“SIR JEFFREY” CHASE ⚔️🛡 KICKS OFF 2021: Misuse of CDC Authority🤮 Part Of The Scofflaw Regime’s White Nationalist Agenda☠️🏴‍☠️ — Why Have the Federal Courts Let Bogus Pretexts “Overrule” Truth & The Rule of Law?🤥

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

https://www.jeffreyschase.com/blog/2021/1/3/the-next-level-shamelessness-of-the-covid-security-regs

The Next-Level Shamelessness of the COVID Security Regs

On December 23, EOIR and USCIS published final rules designed to brand most people a “security risk,” and thus ineligible for asylum.  The rules won’t become effective until January 22 (i.e. after the Biden Administration is in office), so will presumably be pulled back before they hurt anyone other than the reputations and careers of those responsible for their publication.  Nevertheless, it seems worthwhile to refute the present administration’s claimed justification for such a rule.  First, there will certainly be other bad administrations in our future, and as we’ve seen with the present one, they might look to the past for inspiration.

Furthermore, even without the rule going into effect, individual immigration judges will still be faced with interpreting the clause it invokes on a case-by-case basis.  I’m hoping the following analysis will prove useful, as I’m pretty sure it wasn’t covered in the judges’ training.

But most importantly, the assaults of the past four years on facts and reason have taught us the need to constantly reinforce what those presently in charge hope to make us forget: that there are laws passed by Congress; that the Judiciary has created strict rules governing their interpretation, and that executive agencies are not free to simply ignore or reinvent the meaning of those laws to their own liking.

The regulations in question seek to take advantage of the present pandemic to render any asylum seeker who either exhibits symptoms of the virus, has come in contact with it, or has traveled from or through a country or region where the disease is prevalent ineligible for asylum.  The administration seeks to justify this by claiming that there are reasonable grounds for regarding the above a danger to the security of the United States.

The “danger to the security of the United States” bar to asylum1 which the new regulations reference derives from Article 33(2) of the 1951 Convention Relating to the Status of Refugees, which serves as the international law basis for our asylum laws.  That treaty (which is binding on the U.S.) states that the prohibition against returning refugees shall not apply to those “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

However, Article 33(2) applies to those who have already been recognized as refugees, and have then committed crimes in the country of refuge, which is not the class to whom the new regulations would apply.  The bases for excluding those seeking refugee status for reasons arising prior to their arrival are found under Article 1D through 1F of the 1951 Convention.  The prohibitions found there cover three groups: those who are already receiving protection or assistance (Article 1D); those who are not considered to be in need of protection (Article 1E); and those “categories of persons who are not considered to be deserving of international protection (Article 1F).2   Individuals posing a danger to the community fall into the final category.

No ground contained in the 1951 Convention excludes those in need of protection for health-related purposes.  To understand why, let’s look closer at the Convention’s use of the word “deserving” as it relates to refugee protection.  In 1997, UNHCR published a note providing additional insight into the Article 1F “exclusion grounds.”  Explaining that “the idea of an individual ‘not deserving’ protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge,” the note explains that the primary purpose of the clauses “are to deprive the perpetrators of heinous acts and serious common crimes, of such protection.”  The note explains that to do otherwise “would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.”

The European Council on Refugees and Exiles covered this same issue in its 2004 position paper on Exclusion from Refugee Status.  At page 8, the ECRE stated that the “main aim” of Article 1F was not “to protect the host community from serious criminals,” but rather to preserve the integrity of the international refugee system by preventing it from being used to “shelter serious criminals from justice.”  These sources make it extremely clear that the intent was certainly not to exclude someone who might have been exposed to a virus.

In including six exceptions to eligibility in our asylum statute,3 Congress followed the lead of the 1951 Convention, as all six domestic clauses fall within the three categories listed in paragraph 140 of the UNHCR Handbook as listed above.  Of the six grounds listed under U.S. law, the last one, regarding persons firmly resettled in another country prior to arrival in the U.S., is covered by the Convention categories of those already receiving assistance or not in need of assistance.

The remaining five exceptions under U.S. law fall within the category of those not considered to be deserving of protection (Article 1F).  The statute lists those categories as: (i) persecutors of others; (ii) persons posing a danger to the community of the U.S. by virtue of having been convicted of a particularly serious crime; (iii) persons whom there are serious reasons to believe committed serious nonpolitical crimes prior to their arrival in the U.S.; (iv) persons whom “there are reasonable grounds for regarding…as a danger to the security of the United States,” and (v) persons engaged in terrorist activity.

Agencies may only apply their own interpretation to the term “as a danger to the security of the United States” to the extent such term is ambiguous.  But the courts have instructed that in determining whether a statute is in fact ambiguous, traditional tools of construction must be employed, including canons.4  The Supreme Court has recently applied one such canon, ejusdem generis, for this  purpose.5   In its decision, the Court explained that “where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘ “embrace only objects similar in nature to those objects enumerated by the preceding specific words.”’”6

Former Attorney General Barr himself recently applied the ejusdem generis canon to the term “particular social group,” stating that pursuant to the canon, the term “must be read in conjunction with the terms preceding it, which cabin its reach…rather than as an “omnibus catch-all” for everyone who does not qualify under one of the other grounds for asylum.”7

A very similar canon to ejusdem generis  is noscitur a sociis (the “associated words” canon).  Whereas ejusdem generis requires a term to be interpreted similarly to more specific terms surrounding it in a list, noscitur a sociis applies the same concept to more specific terms across the same statute.8

In 8 U.S.C. § 1158(b)(2)(A), the more general term “danger to the security of the United States” is surrounded by the more specific terminology describing the accompanying grounds of asylum ineligibility.  When thus “cabined” by the more specific classes of persecutors of others, those convicted of serious crimes, and those engaged in terrorist activities, it is clear that Congress intended a “risk to security” to relate to similar types of criminal activity, and not to health grounds.  As the intent of Congress is clear, the term “threat to the security of the United States” is not open to any interpretation the agencies might wish to apply to it.  Yet in its published rule, EOIR and USCIS here create the type of “omnibus catch-all” that the Attorney General himself has elsewhere declared to be impermissible.

The rule is further at odds with circuit case law in its application to those who simply “may” pose a risk.  The Third Circuit has found the statutory language of the clause in question to unambiguously require that the asylum-seeker pose an actual, rather than merely a possible, threat to national security.9  Even if it were assumed that COVID could somehow fit into the category of security risk, simply having traveled from or through an area where the virus is prevalent doesn’t establish that the individual presents an actual risk.

There is also the issue of the transient nature of the risk. In the same decision referenced above, the Third Circuit relied on the Refugee Act’s legislative history to conclude “that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations,” allowing for exceptions “only in a narrow set of circumstances.”10  This is obviously a correct reading where exclusion can lead to death, rape, or indefinite imprisonment.  The other classes deemed undeserving of asylum are defined by more permanent characteristics.  In other words, the attribute of being a terrorist, a persecutor, or a serious criminal will not wear off in two weeks time.  To the contrary, any risk posed by one exposed to COVID-19 is likely to pass within that same time frame.  Wouldn’t the “fullest extent” of our obligations call for simple quarantining for the brief period in question?

These issues were all raised in comments to the proposed regs.  And of course, dubious reasons were employed to dismiss these arguments.  For example, the agencies acknowledged the need for the danger posed be an actual rather than a merely possible one.  But somehow, that requirement was dismissed by the inadequate excuse that the danger posed by a pandemic is “unique.”

The rule stands as one of the final examples of the extremes this administration will go to in order to circumvent our asylum laws and turn away those entitled to avail themselves of our immigration courts in order to determine if they are entitled to protection.  As demonstrated here, the degree to which this administration veered from the actual intent of the statute in interpreting the security bar wouldn’t have been much greater if it attempted to deny asylum to those wearing white after Labor Day.11  The law must not be twisted or ignored by executive branch agencies when it conflicts with an administration’s policy objectives.

Notes:

  1. 8 U.S.C. § 1158(b)(2)(A).
  2. UNHCR Handbook at ❡ 140.
  3. 8 U.S.C. § 1158(b)(2)(A).
  4. See, e.g., Arangure Jasso v. Whitaker, 911 F.3d 333, 338-39 (6th Cir. 2018).
  5. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018).
  6. Ibid (citing Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 149 (2001); National Assn. of Mfrs. v. Department of Defense,138 S.Ct. 617, 628–629 (2018)).
  7. Matter of L-E-A-, 27 I&N Dec. 581, 592 (A.G. 2019).
  8. Thanks to Prof. Jaclyn Kelley-Widmer for sharing her expertise on these terms. See Jaclyn Kelley-Widmer and Hillary Rich, “A Step Too Far: Matter of A-B-, Particular Social Group, and Chevron,” 29 Cornell J. of Law and Public Policy 345, 373 (2019).
  9. Yusupov v. Att’y Gen. of U.S., 518 F.3d 185, 201 (3d Cir. 2008).
  10. Id. at 203-204.
  11. If it had done so, EOIR would undoubtedly have defended the move through the traditional, completely acceptable, totally normal method of issuing a “Myths vs. Facts” sheet. The document might contain the following entry: “Myth: EOIR issued a rule banning asylum to anyone wearing any color at any time. Fact: That’s completely absurd! Only those wearing white (which technically might not even be a color) are banned, and even then, only after Labor Day. As Pantone lists 1,867 colors, white consists of .05 percent of all colors one could wear. And that’s only if white is in fact a color. And, again, only after Labor Day.”

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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Jeffrey’s article points out how deeply the corruption and racism of the regime have penetrated into the Federal Bureaucracy, even infecting supposedly “professional and apolitical” agencies like CDC. Fixing this will be a formidable task for the Biden-Harris Administration. 

But, there is a larger issue here: Why has the Supremes’ GOP majority “lapped up” the transparent pretexts for unconstitutional actions presented by the regime’s ethics-challenged DOJ lawyers? While an impressive array of U.S. District Court Judges, from both parties, have generally courageously stood tall for the rule of law against White Nationalist abuses, not so the GOP majority of the Supremes!  

Let’s go back to the beginning of the regime. After a string of lower Federal Court defeats, “ethics-free” DOJ lawyers massaged and slightly watered down Trump’s “Muslim Ban” and repackaged it as a bogus “national security” measure. But, even as these disingenuous lawyers were advancing this bogus pretext in court, Trump was reassuring his White Nationalist base that this was indeed the “Muslim Ban” he had promised to his supporters. 

https://www.cato.org/blog/dozen-times-trump-equated-travel-ban-muslim-ban

Nevertheless, the Supremes’ GOP majority “bought into” the patently (and demonstrably) bogus “national security” pretext, hook, line, and sinker:

Of the Supreme Court’s decision on Muslim ban 3.0, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”

 

“It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking actions to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”

https://www.aclu-wa.org/pages/timeline-muslim-ban 

In doing so, the GOP Supremes’ associated themselves with a long line of racially biased pretexts used by courts to uphold invidious discrimination that violated our Constitution

  • Internment of Japanese-Americans (but not German-Americans) is about national security.
    • Truth: Dehumanize, punish, and dispossess Japanese Americans on the West Coast;
  • Poll taxes are about raising revenue.
    • Truth: Preventing African-Americans from voting;
  • Literacy tests (“grandfathering” ignorant White guys) are about insuring an informed electorate.
    • Truth: Excluding African-American voters;
  • Separate is equal.
    • Truth: Insuring that African-Americans will be educationally disadvantaged;
  • Voter ID laws are about election integrity.
    • Truth: Designed by a primarily White GOP ruling class to suppress African American, Latino, and other minority voters who tend to support Democrats;
  • Gerrymandering to favor the GOP can be solved through the political process.
    • Truth: Gerrymandering is intended by the GOP to rig the political process so that voters of color will never achieve political representation proportional to their numbers.

These are just a few of the obvious examples of how the “legal power structure” has often been on the “wrong side of history.” Sadly, it continues with today’s GOP Supremes’ majority which often embraces obvious pretexts and bogus “right wing legal gobbledygook” to systematically dump on vulnerable minorities and others whose political power and humanity they refuse to recognize.

Finally, to reinforce what Jeffrey and others have said, we have a legal obligation to protect refugees. Article 33 of the Convention to which we are party, now incorporated into the INA, is mandatory, not “optional” or “discretionary.” 

As I pointed out before, refugees more often than not arrive in times of international crisis and turmoil. “Tough times” or internal problems (in this case aggravated and magnified by a maliciously incompetent regime) are NOT a legal (not to mention moral) basis for us to jettison our legal obligation to offer them protection.

Had the Supremes courageously and unanimously stood up for the Constitution, rule of law, and simple human decency against the regime’s obvious lies, false narratives, overt racism, religious bigotry, and general disregard for the rule of law (now in full, foul bloom every day), the last four years might have been very different. Lives lost forever could have been saved. 

Folks, here we are, two decades into the 21st Century. Yet, we have a highly “un-representative” Supremes’ GOP majority that has willingly promoted the anti-democracy antics of, and carried water for, a patently corrupt White Nationalist regime seeking to “Dred Scottify” tens of millions of persons of color, religious minorities, and those “suspected” of not supporting the GOP.

Even if many would like to, this is not something that can simply be swept under the table (again). Failure of the Supremes majority to stand up for the individual rights and human dignity of all persons in America is something that will haunt us until it is fixed or we disappear as a nation!

Lousy judging has a huge cost for humanity and democracy. We need and deserve better from the highest levels of our privileged, yet too often ineffective and feckless in the face of tyranny, life-tenured judges!  

Better Judges for a Better, Fairer America.🇺🇸 Make Equal Justice Under Law ⚖️ A Reality Rather Than an Ongoing, Judicially-Enabled,  Charade! 

Due Process Forever!⚖️🗽🇺🇸

PWS

01-04-21

  

🛡⚔️⚖️🗽SIR JEFFREY’S 2021 WISH LIST — Sanity, Humanity, Due Process, & Other Great Things!  — The Importance Of A Long Overdue “Training Upgrade” @ EOIR!

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

https://www.jeffreyschase.com/blog/2020/12/14/a-wish-list-for-2021

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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A Wish List for 2021

To use another sports analogy, we have entered the preseason of the Biden Administration.  As any sports fan knows, preseason (which generally starts five or six weeks before the real season begins) is a time for dreaming.  During preseason, every team is undefeated, and every fan is permitted to believe that this will finally be the year in which their suffering and loyalty are rewarded.

I’ve spoken to several law school classes this fall via Zoom.  One question I’ve been asked by students (both before and after the election) is what reforms I would like to see under the Biden Administration.  Although it seemed significantly more likely before November 3 that the Democrats would control both houses, I’ve stuck with the original list.  This is, after all, preseason, and I’m allowed to dream.

Just to be clear, Biden will be the 13th president to serve during my lifetime, and the seventh since beginning my career in immigration law.  I am well aware that most of the items on my list won’t happen; I wouldn’t be surprised if none come to pass.  Maybe I’ll continue that thought in a future blog; this one is devoted to dreaming.  That being said, some of the changes I hope to see are:

Safeguarding Asylum: In spite of numerous reminders from Article III courts that it is Congress, and not the Attorney General, that writes our laws, and that in enacting the 1980 Refugee Act, Congress intended to bring our asylum laws into accordance with our treaty law obligations, the Trump Administration showed shameless disregard for these facts, doing everything it could think of to upend Congressional intent by eliminating asylum eligibility to all who apply.  Ideally through statute, but if not possible, then at least through regulation, safeguards must be added making it absolutely clear to future administrations that asylum is meant to be a broad and flexible relief from any type of persecution creative persecutors may conceive; that the designated grounds required for such protection are to be interpreted broadly, and that persecution may be attributed to a government providing imperfect protection to its citizens.  It is important to note that none of these principles constitute changes to the law,  but simply shore up or repair long-existing principles following the storm of the past four years.

An Independent Immigration Court: It is time for the Immigration Courts to be moved out of the Department of Justice, and into independent Article I status.  We’ve seen over the past four years the worst-case scenario of what happens when an enforcement agency realizes that it controls the courts that exist to keep that same agency’s worst impulses in check.  Article I has been strongly endorsed by the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, the National Association of Immigration Judges, and many other groups, including the Round Table of Former Immigration Judges.  Enacting this change is the only way the integrity and independence of the Immigration Courts can be safeguarded from future attack.

Government Appointed Counsel for Children in Removal Proceedings: This is a no-brainer.  In a case before the Ninth Circuit involving this issue, J.E.F.M. v. Lynch,  an amicus brief was filed by the states of Washington and California.  The brief began: “In this case, the federal government argues that an indigent child charged with removability in a federal immigration proceeding does not, as a matter of due process under the federal Constitution, have the right to be represented by appointed counsel at government expense….Such a position is at odds with principles of ordered liberty and due process.  It ignores the reality that indigent children are incapable of representing themselves in an adversarial immigration removal proceeding, let alone raising complex claims of due process or navigating federal administrative and appellate procedure.”  The brief continued: “An adversarial immigration system, which depends on the presentation of both sides of a case in a highly specialized area of law, demands that a child, standing alone, be represented by counsel.”  The brief was signed (in March 2016) by California’s then Attorney General, Kamala Harris.  Hopefully Vice President Harris will work to make this right a reality.

Eliminate Chevron Deference for BIA and Attorney General Decisions:  Last year, the Third Circuit, in a concurring opinion by Judge McKee in its decision in Quinteros v. Att’y Gen. (which all three judges on the panel joined), stated that “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”  The court’s observation highlights the problem with according broad deference to those who use their decision-making authority for politically motivated ends.

In a blog post earlier this year, I highlighted three recent scholarly articles questioning the continued propriety of applying Chevron’s principles to decisions of the BIA concerning asylum, or to any decisions of the Attorney General.  I believe Article I status would resolve this problem, as decisions issued by an independent court outside of the executive branch would no longer constitute the interpretation of an executive branch agency covered by Chevron.  In the meantime, Congress and/or the Department of Justice should consider means of exempting such decisions from Chevron deference, and thus keep both the BIA and Attorney General honest in their efforts to reach neutral and fair results.

Create a “Charming Betsy” Reg Requiring Adherence to International Law:  Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.  As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.  Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).

As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.

Eliminate or Curtail the Attorney General’s Certification Power: Until Article I becomes a reality, Congress must pass legislation that either eliminates or at least seriously limits the Attorney General’s certification power by removing the ability to rewrite established law on a whim.  At most, the Attorney General’s role should be limited to requesting the BIA to reconsider precedent in light of interceding Supreme Court or Circuit Court decisions, changes in law or regulations, or other legal developments that might materially impact the prior holding.  Furthermore, any right to certify must be limited to cases before the BIA, and to actual disputes between the parties arising in the proceedings below.

Revamp Immigration Judge Training:  This is more important than it might sound.  Conservative commentator Nolan Rappaport has commented on the inadequacy of Immigration Judge training, particularly where many recent appointees come to the bench with no prior immigration experience.  This problem predates the present administration.  Under Attorneys General Holder and Lynch, the BIA in particular was extremely resistant to exposing its judges and attorneys to views not considered part of the official party line.  During that period, I was amazed at how the BIA’s vice-chair (who continues to hold that position up to present) viewed respected immigration experts as the enemy, and employed a director of training and subject matter experts whose only qualification was their willingness to shield EOIR employees from outside sources.  This problem has worsened over the past four years.  A committee including not only those within EOIR, but also academics and members of the private bar should be formed to completely rethink the curriculum and resources available to judges and support staff.

Copyright 2020 Jeffrey S. Chase.  All rights reserved. Reprinted with permission.

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Jeffrey’s point on training is particularly well-taken. This has been a festering “below the radar screen” problem at EOIR for decades. 

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

Jeffrey’s analysis supports my call for the immediate end of the “EOIR Clown Show” and the replacement of EOIR Senior “Management” and the entire BIA with expert “practical scholars” from the NDPA. Indeed, one of the most grossly “underrepresented” groups in the current Immigration Judiciary are those who gained their expertise and courtroom knowledge as clinical professors! That group includes some of the finest legal minds I have run across in nearly 50 years of government, “big law,” and academic practice.

In my experience, EOIR training ranged from the “minimally adequate,” to the sadly comical, to the overtly insulting. In the latter category were the years we had no in person training and were sent a series of “mandatory videos.” Some were inaudible; others wrong or misleading; a few were actually reprises of BIA “staff brown bag lunches.” “Amateur Night at The Bijou” to be sure!

It was not that the resources weren’t available. We had among our ranks colleagues like Judge Dana Marks, one of the “Founding Mothers” of U.S. asylum law, who successfully argued the landmark Cardoza-Fonseca (“well-founded fear”) case before the Supreme Court as a private lawyer; and Board Member/Appellate Immigration Judge Lory D. Rosenberg, to my knowledge the only EOIR judge at any level whose legal analysis was favorably cited by name by the Supreme Court in the St. Cyr case (212(c) waiver retroactivity). 

Yet instead of getting insights and pointers from these and other luminaries of modern immigration and asylum law, we often were treated to government litigators telling us how to narrowly interpret asylum law or make denial decisions “easier to defend” in the Circuit Courts. One government prosecutor famously informed us that we weren’t really “judges” at all but simply “highly paid immigration inspectors working for the Attorney General.” 

Others told us that as “mere DOJ attorneys” we weren’t allowed to claim status as “administrative judges” for state bar purposes, even though by law we were barred from performing non-adjudicative legal functions. This is the kind of nonsense on which some of our limited “training time” was spent. Still others told us that although Congress had granted us statutory contempt authority, the Attorney General was withholding it because we shouldn’t be allowed to hold “other government attorneys” (that is, INS/DHS prosecutors) accountable for their conduct in our “courts” (which, clearly, these bureaucrats didn’t consider “courts” at all, except, perhaps, when arguing against judicial review by the Article IIIs).

Training is important! Many of the Circuit Court reversals highlighted in “Courtside” and on Jeffrey’s blog show grossly deficient understanding and application at both the trial and appellate levels of EOIR of the fundamentals of immigration and asylum law — things like standards of proof, considering all the evidence, judging credibility, and following Circuit and sometimes even BIA precedents favorable to respondents. 

This isn’t “rocket science!” They are the “x’s and o’s” of basic due process and fair immigration adjudication. Yet, all too often, EOIR “expert” tribunals (that really aren’t) come up short. Indeed very few members of today’s EOIR judiciary would be generally recognized as “experts” in the field based on their lifetime body of work. A sad, but true, commentary. But, one that can and must be changed by the Biden-Harris Administration!

The BIA should not only be reconstituted as an true “expert tribunal,” along the line of a Circuit Court of Appeals, but as a tribunal that teaches, instructs, and promotes best practices through its jurisprudence.

And, contrary to some of the restrictionist commentary that I continue to read, asylum law following Cardoza, Mogharrabi, the Refugee Act of 1980, and the U.N. Convention & Protocol from which it flows is neither intentionally narrow nor inherently restrictive. As indicated in Cardoza, it could and should properly be interpreted generously and humanely to grant life-saving protection wherever possible. The purpose of the Convention was to set forth legal minimums while inspiring greater protections along those lines. 

The “spirit of Cardoza and Mogharrabi have long been lost, and now gleefully exorcised at the “EOIR Clown Show.” It’s past time for the appointment of competent, expert EOIR judges and administrators from the NDPA. Those who are intellectual leaders with moral courage who will insist on its long overdue restoration and fulfillment of this spirit!

Due Process Forever!

PWS

12-15-20

HON. “SIR” JEFFREY S. CHASE⚔️🛡: WHAT DOES GOVERNMENT CORRUPTION👎🏻, EXTREME INTELLECTUAL DISHONESTY☠️, & WHITE NATIONALISM 🏴‍☠️ LOOK LIKE? — EOIR!🤮— Repeat After Me: “Hey Hey, Ho, Ho, The EOIR Clown Show🤡 Has Got To Go!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

https://www.jeffreyschase.com/blog/2020/12/12/eoirs-new-math

EOIR’s New Math

I’m going to use a baseball analogy here (with apologies to non-fans):  DJ LeMahieu finished this past season as the American League batting champion.  Imagine if he were to walk in to negotiate a new contract with the New York Yankees, only to be offered the minimum permissible contract because of his disappointing performance.  When a shocked LeMahieu would respond “but I hit .364 last season!,” the Yankees general manager would reply “Not even close.”

The Yankees would explain that they are no longer employing the traditional method of calculating batting average, but have come up with a “better” approach.  A confused LeMahieu would note that he had 71 hits in 195 at bats.  The Yankees would respond that he appeared at the plate 216 times, if one includes “other” outcomes, such as  walks, hit-by-pitch, and sacrifices.  LeMahieu would point out that those have not counted in calculating batting average before; the Yankees would respond “Well, now they do.”  The Yankees would next point out that LeMahieu had not played in 12 of the team’s games last season, due to injury.  The team therefore estimated another 48 plate appearances that the player could have had, and calculated those into his batting average as “non-hits.”  Lastly, the team would note that the season was shortened by 102 games due to the pandemic, covering another 408 plate appearances.  By the time they were done, the Yankees would conclude that LeMahieu had actually batted .107, certainly not Major League quality hitting.1   The Yankees would add that few if any teams would even be negotiating with a .107 hitter, much less offering them a contract.

The above purely fictitious, imaginary scenario is offered to illustrate EOIR’s very real current approach to its published asylum statistics.  The Trump Administration has from day one taken the position that all asylum claims are false in order to justify its inhumane treatment of genuine refugees.  However, such a claim is undermined when the Justice Department’s own judges are granting asylum in those very cases.   It was therefore up to EOIR to offer the type of “alternative facts” that are a trademark of this administration.

EOIR has for many years published an annual Statistical Yearbook, which has included asylum grant rates nationally for all immigration courts.  But recently, EOIR put out a chart entitled “Executive Office for Immigration Review Adjudication Statistics,” and subtitled “Asylum Decision Rates.”  The top half of the chart contains a graph that is only slightly less difficult to follow than Rudy Giuliani’s latest election conspiracy theories.  Below that is a chart containing asylum grant rates for the years 2008 through 2020.

Interestingly, the grant rates listed on this latest chart (using what I’ll call EOIR’s new “Larger Inclusion Asylum & Refugee Statistics,” or “LIARS” for short) are strikingly different than the numbers in the EOIR Yearbooks:

Year EOIR Statistical Yearbook LIARS Figures

2008 45% granted         23.68% granted

2009 48%                 23.92%

2010 51%                 25.34%

2011 52%                       31.36%

2012 56%                 30.55%

2013 53%                 24.93%

2014 49%                 22.84%

2015 48%                 18.70%

2016 43%                 15.80%

There is quite a difference between a grant rate of 48 percent or 18.7 percent for 2015.  So how were the LIARS figures derived?

Well, in addition to asylum grants and asylum denials (i.e. the only two figures that should matter), the LIARS figures added two more categories to the equation.  The first new category is “Other.”  A footnote explains (if that’s the correct word) that “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.”  The explanation that “other” includes “other” didn’t clear things up for me.  Nevertheless, it seems that these were cases that did not involve either a grant or a denial of asylum, and thus shouldn’t be part of the calculation, much like walks, hit by pitch, and sacrifices are not considered in batting average calculations.  The reason those outcomes don’t count in baseball is because they are not indicative of the batter’s ability to get a hit, since no opportunity was available.  Similarly, an asylum case that did not proceed to an actual decision is not indicative of the merits of the application.  For example, an asylum applicant who subsequently became eligible for a faster, easier path to legal status because they married a U.S. citizen or won the visa lottery in no way indicates that their asylum claim wasn’t meritorious.

The second new LIARS category involves cases that were administratively closed.  This is the equivalent of games not played in the baseball analogy.  A case administratively closed is taken off the docket and not tried; it’s a hearing not held.  EOIR is now choosing to consider it as a “non-grant”  in its  calculations, thus reducing the grant rate to the same degree as if the hearing was held and asylum was denied.  In 2015, the two new categories that shouldn’t have been considered equaled 60.94 percent of the total cases considered by LIARS (comparable to the 102 games not played in 2020 by the Yankees, which constitutes 63 percent of a normal length season).  To summarize, the real (Statistical Yearbook) grant rate of 48% in 2015 was derived based on 8,246 asylum grants out of 17,079 total asylum cases decided that year.  The LIARS grant rate of 18.70  considered 8,076 asylum grants (i.e. 170 less than listed in the 2015 Statistical Yearbook) out of a total of 43,189 cases consisting of grants, denials, other, and administratively closed hearings in which the asylum claim was never heard.  I have no idea how LIARS reduced the number of grants in 2015 by 170 cases.

The EOIR Statistical Yearbook contains an additional chart which includes cases in which withholding of removal was granted.  In  2015, fifty-five percent of asylum applicants were granted either asylum or withholding of removal.  The LIARS figures make no mention of withholding of removal.  If grants of that alternative relief were hidden in the “Other: other” category, they would have been counted as cases in which asylum was not granted, which would lower the grant rate in the same way as a denial.

This might all seem like mere pettiness on EOIR’s part, but the administration uses these numbers in press releases (such as its infamous “Myths vs. Facts” sheet which remains posted on EOIR’s website).  It also emboldens the administration to claim it is merely “increasing efficiency” in passing new rules to quickly deny and deport asylum seekers by “efficiently” rendering all of them ineligible for relief.2  Such a statement depends on an underlying belief in the illegitimacy of the claims of those being quickly denied and deported, an illegitimacy that seeks support from the doctored numbers.  Where the true numbers show a much higher rate of asylum claims granted, how could efficiency be used to justify sending actual refugees home to die?3

I wonder who came up with this new system.  As I don’t know the answer, let’s call them “other.”  Maybe they can spend the final weeks until January 20 devising a new chart, titled “Who should no longer be a government employee as of January 21, 2021?”  To get them started, here are a few easy ones: (1) EOIR Director James McHenry: 100%.  (2) Every EOIR manager who enabled him over the past four years: 100%.  (3) Other: 100%.

Notes:

  1. The infamous “Mendoza Line,” which denotes a batting average of .200, is usually considered “the offensive threshold below which a player’s presence on a Major League Baseball team cannot be justified,” according to Wikipedia.
  2. The administration’s latest rules, scheduled to take effect on January 10, would make the manipulation of asylum grant rates unnecessary as to future claims, as virtually no one would remain eligible for such relief. One can only hope that courts will block those rules until they can be withdrawn by the Biden administration.
  3. To be clear, no grant rate would ever  justify sending even a single refugee to their death in the name of efficiency.

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Reprinted with permission.

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

A test of the Biden-Harris Administration’s seriousness about equal justice and restoring human dignity to immigrants will be how quickly the members of the EOIR Kakistocracy, including the BIA, are removed from their positions and replaced by real judges and judicial administrators. That is, “practical scholar-experts” with demonstrated immigration/human rights expertise, applied due process experience, and the guts and integrity to stand up for the rights of individuals who have been unfairly victimized by a vile, White Nationalist, nativist agenda!

Not rocket science!

Due Process Forever!

PWS

12-12-20

MAJOR CONTRAST: AS EOIR CLOWN 🤡☠️⚰️SHOW CEMENTS ITS ROLE AS NOTORIOUS HUMAN RIGHTS ABUSER 🏴‍☠️🤮, THE ROUND TABLE 🛡⚔️ HELPS SAVE LIVES 🗽 AT EVERY LEVEL OF OUR SYSTEM⚖️!

Knightess
Knightess of the Round Table
Jeffrey S. Chase
Hon. Jeffrey S. “Sir Jeffrey” Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

More great news from Sir Jeffrey:

Hi all:  We filed an amicus brief with the Third Circuit last year in a domestic violence withholding and CAT claim from Mexico.  The BIA acknowledged that the petitioner was beaten four or five times a month by her abuser; was raped by him several times, and then lost her job as an agro-engineer with a government agency in Mexico after her abuser beat her violently in front of her co-workers, and her employer told her she could not publicly represent the agency with the resulting bruises on her face.  The BIA further recognized that her abuser was able to locate her when she tried to relocate within Mexico.  And yet withholding was denied on nexus, and CAT denied on government acquiescence grounds.

A number of other groups, including CGRS, filed amicus briefs as well, and OILu moved to remand under favorable terms.  Anju Gupta at Rutgers, who represents the petitioner, said that today, the IJ  (who was very much made aware of all of the amicus briefs) granted CAT relief.

The email said that the petitioner (who was previously detained at Elizabeth, NJ) is now in Mexico (I’m not clear on the details), but will hopefully be able to return soon based on the grant.

It’s great that we continue to make a positive difference.

Best, Jeff

**********

Wow! What a great holiday present!

What a great group with a great mission of promoting due process, advocating for equal justice, and saving lives! Every member of the Round Table has saved lives by standing up for the human dignity and legal rights of those who came before us in Immigration Court. And, we continue to “fight the good fight,” in every possible way at every level of the justice system!

Due Process Forever!

PWS

🛡⚔️WITH ROUNDTABLE “FIGHTING KNIGHTESS” JUDGE SARAH BURR SPEARHEADING THE ATTACK, ICE SCOFFLAWS  🏴‍☠️ FORCED TO COMPLY WITH CONSTITUTION BY U.S. DISTRICT JUDGE! 👩‍⚖️ 

Hon. Sarah Burt
Hon. Sarah Burr
Retired U.S. Immigration Judge
Knightess of The Round Table
Photo Source: Immigrant Justice Corps website
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judgeship

Sir Jeffrey Chase reports:

Attached is the decision of U.S. District Judge Alison J. Nathan of the Southern District of New York ordering ICE to present detained noncitizens before an immigration judge within 10 days of their arrest.  It was not unusual as recently as early last year for noncitizens detained by ICE who were eligible for release to wait weeks or months to see an IJ for the first time.

Sarah Burr filed a declaration in support of the litigation that counsel acknowledged was critical to the outcome. Congrats, Sarah, and thanks for your extraordinary efforts on behalf of due process!

Whether as individuals or a group, we continue to make a difference in important decisions.

Best, Jeff

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

Thanks, and congrats, Sarah!

You are indeed one of the Round Table’s leading “warrior-princesses!”

Knightess
Knightess of the Round Table

Your fighting spirit and lifelong dedication to the battle to achieve “due process for all” are a constant inspiration to all of us in the Round Table and the NDPA!

Due Process Forever!

PWS

12-05-20

⚔️🛡SIR JEFFREY ON THE LIFE-SAVING IMPORTANCE OF COMMENTING: Yeah, Preparing Regulatory Comments Is A Royal Pain In The Butt, Particularly When You Know The Malicious Incompetents In The White Nationalist Regime Won’t Pay Any Attention — But, Federal Judges 🧑🏽‍⚖️⚖️ Often Do!

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

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/12/2/pangea-v-dhs-the-power-of-comments&source=gmail-imap&ust=1607531177000000&usg=AOvVaw2vQATGEpuX0Oss0KcQPyVx

Pangea v. DHS: The Power of Comments

The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules.  Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded.  For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.

As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump.  In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment.  Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality.  They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.

In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea.  The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum.  Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.

Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious.  The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family).  These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection.  In publishing the final rule, the Departments did acknowledge these concerns raised in the comments.  However, as explained above, more than mere acknowledgement was required.

Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required.  As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”

In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes?  Is that what you thought we said?  We meant they were similar to particularly serious crimes.  Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”

That section which  the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum.  The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law.  That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.

But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion.  The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”

Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection.  But thanks are also due to those who took the time and effort to submit comments.  Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions. 

Imagine all the positives for America that could be accomplished if  all of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.

Ultimately, better qualified, more scholarly, human, and humane Justices —  judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.

Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!

Due Process Forever!

PWS

12-03-20

THANKSGIVING 🙏🏼 UPDATE ON ROUND TABLE 🛡⚔️ BATTLES FROM SIR JEFFREY! — Mostly Wins, One Disappointment!

Jeffrey S. Chase
Hon. “Sir”  Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Knightess
Knightess of the Round Table

Hi all:  A few outcomes right before the holiday (two good, one bad):

(1) The Fourth Circuit just granted the motion for rehearing en banc in Portillo-Flores v. Barr, in which the Round Table filed an amicus brief.  This was a decision with a very problematic unwilling/unable determination by two judges (the petitioner, who was 14 when the events occurred, stated on the third time he was asked that it was possible the police might have taken some action), and a very strongly worded dissent.

(2) In a bond case in the Second Circuit in which we also filed an amicus brief in a case represented by Legal Aid., Arana v. Barr, the petitioner was released from custody today after having two prior requests denied.  Legal Aid believes our brief was helpful in achieving that result.  Counsel is expecting a stipulation for dismissal without prejudice.

(3) The bad news: in a petition to the 4th Circuit in support of CAIR Coalition involving Matter of A-B- issues, the 4th Cir. denied the petition for review, but did so in an unpublished decision.

Wishing everyone a very safe and happy Thanksgiving!

All my best, Jeff

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Thanks, Sir Jeffrey!

I’m so thankful for all of the fantastic work that you and our other knightesses and knights of the Round Table do to keep due process and best practices on the forefront and spread truth in the face of tyranny, lies, and false narratives. While we often focus on the weekly amicus briefs we file with tribunals across the nation, the work also goes on in analysis, public speaking, media interviews, teaching, political involvement, video appearances, and grass roots pro bono and community work.

For example, our amazing colleague Judge Charlie Pazar of Tennessee just reported that he was featured on a CLE panel entirely devoted to the work and impact of our Round Table! Way to go Charlie! You are one of those who tirelessly works to improve American justice on all levels and you are certainly “super generous” in sharing your time, knowledge, expertise, and perspective!

Just recently, Sir Jeffrey, along with Round Table knightesses Judge Denise Slavin and Judge Sue Roy, in addition to yours truly and our friend NAIJ President Judge Ashley Tabaddor, were quoted by Suzanne Monyak in a Law360 article about the future of the NAIJ and the Immigration Court in a Biden Administration. Sadly, the article is “hidden behind the pay wall,” but those with access can read it in its entirety.  

Compare these unselfish, teamwork-oriented, effective, expert professional activities aimed at improving the justice system and access to it for everyone with the disgraceful, ignorant, divisive, counterproductive, and often downright racist and illegal actions of the current regime’s immigration kakistocracy, starting, but by no means ending, with the deadly ☠️⚰️🏴‍☠️ “EOIR Clown Show” 🤡!  

Think what a “Better EOIR” and a “better bureaucracy,” led by members of the NDPA could do to solve problems, promote the rule of law and best practices, and make “equal justice for all” a reality rather than a false promise that is intentionally never fulfilled! It isn’t rocket science. But, it does take replacing the kakistocracy, on all levels, throughout Government with experts from the NDPA committed to achieving “good government in the public interest.”

Due Process Forever!

PWS

11-27-20