⚖️ EOIR DIRECTOR DAVID L. NEAL RESIGNS

 

Hon. David. L. Neal
Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

 

Sources tell Courtside “that David Neal is resigning as EOIR Director for health reasons, effective March 30. [Deputy Director] Mary Cheng will be Acting Director.” 

As often happens at DOJ/EOIR, there has been no “official announcement.”

Neal was appointed by A.G. Merrick Garland on September 21, 2021. He also served EOIR in the following senior leadership positions

  • Chairman, BIA (2012-2019)
  • Vice Chair, BIA (2009-2012)
  • Chief Immigration Judge (2007-2009)
  • Acting Chief Immigration Judge (2006-2007)
  • Assistant Chief Immigration Judge (2005-2006)
  • U.S. Immigration Judge (2004-2005)
  • Special Counsel to Director 

May peace, healing, and recovery be with David and his family in retirement.

🇺🇸 Due Process Forever!

PWS

03-23-24

 

⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford
Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever.  So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David  L.  Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @  GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

  1. While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
  2. Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Waiting for Godot
Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
Creative Commons Attribution-Share Alike 3.0
Waiting for Godot in Doon School.jpg Copy
[[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]]
Copy
December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23

🤯 AS EOIR SINKS INTO THE SEA OF CHAOS & INJUSTICE, GARLAND’S SOLUTION: MORE UNNEEDED BUREAUCRACY!

Hole in the head
This is how much EOIR and its long-suffering stakeholders need a “Chief of the Immigration Law Division” at EOIR!
PHOTO: EOI Teacher @ Twitter

https://www.justice.gov/legal-careers/job/supervisory-attorney-advisor-chief-immigration-law-division

Duties include but are not limited to the following:

  • Plan and direct general legal activities of the Agency with the objective of assuring that all actions taken are in accordance with law and regulation with special emphasis on assuring that actions taken conform to the basic principles of law.
  • Provide interpretation of immigration provisions, laws, and regulations to all segments of the agency.
  • Propose the development of policies and procedures in response to legal cases or problems that have the effect of substantially broadening or restricting the activities of the agency.
  • Advise the Director/Deputy and staff on the legal implications of proposed and newly enacted laws, regulations and policies that will have an impact on the operation of the agency and keeps abreast of current decisions of the courts.
  • Direct professional legal staff in the development, documentation, and operation of both internal processes and administrative/technical controls.
  • Supervise staff in the formulation and direction of proactive, time-sensitive services and/or guidance to EOIR components, unique needs of senior management and responsiveness to the Department and other government or regulatory agencies.

Qualifications:

In order to qualify for the position, you must meet the following minimum qualifications:

  • Education: Applicants must possess an LL.B. or a J.D. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

Required Experience:

For GS-15: Applicants must have four (4) full years (48 months) of post J.D. or LL.B professional legal experience. Qualifying professional legal experience includes: Direct professional legal staff in the development, documentation, and operation of both internal processes and administrative/technical controls; Advise Senior Management and staff on the legal implications of proposed and newly enacted laws, regulations and policies that will have an impact on the operation of the agency and keeps abreast of current decisions of the courts; and Plan and direct general legal activities of the Agency with the objective of assuring that all actions taken are in accordance with law and regulation with special emphasis on assuring that actions taken conform to the basic principles of law.

(Your resume must CLEARLY demonstrate this experience)

Preferred Experience:

The ideal candidate will have experience with the following:

  • Providing technical and administrative supervision over attorneys and professional staff within an organization.
  • Planning and assigning work to subordinate attorneys based on priorities and difficulty of the assignment.
  • Providing input and advice to Senior Officials on policy decisions.
  • Coordinating with other government offices and/or agencies on legal matters.

NOTE: Qualifying experience is calculated only after receipt of J.D. or LL.B.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE.

Salary:

($148,484 – $176,300 per year.

Travel:

Occasional travel

Application Process:

To Apply for this position, please click the below link to access and apply to the vacancy announcement via USA Jobs USAJOBS – Job Announcement . Please read the announcement thoroughly. You Must Submit a complete application package by 11:59PM (EST) on 9/02/2022, the closing date of the announcement.

Applicants should familiarize themselves and comply with the relevant rules of professional conduct regarding any possible conflicts of interest in connection with their applications. In particular, please notify this Office if you currently represent clients or adjudicate matters in which this Office is involved and/or you have a family member who is representing clients or adjudicating matters in which this Office is involved so that we can evaluate any potential conflict of interest or disqualification issue that may need to be addressed under those circumstances.

Application Deadline:

Tuesday, September 6, 2022

Relocation Expenses:

Not authorized

Number of Positions:

1

Updated August 23, 2022

*         *         *

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

The ship is rudderless and sinking! Many of the sailors are inept or think they are working for a different Navy! The solution: More Lt. Commanders on deck, each doing someone else’s job and giving random orders, to add to the confusion and disorder!

Let me be clear: EOIR and its long-suffering “customers” and “stakeholders” need this superfluous position like a hole in the head! Perhaps less! This looks like “EOIR imitating the DHS bureaucracy” that it is supposed to be treating as a “party,” not a “role model!”

The “Office of Policy” — totally unnecessary and inconsistent with the mission of a quasi-judicial court system — is a serious boondoggle created by the last Administration. Eliminating it and redeploying its wasted resources into competent, expert quasi-judicial decision making should have been “Day One Stuff” for Garland. But it wasn’t!

EOIR needs better, expert judges, who know immigration and human rights laws, and are unswervingly committed to due process, fundamental fairness, and best practices! It also needs a “lean team” of well qualified judicial administrators to recruit, hire, train, and support judges and court staff!

Incredibly, most of this PD sounds like it’s right out of the PDs for BIA Chair, BIA Member, CIJ, Director, Deputy Director, or General Counsel. Get folks who can do those jobs and eliminate the Office of Policy and the other “non-operational bureaucratic fat” in Falls Church!

Does the Supreme Court have a “U.S. Law Division?” How about the D.C. Circuit where Garland once served? What on earth is Garland doing with this wasteful nonsense!

For Pete’s sake, the BIA IS the “Immigration Law Division!” If, as I maintain, most of the current Appellate Judges are not capable of performing those functions competently and in accordance with due process and fundamental fairness, then get better judges in there! Now!

Sure, it’s not the “popular solution” within the self-perpetuating bureaucracy. But, it’s the right one!

Stop the unnecessary proliferation of inept bureaucrats at EOIR! “Hey, hey, Ho, ho, the EOIR Clown Show has got to go!” Throwing more “ringmasters” into this circus is NOT the answer!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

DOJ and Director Neal should be hauled before an Oversight Committee to justify their continuing bureaucratic nonsense in the face of abject “mission failure!” Not going to happen. But, it should! Honestly!

🇺🇸 Due Process Forever!

PWS

08-24-22

🤮SOME THINGS NEVER CHANGE:  TRAC SAYS UNDER GARLAND EOIR JUVENILE DATA REMAINS BADLY FLAWED, UNUSABLE!  — “EOIR has continued to ignore its growing data management problems.” — Duh!

Alfred E. Neumann
Garland doesn’t worry about the mess at his EOIR. He leaves the worrying to EOIR’s long-suffering, frustrated, and angry “customers!” PHOTO: Wikipedia Commons

 

Transactional Records Access Clearinghouse

Immigration Court’s Data on Minors Facing Deportation is Too Faulty to Be Trusted

After careful analysis and consideration, TRAC is forced to suspend its publication of data on juveniles facing deportation in Immigration Court due to serious, unresolved deficiencies in the EOIR’s data. TRAC’s analyses indicate that the data used by the Immigration Court for tracking and reporting on juveniles who are facing deportation appear to be seriously flawed to the point that we question whether the agency has the ability to meaningfully and reliably report on juveniles in its caseload.

We wrote to EOIR’s Acting Director Jean King on September 22, 2021 to share TRAC’s findings, request feedback from the agency, and offer to share additional details to support the agency’s efforts to identify and resolve the issues. TRAC did not receive any response to that letter. We wrote to the EOIR again on October 15, 2021, this time to Director David Neal who had subsequently been appointed as EOIR’s permanent director by Attorney General Merrick Garland. We reiterated our initial concerns, but TRAC did not receive a response to that letter either.

TRAC is now regretfully withdrawing its own Juvenile App since EOIR’s data are too flawed to be used. Because these significant data problems arose only at the time EOIR implemented a series of changes in the latter part of 2017 impacting how unaccompanied juveniles were tracked, the results compiled before these changes occurred will be retained online for use in historical research.

The Immigration Court’s failure to respond to or address TRAC’s findings of significant data quality issues regarding minors is particularly concerning given the highly sensitive nature of children facing deportation. This data quality problem on tracking juvenile cases adds to EOIR’s earlier refusal to address data quality issues regarding asylum cases that continue to disappear from the agency’s master database which it relies on to manage its workload. Furthermore, TRAC recently uncovered additional data problems leading EOIR to falsely report its asylum backlog had allegedly declined this past year when in fact the backlog had markedly grown.

Taken individually, each specific issue is significant and noteworthy in its own right. But taken together, these now multiple unresolved data quality issues are compounding upon each other. TRAC has repeatedly offered to work with the EOIR to aid the agency as it seeks an understanding of the problem and a meaningful solution—yet thus far EOIR has continued to ignore its growing data management problems.

The public should be increasingly troubled by the indifference that the Immigration Courts have shown to these issues and should push for improved transparency and accountability.

For further information about the problems in the Court’s juvenile data go to:

https://trac.syr.edu/immigration/reports/669/

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
601 E. Genesee Street
Syracuse, NY 13202-3117
315-443-3563
trac@syr.edu
https://trac.syr.edu

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

Bogus data “supporting” false claims! Institutionalized sloppiness! Serious legal mistakes! Wildly inconsistent application of basic legal principles and standards! Chronic mismanagement! Backlogs on steroids! Lack of public responsiveness! Wrong personnel in the wrong jobs!

That’s “Garland’s EOIR!” To put it charitably, it’s a godawful mess and a festering cancer on our entire legal system!

Charles Dickens
Charles Dickens would have loved writing about EOIR — the modern day reincarnation of the Court of Chancery from Jarndyce v. Jarndyce!
Public Realm

EOIR is like something out of a Charles Dickens novel! But, it’s a harsh reality for the immigrants, families, and advocates subjected to this publicly financed hotbed of incompetence, indifference, and ineptness!

Obviously, running EOIR in even a minimally competent level is beyond Garland’s skill set and below his interest level! Stunningly, our Attorney General is unbothered by having legal “work product” that would embarrass any self-respecting L-1 churned out in his name by his “delegees.” Feeding false and misleading information to the public? Just “another day at the office” @ Garland’s EOIR!

Where’s the Congressional oversight? Where’s Article I? 

🇺🇸Due Process Forever!

PWS

12-04-21

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

UY

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

1

adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

2

desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

3

such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

4

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

WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps.  Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog. 

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs). 

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data. 

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.” 

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

⚖️”THEY BELONG IN THE TRASH BIN” 🗑☠️ — NAIJ CAUTIOUSLY HOPEFUL THAT END OF QUOTAS WILL BRING MEANINGFUL CHANGE — Will Director David Neal Topple Toxic Top-Down Paramilitary Bureaucratic Structure @ EOIR? — Courts Aren’t “Agencies” & Can’t Be “Micromanaged” By “Edicts From On High” — Meaningful Advance Input From Judges, Court Clerks, Stakeholders, Outside Judicial Experts Has Been MIA @ EOIR For Decades, & Disaster & Dysfunction In Courts Show It!

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

For immediate release – October 20, 2021

Contact: Jamie Horwitz, jhdcpr@starpower.net, 202/549-4921

An End to a Highly Controversial Quota System Imposed on Immigration Judges

This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”

WASHINGTON –A deeply flawed and inefficient U.S. Department of Justice program that evaluated Immigration Judges primarily on the number of cases they heard, has been “suspended.” The DOJ will no longer evaluate judges on the number of cases they decide Chief Judge Tracy Short wrote in an email sent to the nation’s roughly 500 Immigration Judges this week.

Over the past three plus years, Immigration Judges have looked over their shoulders, worried about being disciplined, just for doing their jobs — providing due process.

“This week’s actions by the Department of Justice under Executive Office for Immigration Review Director David Neal are a step in the right direction toward restoring a greater measure of integrity to our nation’s Immigration Courts,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Our organization looks forward to working with management to restore a fairer process that allows judges to focus on doing their jobs properly. The performance metrics developed by the Trump administration were a violation of judicial ethics, they belong in the trash bin.”

“The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge,” the chief judge wrote in his emailed message. “These new performance measures will focus on balance and equity for the various types of docket assignments.”

In 2018, then U.S. Attorney General Jeff Session imposed a quota of 700 decisions per year on each Immigration Judge, tied to performance reviews, regardless of the complexity of the cases.

The Trump administration also attempted to silence NAIJ from speaking out on the quota system and other policies by decertifying the union. While the union-busting efforts of the previous administration were not completely successful, full collective bargaining rights have yet to be restored to NAIJ.

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.

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Hon. David. L. Neal
Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

Can David Neal bring all the real parties in interest “to the table,” fashion workable, realistic judicial policies and procedures driven by due process and the realities of Immigration Court practice, keep DOJ’s political meddling at bay, and then tap “new talent” that can actually implement positive change in a judicial, non-bureaucratic manner that achieves “systemic buy-in?” Does he even want to? If so, will Team Garland empower him to succeed, or undermine him?

One thing in Director Neal’s favor: He already retired from EOIR once and presumably could do so again if pressured to elevate political agendas over due process and best practices.

On the flip side, at least one other Director in that same position chose to “go along to get along” with decisions and policies from the DOJ that actively undermined due process and substantially decreased confidence in government.

We’ll see whether the NAIJ’s “cautious optimism” about the “Neal Era @ EOIR” is justified or just another dashed dream about due process, fundamental fairness, and best practices!

🇺🇸Due Process Forever!

PWS

10-24-21

BREAKING: ABSURDIST “IJ DASHBOARDS” HEADED FOR THE SCRAP HEAP? — New EOIR Director David Neal Reportedly Takes Prompt Action To Eliminate Wasteful, Counterproductive, Stress-Inducing “Big Brotherism” On The Bench!

Hon. David. L. Neal
Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

BREAKING: ABSURDIST “IJ DASHBOARDS” HEADED FOR THE SCRAP HEAP? — New EOIR Director David Neal Reportedly Takes Prompt Action To Eliminate Wasteful, Counterproductive, Stress-Inducing “Big Brotherism” On The Bench!

By Paul Wickham Schmidt

Courtside Exclusive

Oct. 20, 2021

Sources in and outside of EOIR confirm that new EOIR Director “David Neal has ended the dashboard. Supposedly, new IJ quotas are coming, which will be presented as kinder, more humane quotas.”

The “IJ Dashboards,” inextricably tied to due-process-denying “deportation quotas” for Immigration Judges were one of the stupidest, most childish, and transparently counterproductive wastes of taxpayer money by the Trump regime at the DOJ. They were harshly criticized both internally and by outside commentators, including “Courtside.” Their ineffectiveness in reducing backlogs and their adverse effects on already “below basement level” IJ morale are matters of public record!

Shockingly, this wasteful abuse of technology was undertaken at a time when EOIR was continuing its two decade abject failure to implement a badly-needed and long overdue nationwide e-filing system. Who knows how many files and filings are actually floating around EOIR (“lost in space”)? EOIR incompetence means we might never know the full extent of the ongoing backlog disaster! Will David Neal become the first Director in more than two decades to actually solve this problem, rather than just scrambling to conver up failure?

Congratulations to Director Neal for “taking at least one small step for mankind.” We’ll wait to hear what he does to make “IJ quotas” more “kind and gentle.” 

The obvious “no brainer” answer is to eliminate them entirely. They could be replaced with realistic, non-mandatory “goals” or “guidelines” for deciding certain types of cases. This might provide helpful guidance for IJs in setting expectations and fairly and professionally handling clogged dockets, rather than ham-handed attempts at coercion and transparent “blame shifting.”

However those guidelines would have to be developed with input from the Immigration Judges themselves, counsel from both the private bar and DHS, and some true judicial experts — perhaps “on loan” from the Administrative Office for U.S. Courts, the Brennan Center, the ABA, and/or the FBA.

Past “goals and timetables” have been the product of political posturing and wishful thinking by those bureaucrats at DOJ and EOIR trying to shift blame and CTA for the failing system under their responsibility. The legitimacy of the process by which any guidelines are established is critical to making them realistic and helpful, rather than just another bureaucratic gimmick untethered to reality as past guidelines have been.

🇺🇸Due Process Forever!

PWS

10-20-21

⚖️OLD NEWS FOR “COURTSIDERS” — Garland Names Former BIA Chair & Chief IJ Hon. David L. Neal As New EOIR Director! — Can He Fix America’s Most Dysfunctional Court System?

Hon. David. L. Neal
Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

https://www.justice.gov/eoir/pr/attorney-general-merrick-b-garland-announces-appointment-david-neal-director-executive

Department of Justice
Executive Office for Immigration Review

FOR IMMEDIATE RELEASE
Friday, September 24, 2021

Attorney General Merrick B. Garland Announces Appointment of David Neal as Director of the Executive Office for Immigration Review

WASHINGTON – Attorney General Merrick B. Garland today announced the appointment of David L. Neal as the Director of the Executive Office for Immigration Review (EOIR) at the Department of Justice.

“The Justice Department’s commitment to a fair and efficient immigration court system, governed by due process and the rule of law, is exemplified by recent policy changes and our pursuit of significant additional resources,” said Attorney General Garland. “David Neal brings invaluable experience that will help further EOIR’s mission.”

The EOIR director is responsible for the supervision of the Chairman of the Board of Immigration Appeals (BIA), the Chief Immigration Judge, the Chief Administrative Hearing Officer and all agency personnel. EOIR has more than 2,300 employees in its 69 immigration courts nationwide, at the BIA and at EOIR headquarters in Falls Church, Virginia. As provided in the President’s Budget Request for FY 22, EOIR anticipates increasing its immigration judge corps from 535 today to 734 by the end of the next fiscal year.

Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations. Mr. Neal served in multiple other capacities at EOIR, including as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge and Assistant to the Director.

Prior to his tenure with EOIR, Mr. Neal served in the U.S. Senate Judiciary Committee as chief counsel of the Subcommittee on Immigration. Mr. Neal began his legal career as the Director of Policy Analysis at the American Immigration Lawyers Association and also worked for a law firm in Los Angeles, representing immigration cases before the former Immigration and Naturalization Service, the State Department, the Department of Labor and EOIR.

Mr. Neal received his Bachelor of Arts from Wabash College in Crawfordsville, Indiana, Master of Divinity from Harvard University’s School of Divinity and his Juris Doctor from Columbia Law School. Mr. Neal is a member of the District of Columbia and New York bars.

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

David thus becomes the first EOIR Director to have served as both BIA Chair and Chief Immigration Judge, as well as briefly as an Immigration Judge.

Congratulations and good luck to David in his new position! It’s going to take a monumental effort, extraordinary management ability, creativity, and lots courage and determined due-process-best-practices-oriented leadership to straighten out the godawful legal, professional, and administrative mess in America’s most unfair and dysfunctional court system, now running a largely self-created 1.4 million case backlog.

Will he be able to hold off the politicos at DOJ and finally put an end to the DOJ-generated “Aimless Docket Reshuffling” (“ADR”) that has been the major cause of the 1.4 million case backlog at EOIR that has gown up over the last two decades of mismanagement at DOJ and EOIR? Will he be able to end the reprehensible officially-sanctioned “victim shaming” and cowardly “blame shifting” that has been heaped by the DOJ and EOIR on those suffering from its defective administrative practices over the past two decades?

If, as Garland claims, 200 new Immigration Judge positions will be added by the end of FY 2022, will David be able to institute merit-based Immigration Judge hiring that 1) involves public input from those who actually practice before the Immigration Courts, e.g., the private bar; 2) gives appropriate credit to “practical scholars” in immigration, human rights, and civil rights with clearly-established records of independent thinking and unswerving commitment to due process for individuals; 3) appropriately honors and weighs experience gained actually representing individuals, particularly asylum seekers, in Immigration Court, and 4) removes demeaning “production quotas,” limitations on docket management, and unnecessary restrictions on public scholarship, writing, and teaching which have made the job intentionally unattractive to many of the “best and brightest” progressive candidates from the private immigration and human rights sector. Will he actually go out and actively recruit a broader, more diverse, and more representative candidate base for IJ hiring, rather than using “insider procedures” that don’t reach or encourage many of the best candidates for these important jobs?

HINT: More “gimmicks,” like “dedicated dockets,” continued “Mickey Mouse”  🐭 uber enforcement “production quotas,” and appointments of judges who have never represented an individual in Immigration Court won’t do the trick! That is being proved every single day, beyond any reasonable doubt!

Nor will being at war with the National Association of Immigration Judges (“NAIJ”) and their leadership further due process. NAIJ leaders are the only ones at EOIR who have been providing meaningful professional training over the past four years of darkness and ignorance at EOIR.

They, along with the Private/NGO/Clinical Bar and OPLA Assistant Chief Counsel have the best and most practical ideas on how to fix EOIR! David would be wise to give them all “seats at his table,” and listen carefully to their views, rather than attempting to “lock them in a dark cellar,” as was the practice of the Trump immigration kakistocracy that effectively destroyed EOIR!

Since “built to fail” enforcement-generated non-solutions are the things EOIR appears “wedded to,” David is going to have to persuade Garland and his lieutenants to radically change course. Can he get them to treat Immigration Courts as “real courts,” controlling the lives of “real human beings,” folks like you and me, in dire need of real judicial administration and real progressive expert judges, to get out of EOIR’s current “death spiral.”☠️ Or, will we see a continuation of “Dred Scottification” of women and people of color, along with substandard trial judging, defective appellate review, and lousy biased precedents that end up creating more problems than they solve? 🤮 Only time will tell!

🇺🇸Due Process Forever!

PWS

09-24-21