Government Executive – immigrationcourtside.com

🏴‍☠️🆘 AMERICAN NIGHTMARE: THIS DEADLY ☠️🤮 “CLOWN SHOW” 🤡 IS A “COURT” SYSTEM? — You’ve GOT To Be Kidding! — “’Everyone feels the message is, nobody cares if you die as long as we get our numbers,’ said one worker in the office. . . . ‘I feel like half the time, I’m working on Trump’s reelection,’ said an employee in the office who spoke anonymously because of concerns about retaliation. ‘This is just a piece for him to tout when reelection time comes up about how much he’s getting done.’” — Politico’s Betsy Woodruff Swan Takes Us Inside “HQ” In America’s Most Morally Corrupt Court System, Where “Trumpian” Contempt For Due Process & Human Lives ☠️ Extends To Its Own Employees, Many Of Them Lower-Paid Clerical Staff!

https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075

Betsy Woodruff Swan reports for Politico:

The union for lawyers and support staff who handle Justice Department immigration appeals says their office’s working conditions put workers’ lives in danger. And employees in the DOJ office handling those immigration appeals said many suspect it’s because the department prioritizes high deportation numbers over worker safety.

“I feel like half the time, I’m working on Trump’s reelection,” said an employee in the office who spoke anonymously because of concerns about retaliation. “This is just a piece for him to tout when reelection time comes up about how much he’s getting done.”

It’s an accusation a spokesperson for the office vehemently denied. But the conflict is no longer being kept in the DOJ family; the president of that union recently filed a complaint with the Occupational Safety and Health Administration (OSHA), saying management requires too many people to come into the office, putting workers at risk of contracting Covid-19, the sickness caused by the novel coronavirus. Concerns in the office about worker safety were first reported by Government Executive.

At issue are working conditions in DOJ’s Executive Office for Immigration Review (EOIR). The office oversees America’s immigration courts––which are part of the Justice Department––and lawyers there handle appeals from immigrants fighting deportation orders. Those courts face a mammoth backlog of more than one million cases, by Syracuse University’s count. Despite hiring more immigration judges, the backlog has doubled under the Trump administration.

EOIR leaders have maximized how much telework employees there can do, the spokesperson said, adding that the office “takes the safety, health, and well-being of its employees very seriously.”

But the OSHA complaint, which Politico reviewed, says the office is violating a federal law mandating workplaces be free of “hazards that are causing or are likely to cause death or serious physical harm.”

“The agency’s actions described below are proliferating the spread of a known and deadly contagion both within our building and to our surrounding communities,” the complaint reads. The office policies “are expected to result in death and severe health complications and/or possible life-long disabilities,” it says.

The office requires most support staff to come in, rather than telework, as they deal with physical pieces of paper and files as part of their work, per the complaint. The few who can work from home can only do so once a week, and on rotating days because they share the same laptop, the complaint reads. At work, support staff sit in cubicles in a shared area, “in direct breathing paths of each other,” it says.

Nancy Sykes, the president of American Federation of Government Employees Local 3525, filed the complaint on behalf of the union. It represents non-managerial Board of Immigration Appeals employees in the office, including attorneys, paralegals, clerks, and legal assistants.

The EOIR spokesperson, meanwhile, said the office is working to implement coronavirus guidance from the Centers for Disease Control and Prevention, the Office of Personnel Management, and the General Services Administration.

. . . .

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

Read the rest of Betsy’s report at the link. Long a superstar at The Daily Beast, and an articulate “repeat panelist” on “Meet the Press” with Chuck Todd, it’s great to have Betsy “back on the immigration beat” as a part of her “new portfolio” over at Politico. I’ve always found Betsy’s clear prose and insightful analysis enlightening!

Typically within the Trump immigration kakistocracy, the harshest consequences fall jump-on the most vulnerable. In Immigration Court, it’s often unrepresented asylum seekers, some of them mere children, being railroaded through the system with regard to neither due process nor a legally correct application of asylum law. Here, the brunt of the latest EOIR assault on human dignity during the pandemic appears to fall on the support staff at the “bottom of the totem pole” of EOIR’s “bloated at the top,” yet astoundingly misdirected and consequently inefficient, bureaucracy. What a way to run the railroad — even a “Deportation Railroad!” 🚂

As my good friend and Round Table colleague, Judge Jeffrey Chase said: “In spite of having very genuine concerns, the BIA staff are generally off the radar. Thanks to Betsy for spotlighting them. The BIA staff union and the NAIJ put out a joint statement yesterday; let’s hope this begins a period of increased communication and cooperation.”

Many of us “old timers” remember a bygone era when the BIA staff was considered one of the premier places for career attorneys to work at the DOJ. This was largely because staff were treated “like family.” The BIA, in cooperation with the union, actually “pioneered” things like “flexible work schedules” and “work from home” at the DOJ. That union (of which I actually was among the “founding members” back in the 1970’s) was perhaps the first one at the DOJ to represent the interests of both attorneys and support staff. Those times sadly are long gone.

As I’ve mentioned before, under the Trump regime, EOIR “non-management” employees at all levels levels are treated with a disrespect, intentional demeaning, and callous disregard for health and welfare usually reserved for those poor souls trapped in what passes for an immigration justice system under the White Nationalist driven Trump regime. Risking employees’ lives to promote Trump’s reelection agenda? That’s actually illegal on a number of accounts. But, don’t expect any corrective actions in an era where the “rule of law” has been willfully distorted and undermined as Congress and the Article IIIs simply melt away under Trump’s contemptuous scofflaw onslaught.

Unhappily, as Betsy’s article highlights, there appears to be little chance of meaningful change unless and until enough employees actually start dropping dead, by which time it will be too late.

But, as I keep pointing out, there are “other villains” here. Despite DOJ/EOIR efforts to suppress truth, all of this basically is happening in “plain sight,” as we know from folks like Judge Ashley Tabaddor, the NAIJ, the BIA union, former Judges on the Round Table who are speaking out, courageous employees willing to “blow the whistle” anonymously, as well as reporters like Betsy, Erich Wagner at Government Executive (who “broke” this story), and Malathi Nayak at Bloomberg News, to name just a few. The unconstitutional mockery of Due Process, immigration, and asylum laws in Immigration Court hearings is documented in verbatim transcripts available to the Article III Courts and the Congress.

Yet, Congress and the Article III Courts let these grotesque abuses within our justice system go on largely unabated. It’s a disgusting and disturbing saga of the breakdown of America’s democratic institutions and their replacement by an authoritarian, “Third-World style” kakistocracy, headed by a dangerously incompetent and unrestrained clown 🤡 whom those charged with protecting us and our institutions refuse to hold accountable.

This November, vote like your life depends on it! Because it does!🇺🇸 We need “regime change” at all levels. And, that certainly includes a better, more courageous, more scholarly Federal Judiciary that understands immigration and human rights, believes in Due Process and fundamental fairness for all under law, and will finally stand up and put an end to these gross abuses if Congress doesn’t act first. Obviously, it’s also essential to get a new Executive committed to advancing, rather than destroying, our Constitution and the rule of law and who will strive for best, rather than worst, practices in all phases of government.

Due Process Forever! Clown Courts 🤡☠️ Never!

PWS

04-23-20

LAURA LYNCH @ AILA REPORTS: 1) NAIJ Takes Unprecedented Step Of Filing Amicus Brief In Pending USDC Litigation On Immigration Courts; 2) The Dangerous Clown Show 🤡 Continues At EOIR! ☠️⚰️

Flagging the following updates:

(1) Last evening, NAIJ filed an amicus brief in NIPNLG et. al. vs. EOIR et. al..

Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

(2) Also see Government Executive article below.

Erich Wagner
Staff Writer
Government Executive

Despite Coronavirus, ‘The Machinery Continues’ at Immigration Courts – April 20, 2020

Immigration judges and employees at the Executive Office of Immigration Review said the agency’s informal policy to keep offices and courts open puts deportations over workers’ safety.

APRIL 20, 2020 05:31 PM ET

For weeks, employees at the Executive Office of Immigration Review’s immigration courts and offices have noticed a trend: whenever someone exhibits coronavirus symptoms, the agency quietly shuts the facility down for a day or two, cleans the office, and then reopens.

The frequency of these incidents, combined with the apparent refusal by management to take more proactive steps, like temporarily closing immigration courts altogether or instituting telework for EOIR support staff, have employees and judges fearing that the Trump administration is more concerned with keeping up the volume of immigration case decisions than the health of its own workforce.

Since Government Executive first reported on an instance of an employee with COVID-19 symptoms at a Falls Church, Virginia, EOIR office last week, there have been three additional incidents at that facility, including one where the person eventually tested positive for coronavirus. An office in the Dallas-Fort Worth area also was closed for two days in March after someone exhibited symptoms of the virus.

Additionally, the agency has announced on its official Twitter account more than 30 immigration court closures, most only for one or two days, across the country. Although in most instances officials do not explain the closures, National Association of Immigration Judges President Ashley Tabaddor said that if there is no reason listed, “you can be sure” it is a result of coronavirus exposure.

“Everything is reactive,” Tabbador said. “They put everyone at risk, and then when there’s an incident reported, they shut down the court for a day and then force people to come back to work. At Otay Mesa [in San Diego] there’s a huge outbreak, but they still haven’t shared that information . . . Sometimes we get the info and sometimes we don’t, so we don’t know how accurate or complete it is. There’s no faith that everyone who needs to be notified has been notified.”

Nancy Sykes, president of the American Federation of Government Employees Local 2525, which represents staff at EOIR’s office in Falls Church said the amount of information provided to employees about coronavirus-related incidents has actually decreased in recent weeks. Although after the first incident, EOIR Director James McHenry emailed staff and provided information about when the employee was symptomatic and in the office, subsequent notifications were sent out by Acting Board of Immigration Appeals Chairman Garry Malphrus and omitted key information about when symptomatic individuals were in the building.

“Employees are scared, they’re concerned,” Sykes said. “They don’t really trust what’s coming from management just because of the lack of details being shared. There’s a lag in information: by the time something is revealed, so much time has passed, so nobody’s clear how that process works and why it takes so long to get notice out to employees.”

In a statement, EOIR spokeswoman Kathryn Mattingly said that the agency “takes the safety, health and well-being of employees very seriously,” but that the workforce is critical to ensuring the due process of detained suspected undocumented immigrants.

“Accordingly, EOIR’s current operational status is largely in line with that of most courts across the country, which have continued to receive and process filings and to hold critical hearings, while deferring others as appropriate,” Mattingly wrote. “Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few courts have closed completely.”

A Series of Half Measures

Agency management has taken some steps to mitigate employees’ exposure to COVID-19. On March 30, the agency postponed all hearings related to individuals who are not being detained while they await adjudication. The agency is also encouraging the use of teleconferencing, video-teleconferencing and the filing of documents by mail or electronically, and some attorneys, paralegals and judges have been able to make use of telework to reduce the amount of time they spend in the office.

But thus far, the agency has refused to postpone hearings for detained individuals, a matter that is now the subject of a federal lawsuit brought by immigration advocates and attorney groups. And the agency has denied telework opportunities to support staff in EOIR offices and immigration courts across the country.

Sykes said the lack of telework is in part a capacity issue—the agency does not have the amount of laptops on hand to distribute to employees. But she suggested that local management may be prohibited from encouraging workplace flexibilities by agency or department leadership.

“We’ve asked management about doing something where you could have employees come in shifts every other day, or over a week’s time in rotation to pick up and drop off work materials, so that there’s less exposure when coming into the office,” she said. “But they said they have not been authorized to make those types of changes to our business. When my board management says they don’t have the authority, that means it’s over their heads.”

Tabaddor said she has heard similar stories that everything judges and supervisors authorize regarding coronavirus response must be “cleared” by someone up the chain of command.

“Supervisory judges, our first line of supervisory contact, they were told that they cannot put anything in writing about the pandemic or COVID,” she said. “Anything they want to do related to that has to be cleared by HQ and, essentially, the White House. So, to date, they haven’t been told what standards and protocols are to be used. The only thing they’ve been told is if there’s a report of any incident, they are to kick it up to HQ and wait for instructions.”

On Monday, McHenry sent an email to EOIR employees announcing that the agency has ordered face masks for employees to wear when they report to the office, and said they would be available “next week.”

“Once delivered, supervisors will provide their staff with information regarding distribution to employees who are not telework eligible and are working in the office,” McHenry wrote. “Even while using face coverings, however, please continue to be vigilant in maintaining social distancing measures to the maximum extent practicable and in following CDC guidance.”

Production Over People

Agency employees said what they have seen over the last month suggests that the agency is prioritizing working on its more than 1 million case backlog, and enabling the Homeland Security Department to continue to apprehend suspected undocumented immigrants, at the expense of the wellbeing of its workforce.

“Everything is designed under the rubric that the show must go on,” Tabbador said. “While we’ve been focused on public health first . . . the department says, ‘Nope, we need to make sure that the machinery continues. To the extent that we can acknowledge social distancing as long as business continues, we can do it. But between business and health considerations, business as usual supersedes health.”

Sykes said the agency’s resistance to making basic changes to protect its employees is troubling.

“To me, the only other explanation is the immense backlog that we have of immigration appellate cases building up, and the need to continue working on that backlog even in light of the current pandemic,” she said. “It’s very unnerving, because I believe this will continue, and I don’t have any other indication that we’re not going to just continue operations as is. We now finally have a confirmed case [in the building] and there’s still no change.”

In an affidavit filed in response to the lawsuit seeking to postpone immigration court hearings for detained individuals, McHenry said he has given individual immigration courts leeway to respond as needed to the COVID-19 outbreak in their communities.

“Because COVID-19 has not affected all communities nationwide in the same manner and because EOIR’s dockets vary considerably from court to court, the challenges presented by COVID-19 are not the same for every immigration court,” McHenry wrote. “In recognition of these variances and of the fact that local immigration judges and court staff are often in the best position to address challenges tailored to the specifics of their court’s practices, EOIR has not adopted a ‘one size fits all’ policy for every immigration court, though it has issued generally-applicable guidance regarding access to EOIR space, the promotion of practices that reduce the need for hearings, and the maximization of the use of telephonic and means through which to hold hearings.”

But he also suggested it could hamper the work of Immigration and Customs Enforcement and the ability of the Border Patrol to keep arresting suspected undocumented immigrants.

“The blanket postponement of all detained cases in removal proceedings, including initial master calendar hearings for aliens recently detained by DHS, would make it extremely difficult for DHS to arrest and detain aliens prospectively, even aliens with significant criminal histories or national security concerns, because of the uncertainty of how long an alien would have to remain in custody before being able to obtain a hearing in front of an [immigration judge] that may lead to the alien’s release,” he wrote.

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

Thanks, Laura, for “packaging” this so neatly for further distribution! And many thanks to Erich Wagner over at Government Executive for “keeping on” this story he originally reported and that I also posted @ Courtside. https://wp.me/p8eeJm-5mO

Nice to know that someone is looking out for the public interest here, even if EOIR isn’t.

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

Wow, these self-serving “GrimGrams” ☠️⚰️ from McHenry must be very comforting to the EOIR employees 😰🧫 whose health 🤮 and safety ☠️ is on the line, not to mention the possibility that they will eventually infect their own families.😰

Deportations over safety, sanity and public health at EOIR. It’s just “business as usual” in the Clown Courts! 🤡

We should also take McHenry’s claims that he’s anxious to get folks out on bond with a big grain of salt. 🤥🤥🤥🤥🤥 Just recently, the BIA went out of its way to insure that even asylum seekers who had established “credible fear” of persecution would be unlikely to get released on bond. See, e.g., 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/

After all, we must remember that the only function of these bogus “courts” at EOIR under the Trump regime is to serve the supposed needs of their “partners” and overlords at DHS Enforcement 👮🏼. But, it’s fair to point out that many ICE employees also don’t see the need to put their lives and the lives of others at risk merely to “punch one more ticket” for the Deportation Railroad. 🚂 See, e.g., https://immigrationcourtside.com/2020/04/04/as-u-s-district-judges-dither-dysfunctional-immigration-courts-threaten-nations-health-safety-i-think-its-about-time-the-american-people-woke-up-to-the-fact-that-eoir/

Due Process Forever! Clown Courts 🤡 Never!

PWS

04-21-20

“GOVERNMENT EXECUTIVE” SPOTLIGHTS EOIR HQ’s CORONAVIRUS “PLAN” — “[C]lose your eyes and cross your fingers”** 🤡☠️🤡☠️🤡☠️🤡

** Quote from a member of the Round Table of Retired Immigration Judges

https://www.govexec.com/management/2020/04/immigration-review-office-remains-open-despite-potential-covid-19-exposure/164584/

Erich Wagner reports for Government Executive:

Immigration Review Office Remains Open Despite Potential COVID-19 Exposure

Most support staff at the Executive Office of Immigration Review in Falls Church, Va., remain unable to telework even after two floors had to be deep cleaned after an employee exhibited coronavirus symptoms at work last week.

ERICH WAGNER | APRIL 13, 2020 05:29 PM ET

CORONAVIRUS

IMMIGRATION

TELEWORK

The agency responsible for conducting removal proceedings in immigration courts still is not providing telework for many of its employees, even after an employee exhibited coronavirus symptoms at work.

On April 8, an employee on the 20th floor of the Executive Office of Immigration Review’s office in Falls Church, Va., which the agency shares with the Social Security Administration, had symptoms consistent with COVID-19, although the employee has not been tested for the virus.

As a result, employees on that floor and the 21st and 22nd floors were temporarily sent home on weather and safety leave until contractors could conduct a deep cleaning. The 21st and 22nd floor employees returned to work Friday, while the 20th floor reopened on Monday, except to those who came in contact with the employee, who are now undergoing a 14-day quarantine.

“I want to advise you that an EOIR employee working on the 20th floor of the Skyline Tower Building has displayed symptoms of COVID-19,” wrote Executive Office of Immigration Review Director James McHenry in an email to employees last week. “The employee is now self-quarantined for two weeks and all persons identified as close contacts have been advised of their interaction with the symptomatic employee. We are conducting an enhanced cleaning of the 20th and 21st floors and the building’s common areas in compliance with [Centers for Disease Control and Prevention] guidelines. The CDC guidance does not indicate that any additional EOIR spaces would require cleaning.”

An agency employee, who requested anonymity out of fear of reprisal, said that employees on the 17th floor were told that if they were uncomfortable continuing to work in the office, they would have to take personal leave. And they said that while the attorneys and paralegals may work remotely, the agency still is not allowing most support staff and clerks to telework, citing a lack of laptops.

“Unlike at the immigration judge level, we’re still fully operational,” the employee said. “There’s been no change, no modification to the way we’re operating. We’re 100% fully staffed and we have attorneys, paralegals and support staff.”

The office remains open despite guidance from the Office of Personnel Management and the Office of Management and Budget urging agencies to “maximize telework” for employees wherever possible. Additionally, Deputy Attorney General Jeffrey Rosen and Assistant Attorney General for Administration Lee Lofthus directed Justice Department components to “move to a posture of maximum telework” in the Washington, D.C., region beginning March 16.

“Components should exploit all flexibilities in their telework policies, including adjusting duties and work to expand availability of telework to employees whose duties did not previously support telework, and even if the employee would only have enough duties to telework for part of a work day,” Lofthus wrote.

The EOIR employee said the agency has been resistant to implementing a continuity of operations plan that would prioritize detainee cases over non-detainee cases, as immigration courts have done to reduce the time needed to be in the office, and said they fear the agency is more concerned with “keeping up production numbers” than employees’ well-being.

“Why can’t we go into COOP status to minimize staff in the office?” the employee said. “We could go into only working detained cases, just like the courts, and we wouldn’t need as many staff. And with a smaller docket, maybe we could introduce rotations or stagger shifts. Right now the only option to stagger shifts is allowing some employees to work from 6 a.m. until 3 and then someone else could work later.”

The employee noted that, by comparison, when there was a positive coronavirus case among the Social Security Administration’s employees in the building, the agency completely evacuated the office, and employees have not returned since.

“Why did we come back to work so much faster [than Social Security]?” they asked. “SSA had one incident and they’re on 17 different floors, and they haven’t been back.”

The agency did not respond to a request for comment.

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

Interestingly, in past “Government shutdowns,” most EOIR HQ personnel were deemed “nonessential” and told to say home. Now, with a true emergency that could affect employee health and safety, and with the Immigration Courts’ “non-detained docket” — more than 95% of the EOIR workload — shut down, it becomes necessary to drag HQ staff in. To do what? Exactly what “essential services” are being performed that justify risking the health and safety of employees, their families, and their communities?

But, I suppose it’s no surprise that an agency sitting on a largely self-created backlog of 1.4 million cases, with no plausible plan for dealing with it, would essentially tell its own employees to “show up and hope for the best.”

PWS

04-14-20

FLRA HEARING OFFICER APPEARS TO “HOME IN” ON DISINGENUOUS ABSURDITY OF EOIR’S ARGUMENT FOR “DECERTIFYING” IMMIGRATION JUDGES’ UNION! — In Reality, Immigration “Judges” Have Been Reduced To The Status Of “Deportation Clerks” With All Meaningful Precedents & Policies Set By Unqualified & Biased Politicos On The 5th Floor Of The DOJ!

https://www.govexec.com/management/2020/01/trump-administration-makes-its-case-break-immigration-judges-union/162288/

Eric Katz reports for Government Executive:

Justice Department “simply does not want to deal with a vocal union that asserts its rights,” labor group argues at hearing.

ERIC KATZ | JANUARY 7, 2020

IMMIGRATION

UNIONS

The Trump administration argued in an executive branch court on Tuesday that the duties of immigration judges housed within the Justice Department have grown more important in the last two decades, elevating the judges to management and therefore rendering them ineligible to form a union.

The Justice lawyers and their first witness—James McHenry, the director of the Executive Office of Immigration Review, which employs the nation’s 400 immigration judges—faced pointed questions from an attorney with the Federal Labor Relations Authority who oversaw the hearing and questioned whether the judges actually set department policy. The administration first announced in August it would attempt to decertify the National Association of Immigration Judges, bringing the case to FLRA to argue the employees are not eligible to collectively bargain.

Union representatives argued at Tuesday’s hearing that their members’ duties have not fundamentally changed since 2000, when the Justice Department last attempted to decertify the union. FLRA rejected the Justice Department’s argument that year that immigration judges make policy through the issuance of decisions, noting the judges do not set precedent and their rulings are often appealed and reviewed. FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.

The arguments followed a similar path on Tuesday, though Justice attorneys and McHenry said several changes to Executive Office of Immigration Review policy and relevant precedents created an opening for a new FLRA ruling. William Krisner, the regional attorney for FLRA’s Washington office who presided over the hearing, said Tuesday morning the authority would first have to determine if anything had changed since 2000 before ruling on the merits of the case. William Brill, a Justice attorney, pointed to a 1999 streamlining effort by the department that enabled the immigration appeals board within the review office to simply affirm a judge’s ruling without issuing a separate opinion as one such change. The change was not presented during the previous FLRA case, Brill said, and was amplified in 2002 when EOIR again shifted course to allow just one board member to affirm a judge’s ruling.

Facing Brill’s questioning, McHenry said the “factual day-to-day” of immigration judges’ work has not changed since 2000 but the “legal significance of those duties” had been overhauled.

Legal changes have “fundamentally recast the nature and importance of immigration judge duties,” McHenry said.

Richard Bialczak, an attorney for the union, rejected the argument, saying Justice’s claims were nothing more than a retread.

The Trump administration is “raising the same arguments and hoping for a different outcome,” Bialczak said. “There’s no factual basis for it. The Department of Justice simply does not want to deal with a vocal union that asserts its rights.”

Brill also argued immigration judges’ workload increasingly involves issuing decisions that cannot be appealed to the Executive Office of Immigration Review’s board. While immigrants can appeal those cases to the federal circuit, Brill and McHenry said the judge’s initial ruling represents the department’s official position. Immigration judges collectively issued about 280,000 decisions in fiscal 2019, about 38% of which could not be appealed to the Board of Immigration Appeals.

Justice also pointed to Lucia v. SEC—a 2018 Supreme Court case that dictated that administrative law judges must be appointed by the president or a designated official, rather than hired normally—as relevant to immigration judges. The Executive Office of Immigration Review employees are administrative judges, not administrative law judges, but McHenry said their “duties and functions are very similar.”

“It’s difficult to conceive someone who needs to be appointed by the head of an agency but does not make management decisions,” Brill said.

Margaret Tough, another attorney for the union, countered that Lucia had no bearing on immigration judges, who are appointed by the attorney general and have been dating back prior to 2000. She and Bialczak said the judges are now under stricter oversight by management, facing new performance evaluations, quotas for their annual caseload and a restriction on speaking publicly. On cross examination, McHenry noted the judges can face discipline if their rulings are not up to acceptable standards and the board can remand cases back to them. Under their performance standards, judges cannot exceed a pre-set remand rate.

Upon follow-up questioning from Kirsner, the FLRA attorney, McHenry conceded the judges “are not supervisors.”

“Immigration judges are at the bottom of the org chart so they don’t supervise anything,” McHenry said, noting they cannot hire or fire anyone.

Tough highlighted that the Executive Office of Immigration Review has hired additional supervisory judges and under McHenry created the Office of Policy, which the agency director said was launched to “ensure better coordination of policy making within the agency.” He added, however, that adjudicatory policy making remained the sole power of immigration judges and their supervisors cannot influence the judges’ rulings.

Kirsner repeatedly sought more information on immigration judges’ power to set precedent. Generally speaking, their rulings do not influence more than the case at hand. Kirsner also clarified that unless there is a remand, their work on a case is finished after they issue a decision. Justice attorneys noted various statements in which the union suggested immigration judges should be removed from the executive branch and placed into an independent court, but Kirsner rejected them as irrelevant.

FLRA is expected to continue to hear from witnesses through Thursday before issuing a decision on the union’s fate later this year.

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

Many thanks to my long-time friend, fellow retired judicial colleague, member of the Round Table, and former NAIJ President Judge Joan Churchill for passing this along.

“Immigration judges are at the bottom of the org chart so they don’t supervise anything,” McHenry said, noting they cannot hire or fire anyone.

FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.

The above quotes “say it all” about the absurd position being argued by the DOJ. But, since neither administrative nor Article III courts hold the regime accountable for dishonesty before tribunals and engaging in frivolous litigation, like private parties would be, there is no incentive for the regime and its toadies at DOJ to stop flooding the courts with lies, misrepresentations, and meritless litigation.

Indeed, the Article IIIs unwillingness to deal “head-on” with the clearly unconstitutional nature of the Immigration Courts and their grotesque and unethical mismanagement by the DOJ have lead to an absurd growing backlog of 1.3 million cases (each involving real human lives) and the impending collapse of one of the largest sectors of the American justice system. What will it take for the “life-tenured ones in their ivory towers” to get out of the clouds and engage in the fray before it’s too late for our nation?

As I say over and over: Imagine if we had an honest Administration and Article III courts with integrity that forced the Government and private parties to work together to solve pressing legal and policy problems, particularly in the field of immigration, rather than squandering time and resources on Government-generated meritless litigation and schemes intended to collapse our entire justice system?

Worse yet, Article III Courts like the Supremes and the Fifth Circuit regularly reward the regime for its scofflaw performances, thus showing contempt for their own judicial roles, our Constitution, the rule of law, and, worst of all, for the human lives destroyed by invidiously motivated and illegal policies of the Trump regime. It also encourages this scofflaw behavior to continue and escalate.

That’s why the feeble and feckless complaints by Chief Justice Roberts about loss of respect for the courts and the ugly tenor of public discourse encouraged and engendered by the Trump regime are so discouraging and annoying. Actions speak louder than words, Chiefie! And, Trump has figured out that you’re all bluster and no backbone when it comes to standing up and speaking out in real cases about his all-out assault on American democracy!

Finally, let’s not forget that while DOJ/EOIR “management” is squandering everyone’s time on wasteful and frivolous efforts like “decertification,” here are just a few of the real management problems facing the Immigration Court system:

No e-filing system;
Growing 1.3 million case backlog, notwithstanding almost doubling the number of Immigration Judges, with no coherent plan for addressing it effectively for the foreseeable future;
Inaccurate and deficient record keeping as documented by TRAC;
Defective hearing notices;
Rock bottom judicial and staff morale, resulting in premature departure of some of the “best and brightest;”
“Single source” judicial selection process that effectively excludes non-Governmental candidates from the Immigration Judiciary;
Huge discrepancies among judges in asylum decision-making;
Continuing quality control problems with both Immigration Judges and BIA Judges misapplying basic legal standards and established precedents, as noted by Circuit Court decisions;
Problems in providing qualified in-person interpreters for hearings;
Inadequate training of Immigration Judges.

Seems like we’d all be better off if the NAIJ, rather than what passes for “EOIR management” were in charge of our Immigration Courts. And, while the FLA’s Krisner quite properly ruled it irrelevant to the proceedings before him, it’s more obvious than ever that the myriad of problems plaguing the Immigration Courts can’t and won’t be solved until there is an independent, Article I U.S. Immigration court established outside the Executive Branch!

PWS

01-10-20

EVIDENCE CONTINUES TO MOUNT OF SESSIONS’S ILLEGAL HIRING PRACTICES AT EOIR AS MORE DEMS JOIN IN REQUEST FOR IG INVESTIGATION!

https://www.govexec.com/oversight/2018/05/democrats-demand-ig-investigation-justice-hiring-practices/148055/

Eric Wagner reports for Government Executive:

A group of congressional Democrats on Tuesday asked a Justice Department watchdog to investigate allegations that the department improperly considered job candidates’ political views during the hiring process.

In a letter to Justice Department Inspector General Michael Horowitz, eight Democratic lawmakers highlighted whistleblower accounts that prospective agency employees had job offers delayed or rescinded with “explanations that suggest a pretext for improper political motives.” The move follows a similar letter sent to Attorney General Jeff Sessions last month, which lawmakers said went unanswered.

“Over the past several weeks, more whistleblowers have come forward with information that corroborates the allegations detailed in that letter [to Sessions],” the lawmakers wrote. “[Based] on these whistleblower accounts, the department may be improperly withholding or rescinding offers for these positions based on the perception that candidates hold political or ideological views that do not align with those of the Trump administration.”

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The Democrats specifically noted complaints regarding hiring at the Executive Office for Immigration Review, an agency that oversees immigration judges, and the Board of Immigration Appeals, and suggested that testimony last month from EOIR Director James McHenry denying knowledge of the consideration of ideology in the hiring process was erroneous.

“The information provided by the whistleblowers indicates that this testimony may be inaccurate: in at least some cases, inferences about an applicant’s ideological or political affiliation could be gleaned from application materials, even if such information was not required,” Democrats wrote. “The department also may be attempting to improperly screen for political or ideological preferences by changing the qualification criteria for immigration judge positions.”

The letter was signed by House Oversight and Government Reform Committee Ranking Member Elijah Cummings, D-Md.; House Judiciary Committee Ranking Member Jerrold Nadler, D-N.Y.; Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif.; Sen. Dick Durbin, D-Ill.; and Reps. Zoe Lofgren, D-Calif., Lloyd Doggett, D-Texas, Joaquin Castro, D-Texas, and Don Beyer, D-Va.

The Justice Department declined to comment on the letter.

The Justice Department, both by law and agency policy, is barred from considering a job candidate’s political views during the hiring process. But at times, the department has struggled with these rules, particularly in the Civil Rights Division and EOIR.

In 2008, a Justice Department Inspector General investigationfound that then-Attorney General Alberto Gonzalez’s aides “considered political or ideological affiliations” during immigration judge hiring. And in 2009, the OIG concluded that former acting Civil Rights Division head Bradley Schlozman similarly incorporated ideology into his hiring decisions. Last year, more than 20 progressive and public interest advocacy groups wrote to Sessions urging him not to allow candidates’ politics to influence hiring decisions in the Civil Rights Division.

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Given Sessions’s constant stream of untruths, fabrications, distorted statistics, prejudiced construction of the laws, and racist anti-immigrant alarmist fantasies, it would be little short of incredible if he were not engaging in unlawful hiring practices for U.S. Immigration Judge positions.

It’s outrageous that these important positions should be under the complete control of a political official who is leading the charge for maximum immigration enforcement. What kind of “court system” allows the chief prosecutor to 1) choose the judges, and 2) change the law and overrule judicial results he doesn’t like. It’s something truly worthy of a Kafka novel.

Jeff Sessions has no concept of “fairness,” impartiality, and true due process in the immigration context. Nor is he in any way, shape, or form qualified to be in charge of any judicial system, let alone one relating to immigration — a subject on which his overt bias, improper meddling in the supposedly impartial hearing process, and intention to misuse it as part of the Administrations’s enforcement program is crystal clear.

PWS

05-10-18

Due Process Forever! Clown Courts 🤡☠️ Never!

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