’s Office of the Inspector General — two vital components of his own department. Having spent the majority of my career in public service, I found it extraordinary to watch the nation’s chief law enforcement official claim — without offering any evidence — that the FBI acted in “bad faith” when it opened an inquiry into then-candidate Donald Trump’s campaign. As a former line prosecutor, U.S. attorney and judge, I found it alarming to hear Barr comment on an ongoing investigation, led by John Durham, the U.S. attorney in Connecticut, into the origins of the Russia probe. And as someone who spent six years in the office Barr now occupies, it was infuriating to watch him publicly undermine an independent inspector general report — based on an exhaustive review of the FBI’s conduct — using partisan talking points bearing no resemblance to the facts his own department has uncovered.

When appropriate and justified, it is the attorney general’s duty to support Justice Department components, ensure their integrity and insulate them from political pressures. His or her ultimate loyalty is not to the president personally, nor even to the executive branch, but to the people — and the Constitution — of the United States.

Career public servants at every level of the Justice Department understand this — as do leaders such as FBI Director Christopher A. Wray and Inspector General Michael Horowitz. Their fidelity to the law and their conduct under pressure are a credit to them and the institutions they serve.

Others, like Durham, are being tested by this moment. I’ve been proud to know John for at least a decade, but I was troubled by his unusual statement disputing the inspector general’s findings. Good reputations are hard-won in the legal profession, but they are fragile; anyone in Durham’s shoes would do well to remember that, in dealing with this administration, many reputations have been irrevocably lost.

This is certainly true of Barr, who was until recently a widely respected lawyer. I and many other Justice veterans were hopeful that he would serve as a responsible steward of the department and a protector of the rule of law.

Virtually since the moment he took office, though, Barr’s words and actions have been fundamentally inconsistent with his duty to the Constitution. Which is why I now fear that his conduct — running political interference for an increasingly lawless president — will wreak lasting damage.

The American people deserve an attorney general who serves their interests, leads the Justice Department with integrity and can be entrusted to pursue the facts and the law, even — and especially — when they are politically inconvenient and inconsistent with the personal interests of the president who appointed him. William Barr has proved he is incapable of serving as such an attorney general. He is unfit to lead the Justice Department.

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Predictably, there were were a few right wing apologias for Billy. That included a remarkable fictional piece by reliable rightest toady and stout defender of autocracy Hugh Hewitt, also in the Post. https://www.washingtonpost.com/opinions/2019/12/11/barrs-focus-abuses-by-fbi-is-entirely-warranted/

Since there is neither legal nor intellectual defense for the vicious attack on our institutions by Trump & Barr, in a misguided effort to “present both sides” of an “argument” where the facts all point one way, the Post has been reduced to giving space to disingenuous right wing hacks like Hewitt.

One the flip side, keeping track of all of the cogent criticisms of Toady Billy’s attacks on America and his own Department would be a full time job. One of the best of this huge field was by a group of former GOP DOJ leadership “alums” who ripped into Barr’s total lack of integrity. https://www.law.com/nationallawjournal/2019/12/10/former-justice-dept-leaders-slam-barrs-commentary-on-inspector-generals-report/

Here’s an excerpt from that article:

Jonathan Rose, who served under the Reagan administration as the assistant attorney general in charge of the Justice Department’s Office of Legal Policy, said the inspector general’s report “rebuts in detail the AG’s charge that the FBI’s investigation of the 2016 Trump campaign was unjustified, overly intrusive, or systematically suppressed exculpatory evidence.”

“This is the first attorney general in the history of presidential impeachment proceedings to enlist as a partisan warrior on behalf of a President. It is a sad day for those of us who revere the historic commitment of the FBI and the Department of Justice to even-handed law enforcement based on truth and verifiable facts,” said Rose, who had previously served under the Nixon administration as the deputy associate attorney general.

Donald Ayer, who served as deputy attorney general under the George H.W. Bush administration, said Barr’s reaction to the inspector general’s report was reminiscent of his handling of Special Counsel Robert Mueller’s report on the Russia investigation. Ahead of the Mueller report’s release, Barr came under criticism for mischaracterizing the report’s findings.

Ayer, a former Jones Day partner who now teaches at Georgetown Law, said the inspector general’s exhaustive investigation showed that the Russia investigation was “properly initiated based on a sound factual basis, and that the allegations of ‘witch hunt’ and bias on the part of those overseeing it are without foundation.”

“Rather than focus on those critical findings which should reassure all Americans, Barr dwells entirely on the report’s further findings that some agents (who he describes as a ‘small group of now-former’ FBI employees) were guilty of misconduct in the manner in which they put forward evidence in some submissions to the [Foreign Intelligence Surveillance Act] court,” Ayer said, referring to the secretive court tasked with weighing warrant applications filed under the surveillance law.

I personally knew and worked with both Jon Rose and Don Ayer. We were all partners at Jones Day’s D.C. Office in the 1990’s.

We also all served in Senior Executive positions in the DOJ during the Reagan Administration. I knew Don better than Jon. I believe he adjudicated a grievance case that I was handling for the “Legacy INS” during my tenure as Deputy General Counsel. My recollection is that case was one of those stemming from the massive “Attorney Reorganization” that Mike Inman and I implemented to unite all INS Attorneys under the General Counsel’s supervision as part of the “Litigation and Legal Advice Offices,” the actual forerunners of today’s Offices of Chief Counsel at DHS!

Another of those cases actually reached a U.S. District Court in Pittsburgh where I was the Government’s “star witness.” I was found “credible” by the District Judge in his ruling in favor of INS Management.

However, admittedly, about 20 minutes into my answer to the Assistant U.S. Attorney’s first question, the Judge interrupted and said something like: “Counsel, could you instruct your witness to stop the history lesson and just answer the question asked?” Ah, the hazards of witnesses who “know too much.”

Of course, I also served at the DOJ under Eric Holder twice: once when he was the Deputy Attorney General during the Clinton Administration and again during his tenure as Attorney General under Obama.

PWS

12-12-19

BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”

By Paul Wickham Schmidt

Exclusive for immigrationcourtside.com

Nov . 7, 2019. In a little noticed move, “Trump Chump” Attorney General Billy Barr in October advanced conservative GOP appointed Appellate Immigration Judge Garry D. Malphrus to the position of Acting Chair of the Board of Immigration Appeals in Falls Church Virginia. The move followed the sudden reputedly essentially forced “retirement” of former Chair David Neal in September.

Notably, Barr bypassed long-time BIA Vice Chair and three-decade veteran of the Executive Office for Immigration Review (“EOIR”) (which “houses” the BIA) Judge Charles “Chuck” Adkins-Blanch to elevate Judge Malphrus. Increasingly, particularly in the immigration area, the Trump Administration has circumvented bureaucratic chains of command and normal succession protocols for “acting” positions in favor of installing those committed to their restrictionist political program.

Like former Chair Neal, Vice Chair Adkins-Blanch has long been rumored not to be on the “Restrictionist A Team” at EOIR. Apparently, that’s because he occasionally votes in favor of recognizing migrants’ due process rights and for their fair and impartial treatment under the immigration laws.

For example, although generally known as a low-key “middle of the road jurist,” Vice Chair Adkins-Blanch authored the key BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). There, the BIA recognized the right of abused women, particularly from the Northern Triangle area of Central America, to receive protection under our asylum, and immigration laws. That decision was widely hailed as both appropriate and long overdue by immigration scholars and advocates and saved numerous lives and futures during the period it was in effect. It also promoted judicial efficiency by encouraging ICE to not oppose well-documented domestic violence cases.

Nevertheless, in a highly controversial 2018 decision, White Nationalist restrictionist Attorney General Jeff Sessions dismantled A-R-C-G-. This was an an overt attempt to keep brown-skinned refugees, particularly women, from qualifying for asylum. Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018). Session’s decision was widely panned by immigration scholars and ripped apart by U.S. District Judge Emmet Sullivan, the only Article III Judge to address it in detail to date, in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Nevertheless, Matter of A-B- remains a precedent in Immigration Court.

In addition to the Malphrus announcement, sources have told “Courtside” that veteran BIA Appellate Immigration Judges John Guendelsberger and Molly Kendall Clark will be retiring at the end of December. While the current BIA intentionally has been configured over the past three Administrations to have nothing approaching a true “liberal wing,” Judges Guendelsberger and Kendall Clark were generally perceived as fair, scholarly, and willing to support and respect individual respondents’ rights, at least in unpublished, non-precedential decisions.

This was during an era when the BIA as a whole was moving in an ever more restrictive direction, seldom publishing precedent decisions favoring or vindicating the rights of individuals over DHS enforcement. Additionally, under Sessions and now Barr, the BIA has increasingly been pushed aside and given the role of “restrictionist enforcer” rather than “expert tribunal.” The most significant policies are rewritten in favor of hard-line enforcement and issued as “precedents” by the Attorney General, sometimes without any input or consultation from the BIA at all.

The BIA’s new role evidently is to insure that Immigration Judges aggressively use these restrictionist precedents to quickly remove individuals without regard to due process. Apparently, this new role also includes promptly reversing any grants of relief to individuals, thus insuring that ICE Enforcement wins no matter what, and actively discouraging individuals from daring to use our justice system to assert their rights. To this end, Barr’s six most recent judicial appointments to the BIA, part of an obvious “court-packing scheme,” are all Immigration Judges with asylum denial rates far in excess of the national average and reputations for being unsympathetic, sometimes also rude and demeaning, to respondents and their attorneys.

Indeed, adding insult to injury, Barr’s latest regulatory proposal would give a non-judicial official, the EOIR Director, decisional and precedent setting authority over the BIA in certain cases. This directly undoes some of the intentional separation of administrative and judicial functions that had been one of the objectives of EOIR.

Judge Guendelsberger was originally appointed to the BIA by the late Attorney General Janet Reno in 1995. However, as a member (along with me) of the notorious due process oriented “Gang of Five,” he often wrote or joined dissents from some of the BIA majority’s unduly restrictive asylum jurisprudence. Consequently, Judge Guendelsberger and the rest of the “Gang” were “purged” from the BIA by Attorney General John Ashcroft in 2003.

Reassigned to “re-education camp” in the bowels of the BIA, Judge Guendelsberger worked his way back and was “rehabilitated” and reappointed to the BIA by Attorney General Eric Holder in August 2009. This followed several years as a “Temporary Board Member,” (“TBM”). The TBM is a clever device used to conceal the dysfunction caused by the Ashcroft purge by quietly designating senior BIA staff as judges to overcome the shortage caused by the purge and irrational BIA “downsizing” used to cover up the political motive for the purge. TBMs are also disenfranchised from voting at en banc, thus insuring a more compliant and less influential temporary judicial workforce.

Judge Guendelsberger was the only member of the “Gang of Five” to achieve rehabilitation. However, his former “due process fire” was gone. In his “judicial reincarnation” he seldom dissented from BIA precedents. He even joined and authored decisions restricting the ability of refugees to qualify for asylum based on persecution from gangs that the governments of the Northern Triangle were unwilling or unable to control or were actually using to achieve political ends.

Indeed, his later public judicial pronouncements bore little resemblance to the courageous and often forward-looking jurisprudence with which he was associated during his “prior judicial life” with the “Gang of Five.” Nevertheless, he continued to save lives whenever possible “under the radar screen” in his unpublished decisions, which actually constitute the vast bulk of a BIA judge’s work.

Judge Kendall Clark was finally appointed to a permanent BIA Appellate Judgeship by Attorney General Loretta Lynch in February 2016, following a lengthy series of appointments as a TBM. Perhaps because of her disposition to recognize respondents’ rights in an era of sharp rightward movement at the BIA, she authored few published precedents.

However, she did write or participate in a number of notable unpublished cases that saved lives at the time and advanced the overall cause of due process. She also had the distinction of serving as a Senior Legal Advisor to four different BIA Chairs (including me) from 1995 to 2016.

Thus, the BIA continues its downward spiral from a tribunal devoted to excellence, best practices, due process, and fundamental fairness to one whose primary function is to serve as a “rubber stamp” for White Nationalist restrictionist enforcement initiatives by DHS. The voices of reasonable, thoughtful, scholarly jurists like Judges Guendelsberger and Kendall Clark will be missed.

They are some of the last disappearing remnants of what EOIR could have been under different circumstances. Their departure also shows why an independent Article I Judiciary, with unbiased judges appointed because of their reputations for fairness, scholarship, timeliness, teamwork, and demonstrated respect for the statutory and constitutional rights of individuals, is the only solution for the current dysfunctional mess at EOIR.

PWS

11-07-19

Is Jeff Sessions About To Go After Tax Credits For U.S. Citizen Kids To Fund “The Wall?” — Sessions’s Motives Questioned — CA Girds For Legal Battle With USDOJ! — Trump Administration Fuels Federal Civil Litigation Bonanza!

http://theweek.com/speedreads/694129/sessions-says-mexicans-pay-border-wall-way-another

Bonnie Kristian reports in TheWeek.com:

“We’re going to get paid for it one way or the other,” Attorney General Jeff Sessions said of President Trump’s proposed border wall while speaking with ABC’s George Stephanopoulos on Sunday. After raising the issue, Stephanopoulos asked if Sessions has any evidence Mexico will fund construction, as Trump repeatedly promised on the campaign trail.

Sessions conceded he does not expect the government of Mexico to “appropriate money,” but maintained the United States has other options to get money from Mexicans. We could “deal with our trade situation to create the revenue,” he suggested, or, “I know there’s $4 billion a year in excess payments,” Sessions continued, “tax credits that they shouldn’t get. Now, these are mostly Mexicans. And those kind of things add up — $4 billion a year for 10 years is $40 billion.”

Sessions appears to be referencing a 2011 audit report Trump also cited while campaigning. As Politifact explains, the report said that in 2011, $4.2 billion in child tax credits was paid to people filing income taxes using an Individual Taxpayer Identification Number (ITIN) instead of a Social Security number. Some of these filers are illegal immigrants, but many are legal foreign workers, and the audit did not say how many are Mexican.

“The vast majority of that $4.2 billion, the filer may be undocumented, but you have to have a child to receive it,” said Bob Greenstein of the Center on Budget and Policy Priorities. “And the children are overwhelmingly U.S. citizens.” Watch an excerpt of Sessions’ remarks below. Bonnie Kristian”

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Go to the above link to see the ABC clip that Kristian references at the end of her article.

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Reaction from Daily Kos wasn’t very subtile. Here’s Gabe Ortiz’s “headliner:”

“Racist-as-all-hell Sessions: Child tax credits going to ‘mostly Mexicans’ can pay for the wall”

Read Ortiz’s article here:

http://www.dailykos.com/story/2017/04/24/1655786/-Racist-as-all-hell-Sessions-Tax-credits-to-mostly-Mexicans-can-pay-for-the-wall

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Ortiz isn’t the only one to publicly “call out” Sessions’s motivation for his almost daily attacks on immigrants. Here’s what California State Senate leader Kevin de Leon (D-Los Angeles) had to say, as reported in the L.A. Times: “It has become abundantly clear that Atty. Gen. [Jeff] Sessions and the Trump administration are basing their law enforcement policies on principles of white supremacy — not American values. . . .”

Read the full L.A. Times article, including Republican reaction to de Leon’s remarks, here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-senate-leader-says-white-1492803106-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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De Leon was not the only California public official to strike back at Sessions’s attack on so-called “Sanctuary cities” last week. As reported in the L.A. Times, in a “Battle of the AGs:”

“[California Attorney General Xavier] Becerra said on Friday that threats to withhold federal funds from states and cities that limit cooperation with federal immigration authorities are reckless and undermine public safety.

. . . .

Becerra said Sunday that California is ready to fight any attempt to withhold federal funds.

“Whoever wants to come at us, that’s hostility, we’ll be ready,” Becerra said. “We’re going to continue to abide by federal law and the U.S. Constitution. And we’re hoping the federal government will also abide by the U.S. Constitution, which gives my state the right to decide how to do public safety.”

The state attorney general was skeptical about comments by President Trump in recent days that so-called Dreamers —young immigrants brought to this country illegally by a parent — will not be targeted for immigration enforcement.

“It’s not clear what we can trust, what statement we can believe in, and that causes a great deal of not just anxiety, but confusion — not just for those immigrant families, but for our law enforcement personnel,” Becerra said.

He also denounced the Trump proposal to build a wall at the U.S.-Mexico border as a “medieval solution” to immigration issues, adding that neither U.S. taxpayers nor Mexico want to pay for the proposal.”

Read there full report here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-u-s-atty-gen-sessions-disputes-1492964508-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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I reported some time ago that California was “lawyering up” by hiring none other than former U.S. Attorney General Eric Holder to advise on litigation strategies to resist the Fed’s efforts to punish “sanctuary jurisdictions.” Here’s a link to my earlier blog: http://wp.me/p8eeJm-4w.

Lots of Attorneys General and former Attorneys General could be involved in this one before it’s over! As I’ve said from the beginning, whatever he might do for U.S. workers, President Trump is a huge boon to the legal industry! If you doubt this, just go on over to TRAC Immigration and see how civil immigration litigation has increased dramatically under Trump. http://trac.syr.edu/immigration/reports/467/ . (Thanks to Nolan Rappaport for forwarding this to me!)

Instead of solving legal problems, it appears that A.G. Jeff “Gonzo-Apocalypto” Sessions is fixated on going to war with the “other America” that doesn’t share his and Trump’s negative views of immigrants. Stay tuned!

PWS

04-24-17

U.S. IMMIGRATON COURTS: She Must Have Had Writer’s Cramp — EOIR Swears In 14 New Judges Appointed By Former AG Lynch — Almost All From Government Backgrounds!

https://www.justice.gov/eoir/pr/executive-office-immigration-review-swears-14-immigration-judges

“FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the investiture of 14 new immigration judges. Chief Immigration Judge MaryBeth Keller presided over the investiture during a ceremony held April 7, 2017, at EOIR headquarters in Falls Church, Va.

After a thorough application process, former Attorney General Loretta E. Lynch appointed Justin F. Adams, Edward M. Barcus, Paula J. Donnolo, Lauren T. Farber, Paul M. Habich, Cara O. Knapp, Maria Lurye, Anthony E. Maingot, Sarah B. Mazzie, Matthew E. Morrissey, An Mai Nguyen, Sean D. Santen, Stuart A. Siegel, and Gwendylan E. Tregerman to their new positions.

“We are happy to welcome these 14 appointees to our growing immigration judge corps,” said Keller. “These new immigration judges will enhance the agency’s ability to process detained cases, our highest priority, while also strengthening the agency’s capacity to address its broader pending caseload.”

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First, congratulations to all of the new U.S. Immigration Judges. While these days, probably nobody at DOJ or EOIR will tell you, the “Vision” of the U.S. Immigration Court is: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Please don’t forget that, and always let fairness and due process be your guide and inspiration!

Read the new U.S. Immigration Judges’ bios in the full press release at the above link. Interestingly, EOIR seems to have stopped furnishing information on the total number of Immigration Judges on the bench. But, by my “rough count,” it’s around 319. Also, by my “rough count” that would leave around 55 existing judicial vacancies in the U.S. Immigration Courts.

While former AG Lynch had a flurry of last minute appointments, the record will reflect that under her leadership, the DOJ & EOIR did an exceptionally poor job of filling new positions and getting additional Immigration Judges on the bench. The last minute appointments and unfilled judicial positions were from a group of additional positions provided to DOJ/EOIR by Congress some time ago. After years of moaning and groaning about lack of judicial positions, the DOJ/EOIR system was unable to deal with success. To state the obvious: If they can’t fill the ones they have now, why give them more?

Also, without taking anything away from the new judges, this set of appointments continues a two-Administration “tradition” of largely excluding qualified individuals from private practice, academia, and NGOs from the Immigration Judiciary. Although they had ample chance to do so, both former Attorney General Eric Holder and Lynch failed to address, and in fact participated in, this patent unfairness which has a tendency to skew due process in the Immigration Court system at both the trial and appellate levels. Shame on them!

I’ll keep saying it: We need an independent Article I U.S. Immigration Court that operates in much the same manner as the Article III Courts! There is simply no justification for the current sad state of the U.S. Immigration Court system where due process and professional court administration have needlessly deteriorated over Administrations of both parties. Both the public and the individuals who depend on the U.S. Immigration Courts for due process deserve better!

PWS

04/11/17

🇺🇸 Due Process Forever!

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