⚖️ ATTENTION NDPA LITIGATORS & PROSPECTIVE LITIGATORS! — Join Our Round Table Colleague Judge Carol King & The National Institute For Trial Advocacy (“NITA”) For Training, Sept. 27-29 in NYC!

Honorable Carol King
Honorable Carol King
U.S. Immigration Judge (Ret.)
Member, Round Table of Former Immigration Judges

https://www.nita.org/immigration2023

Carol writes:

I know you are in touch with a lot of young lawyers in the NDPA and wanted to let you know about a wonderful trial skills training I’m involved in.  I’ve been teaching for NITA in trainings focused on trial practice in Immigration Court for a few years now, along with Denise, Eliza, Jeff and others.  This upcoming program in New York is for private counsel and is expensive, but totally worth it for new lawyers (and even experienced lawyers) to hone their trial skills.  Judges appreciate it too!  NITA also does public interest trial skills courses in cooperation with the NLGNIP which are more affordable for lawyers working for non-profits.  If you know any young NDPA lawyers working for firms that can afford this program, I highly recommend it!  Please pass this along to anyone you think would benefit.  Here is the info:

Advocacy in Immigration Matters

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September 27, 2023 – September 29, 2023

White & Williams LLP

New York, NY

https://www.nita.org/immigration2023

Thanks!

Carol

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Advocacy in Immigration Matters

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White & Williams LLP Times Square Tower, #2900, New York, NY 10036

September 27, 2023 – September 29, 2023

Your Price: $1,945.00

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**Pre-Program Lecture Online scheduled for Friday, September 22, from 12:00 – 1:30 PM EST.**

WHY YOU SHOULD ATTEND

As an immigration defense lawyer, you know that practicing in immigration court is increasingly rife with changes and complexity. NITA recognizes this reality and, in response, has developed Advocacy in Immigration Matters, a specialized and timely program designed to help you rapidly upgrade your skills in representing those facing removal from the United States.

WHAT YOU WILL LEARN

This is the only trial skills advocacy course available that covers everything you will experience during an immigration trial. From pre-trial to trial, you will receive on-your-feet training and guidance that goes beyond a lecture-focused learning experience. During this three-day program, you will:

  • make and meet objections,
  • conduct direct, cross, and re-direct examinations,
  • accredit a proposed expert witness,
  • obtain the required opinion from an expert witness, and
  • offer a concise yet compelling closing argument.

All of this will be done in small groups of your peers, with feedback and at a pace that will help boost your performance.

The instructors—some of the most experienced immigration trial lawyers and judges in the country—will share constructive feedback and specific ideas on how to refine your skills. As you watch your peers perform, you will also absorb the “teachable moments” from their performance and instructor critique, which means each layer of learning is continually reinforced by what you hear, see, and most importantly, do.

After three days, you will be able to step into the courtroom with the confidence and practical skills you need to be a good advocate for your client.

In addition, to supplement this “learning-by-doing,” you will have access to NITA’s trial skills video lectures and watch the faculty demonstrate skills. Furthermore, NITA will offer a pre-program, one-and-a-half-hour session on case analysis that will be foundational to the rest of the program and will ensure that participants seek and present the information most relevant to the assigned particular social group.

In just three days, this Advocacy in Immigration Matters program—as with the other time-tested, premier programming that NITA is known for—will swiftly refine your trial practice, leaving you with greater skill and confidence that shows up where it matters the most: when you stand shoulder-to-shoulder with your client in the courtroom.

NITA’s LEARNING-BY-DOING METHOD

NITA’s learning-by-doing method allows you to take calculated risks without ever jeopardizing your client’s case or your own reputation. It is a safe space to learn and practice. This course will employ the tried-and-true learning-by-doing method by providing ALL participants the opportunity to apply their learned skills as if they are presenting in court. You get to participate and observe, learning not only from your mistakes and triumphs but those of your fellow participants as well.

Expert faculty will provide you with constructive feedback, and you will have the option of recording yourself on your phone, which allows you to see and hear yourself the way judges and juries do. But unlike in a trial where there are real stakes at risk, at NITA you will have the opportunity to correct your mistakes, eliminate any bad habits you may have developed, and refine your trial skills.

When you return to your office, you will feel empowered by having learned skills that will serve you the rest of your career.

WHO SHOULD ATTEND?

You should!

Although some removal defense cases may not go to trial because of prosecutorial discretion, learning and refining your trial skills will translate into better outcomes for your clients.

Honing your trial skills will improve virtually every aspect of the many things you do as a litigator from negotiating with the OPLA assistant chief counsel to convincing the immigration judge to grant your client relief.

YOUR REGISTRATION INCLUDES

  • One-on-one personalized feedback and coaching from NITA faculty
  • Case materials
  • One credit toward the NITA Advocate Designation.

NITA FACULTY

Learn more about each faculty member’s professional background and their NITA webcasts, podcast episodes, publications, and programs by clicking their bio link below.

WHAT ARE PEOPLE SAYING ABOUT THIS COURSE?

“I would highly recommend this course to immigration practitioners. It was especially helpful for me as someone who began practicing during COVID, but I could see that the skills would also be useful to practice for more experienced practitioners. The course was 100% worth it and I came out of it feeling more confident in my ability to do defensive work.” — NITA – NIPNLG “Advocacy in Immigration Matters” course attendee (August 2022)

“This was literally the most useful training I’ve had in the legal field, including law school, internships and many other PD opportunities I’ve tried to take advantage of. I think in the legal profession, there’s such an emphasis on being right and being prepared that we have a hard time taking risks and messing up. Even in trainings and simulations, I participated very little because I felt like there was this very high amount of minimum knowledge that I needed, didn’t have, and didn’t know how to get. I guess I figured everyone had learned this in debate or Model UN, which I never did. But somehow, the instructors created this baseline understanding that we’re there to learn, we can start from zero, and messing up is welcomed because it shows we’re taking risks. I feel much more ready to work on my cases. What’s more, in a field where burnout is so high, I feel excited to prep for trial now.” — Advocacy in Immigration Matters online course attendee (April 2022)

“In the over twenty years I had the honor to serve as an immigration judge, I frequently saw attorneys who, although bright, dedicated and familiar with their clients’ cases, had very limited understanding of evidentiary rules, proper forms of direct and cross-examination, effective storytelling, and the art of closing argument. These basic trial skills are not usually part of a law school curriculum, and once engaged in the practice of law most attorneys do not take the time to develop or hone their skills, other than by “trial and error,” which is, sadly, sometimes at the expense of their clients. The NITA program provides a unique opportunity to develop these extremely important skills. I encourage those who are seeking to represent asylum seekers in Immigration Court to consider taking advantage of this unique and valuable opportunity.” — Hon. Eliza C. Klein, United States Immigration Judge (Ret.)

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Every dollar you give to The NITA Foundation helps a public service lawyer receive advocacy training that would otherwise be out of reach.

DONATE TODAY

FACULTY

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Carol King

Solo

Carol M King Law Office

BIO

Michelle Mendez

Director of Legal Resources and Training

National Immigration Project of the National Lawyers Guild Inc

BIO

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Tom Swett

Attorney at Law

SWETT LIMITED

BIO

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Victoria Neilson

Supervising Attorney

National Immigration Project of the National Lawyers Guild Inc

BIO

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This is truly an All-Star Faculty of folks who have “walked the walk,” saved many lives, and changed countless futures for the better over their distinguished and varied careers!

I have worked with NITA on developing and presenting advocacy training for VIISTA Villanova. This is a collection of “total pros” dedicated to making America’s courts function at the highest possible level.

Also, as you know from reading publications like LexisNexus, ImmigrationProf Blog, The Jeffrey Chase Blog, and Courtside, LITIGATION MATTERS! Every week, we alert our readers to successful efforts that are having a real life impact and literally changing the face of American law!

🇺🇸Due Process Forever!

PWS

07-27-23

🇺🇸ELECTION 2020: PROTECT THE VOTE!

 

FOR IMMEDIATE RELEASE

For more information:  Megan Matson

415-497-2320 matson@tablerockpartners.com

 

SeeSay2020.com

 

REPORT FOR PUBLICATION TO A LIVE, CROWDSOURCED MAP ALL VOTER STORIES OF SUPPRESSION, INTIMIDATION, & BALLOT COUNTING IRREGULARITIES

 

The Center for Common Ground http://centerforcommonground.org/ together with other supporting organizations launched a program called SeeSay2020.com to promote an honest and fair election in 2020.

 

Reported incidents are reviewed, approved and mapped. Press, legal teams and the public have open access to the voter stories and data as it is published, and incidents requiring action are escalated out to partner legal and press efforts.

 

In addition to publishing their stories to the SeeSay2020.com Map, voters are provided with the help hotline where they can call to get free support from the nation’s largest nonpartisan voter protection coalition at 866-OUR-VOTE or texting OUR VOTE to 97779.

 

With unprecedented levels of voter suppression, court battles over count deadlines, electioneering at the polls and ballot delay, Center for Common Ground’s live documentation processes making voters’ experience public are vital to fighting for and maintaining democracy.

 

We urge you to advertise how voters can report voting irregularities as well as sharing those incidents in your reporting. In fact, MSNBC will be hosting seesay2020.com in their war room on election day. We would be happy for you to do the same.

 

###

Laurie Grossman

(510) 482-1588

lauriegrossman88@gmail.com

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Thanks to my good friend and fellow Round Table member Judge Carol King and her husband Allan for passing along this critical information!

Get out the vote! Make your vote for democracy count!

Due Process Forever!

PWS

11-01-20

DUE PROCESS: “Roundtable of Former Immigration Judges” Gets AILA Award For Due Process Advocacy!

https://www.aila.org/advo-media/press-releases/2019/aila-presents-the-roundtable-of-former-immigration

Roundtable
Representing “The Roundtable”: Judge Polly Webber, Judge Jeffrey S. Chase, Judge Lory D. Rosenberg, Judge Cecelia Espenoza, Judge Sue Roy, Judge Carol KIng

AILA Presents the Roundtable of Former Immigration Judges with the 2019 Advocacy Award

AILA Doc. No. 19062032 | Dated June 19, 2019

CONTACTS:
George Tzamaras

202-507-7649

gtzamaras@aila.org

Belle Woods

202-507-7675

bwoods@aila.org

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) will recognize the Roundtable of Former Immigration Judges, with the 2019 Advocacy Award for outstanding efforts in support of AILA’s advocacy agenda. The roundtable will accept the award this week during AILA’s Annual Conference in Orlando, FL.

The Round Table of Former Immigration Judges was formed in June 2017 when seven former Immigration Judges and BIA Members united for an amicus brief in Matter of Negusie. In the two years since, the group has grown to more than 30 members, dedicated to the principle of due process for all. Its members have served as amici in 14 cases before six different circuit courts, the Attorney General, and the BIA. The group has made its voice heard repeatedly in support of the rights of victims of domestic violence to asylum protection, and has also lent its arguments to the issue of children’s need for counsel in removal proceedings, the impact of remote detention in limiting access to counsel, and the case against indefinite detention of immigrants. The Round Table of Former Immigration Judges has submitted written testimony to Congress and has released numerous press statements. Its individual members regularly participate in teaching, training, and press events.

Cite as AILA Doc. No. 19062032.

And here are Judge Chase’s “acceptance remarks” in behalf of our entire group:

Thank you; we are humbled and honored to receive this award.  Due to the time constraints on our speeches, I don’t have time to either name all of the members of our group, or to thank all those to whom thanks is due.  So I will do that in a blog post.

 

In terms of advocacy, we are all advocates – everyone in this room, all AILA members.  The past experience of our group as former judges gives us more of a platform. But it is a special group, in that so many have chosen to spend their post-government careers or their retirement actively fighting to make a difference in these trying times.  

 

In fighting to make that difference, we must all speak for those who have no voice, and must serve as the conscience in a time of amoral government actions.  Those whom we advocate for had the courage and strength to not only escape tragedy and make their way to this country, but once here, to continue to fight for their legal rights against a government that makes no secret of its disdain for their existence.  We owe it to them to use our knowledge and skills to aid them in this fight.

 

In conclusion, I will quote the response of one of our group members who isn’t here tonight upon learning of this award: “It’s nice to be recognized.  Now let’s get back to work.”

 

Thank you all again.
 
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Congrats to all of my 30+ wonderful colleagues in “The Roundtable.” It’s an honor to be part of this group. Also, many, many thanks to all of the firms and individual lawyers who have provided hundreds of hours of pro bono assistance to us so that we could have a “voice.” It’s been a real team effort!

PWS

06-21-19

DOJ ATTORNEYS ATTEMPT SMEAR ON JUDGE CAROL KING IN CONNECTION WITH FLORES LITIGATION!!

NOTE:  This story originally “broke” in a report by Suzanne Monyak at Law 360. Those with access can check it out here: https://www.law360.com/articles/1081651/gov-t-decries-pick-to-monitor-facilities-for-immigrant-kids

Link to original court filings kindly provided by Dan Kowalski at LexisNexis Immigration Community.

 

https://dlbjbjzgnk95t.cloudfront.net/1081000/1081651/031128961307.pdf

Defendants respectfully object to the appointment of former immigration judge (“IJ”) Carol King as the Flores independent monitor. As an initial matter, while Defendants agree that former IJ King has significant experience with immigration law, Defendants object because former IJ King appears to have little or no direct experience with U.S. Customs and Border Protection (“CBP”) or U.S. Immigration and Customs Enforcement (“ICE”) holding and detention facilities themselves, or more specifically with the conditions at such facilities, the management of such facilities, or the legal standards applicable to such facilities, which go beyond substantive immigration law.

Moreover, former IJ King has no demonstrated background in overseeing complex litigation or compliance with consent decrees. Immigration judges have limited powers delegated to them by regulation to decide individual cases, and only for matters designated to them under the Immigration and Nationality Act. 8 C.F.R. § 1003.10(b). This is very different from the substantial and complex task of overseeing the operations of multiple agencies as is required in the present matter. Given this lack of experience, Defendants disagree that former IJ King would have only a “minimal learning curve” in undertaking to serve as an independent monitor related to the issues in the Court’s June 27, 2017 order.

Defendants also object to the appointment of former IJ King on the ground that she has published a writing to promote her law practice that gives the appearance of a very real and serious bias against the defendants. These sentiments, expressed publicly, at the very least create the appearance that former IJ King would not carry out her duties as special master with the type of impartiality that is required for a quasi-judicial role. These statements criticize a defendant in this matter – the Attorney General – and address policies relating to children subject to the Flores Agreement.

Specifically, on her law office web site, former IJ King states in the “Introduction to Carol King Law Office” that “[t]he current wave of attacks on immigrants [that] has clearly been manufactured . . . to sow division and grab power” includes “those who have been so viciously attacked . . . immigrant parents and young children.” Introduction to Carol King Law Office, July 9, 2018, available at: https://carolkinglawoffice.com/2018/07/09/hello-world/. Former IJ King further states that “[t]he lack of any ethical, moral or compassionate compass reflected in the current administration is more disturbing than anything in recent history[,]” and that the “current actions on the part of the President, Attorney General and administration, which reflect only a commitment to power and to hatred, hurt me so deeply.” Id.

To be sure, there is nothing improper about holding strong views on government policies, but public statements such as these are not consistent with performing the quasi-judicial function of a special master, where officers must meticulously avoid “[c]onduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge” because it “undermines public confidence in the judiciary.” ABA Model Rules of Judicial Conduct 1.2, Comment [3]; see id. Comment [5] (“[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge . . . engaged in other conduct that reflects adversely on the judge’s . . . impartiality”). The published criticism of a named defendant, and of government policies related to children who are subject to the Flores Agreement, as an introduction to her law practice do not, Defendants submit, meet this exacting standard. A reasonable person could question, in light of such statements, whether former IJ King will be impartial in evaluating compliance with this Court’s orders for facilities that are currently operated by Defendants CBP and ICE, who are agencies of that same administration against which former IJ King has a clearly and publicly expressed bias. Defendants therefore object to the appointment of former IJ King as an independent monitor in this case.

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Let’s get this straight! The DOJ Attorneys who filed this with Judge Gee represent and work for a named defendant Jeff Sessions who:

  • Unapologetically masterminded the “zero tolerance” policy that resulted in the unconstitutional separation of children and the intentional violation of Judge Gee’s earlier order in the case;
  • After having his legal arguments soundly rejected by Judge Gee is actively trying to “back door” his contemptuous behavior by proposing unlawful regulations that any reasonable person would know would be “dead on arrival;”
  • This week told supposedly “fair and impartial” judges who work for him, without any supporting evidence, that “the vast majority of the current asylum claims are not valid under the law;”
  • Knowingly and intentionally misrepresented the DOJ’s own statistics relating to asylum grants on the merits to understate the grant rates to make them appear to support his false anti-asylum narrative;
  • Warned Immigration Judges not to be “sympathetic” toward asylum applicants appearing before them in Immigration Court;
  • Intentionally created a false narrative linking asylum policy to Southern Border arrivals that ignores the majority of reliable studies showing that refugee producing conditions in foreign countries, not changes in US policy, drive individuals to seek refuge;
  • In the words of AILA, before Immigration Judges expressed his “disdain for lawyers who take a solemn oath to uphold the law” and showed “a complete disregard for the role of independent judges in overseeing our adversarial system;”
  • In front of a group of Immigration Judges referred to attorneys representing individuals asylum cases (many serving pro bono or “low bono”) as “dirty lawyers;”
  • Promoted the role of “judges” as enforcement officers rather than fair, impartial, independent adjudicators;
  • Unethically acted in a quasi-judicial capacity in Matter of A-B- after publicly prejudging the substantive issue in the case during a radio interview.

So, how do these DOJ lawyers, with straight faces and in compliance with their ethical duties, have the audacity to argue the ABA Model Rules of Judicial Conduct against Judge King (who does not currently serve in any judicial capacity) when their own boss and named defendant is in violation of that provision (and also the EOIR’s own rules of judicial conduct). No “reasonable person” would believe that Jeff Sessions, in light of his public antipathy to migrants, asylum seekers, and their lawyers, and his clear, highly inappropriate favoritism for DHS Enforcement could properly and ethically run the Immigration Courts and actually act in a quasi-judicial capacity in individual cases! Yet, he is still doing both, to the detriment of Due Process and the rule of law.

Jeff Sessions has total contempt for the Constitution, the law, and courts of every type (both the ones he controls and the ones he appears before through DOJ attorneys). At some point, the Article IIIs, if they wish to maintain their position as a “separate but equal Branch” are going to have to take on the biased, contemptuous, and overtly unethical performance of Attorney General Sessions head on. Otherwise, he will run right over them as he has the US Immigration Courts and the Constitutional guarantee of Due Process.

PWS

09-12-18

 

 

 

THE LATEST FROM THE HON. JEFFREY CHASE: “Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker” — PLUS: A Link To The Actual Brief! — MATUMONA V. SESSIONS, 10th Cir.

https://www.jeffreyschase.com/blog/2018/3/22/amicus-brief-filed-in-10th-cir-petition-for-remotely-detained-asylum-seeker

Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker

An amicus brief was filed yesterday by attorneys at the law firm of Sidley Austin on behalf of an asylum seeker from the Democratic Republic of Congo in the case of Matumona v. Sessions.  Fleeing for his life and seeking asylum in the U.S., the petitioner upon arrival was detained by DHS in the Cibola County Detention Center in New Mexico.

To call Cibola remotely located is truly an understatement.  If you Google Map it, you will see that the detention center is surrounded on the east, south, and west by the stunningly scenic, 263,000 acre El Malpais National Conservation Area.  Moving out a bit further, the map shows reservations of the Zuni, Navajo, and Apache nations, beyond which lies the Sevilleta National Wildlife Refuge, and both the Carson and Santa Fe National Forests.

In fairness, Albuquerque is an hour and a half drive away.  However, that city has a total of 36 attorneys who are members of the American Immigration Lawyers Association, working for 25 offices or organizations.  By comparison, New York City has well over a thousand AILA members (not including many others located in the surrounding suburbs). The problem of representation is compounded by the fact that the petitioner, although detained at Cibola, had his removal hearings in the Immigration Court in Denver, 500 miles away.  The National Immigrant Justice Center was able to identify only 21 attorneys in all of New Mexico and Texas who would be willing to represent detainees at Cibola in their removal proceedings. For those requiring pro bono representation, the options are even fewer. According to the latest figures provided by DHS, there were 689 non-citizens being detained in Cibola, and that was less than the facility’s full capacity.

Therefore, close to none of those detained at Cibola are able to exercise their constitutional right to be represented by an attorney, as assigned counsel at government expense does not exist in immigration proceedings.  A study by the Vera Institute of Justice found a staggering 1,100 percent increase in successful outcomes when universal representation was made available to the detained population at the Varick Street Detention Facility in New York City.  I will note that universal representation was possible there because the Varick Street facility is located in the heart of New York City, within walking distance of a multitude of immigration law offices, law school clinics, and not-for-profit organizations.

Left to represent themselves, asylum seekers detained at Cibola and other similar remote facilities are further hampered in their limited access to phones (which are necessary to contact friends and relatives abroad who might provide evidence to corroborate the asylum claim), and lack of access to the internet (which would allow detainees to research the law and to access and download country condition materials in support of their claims).  Additionally, detention centers tend to have inadequate law libraries. Furthermore, detainees are required to complete their applications, conduct research, and file supporting documents in English, which is incredibly difficult for someone such as the petitioner, whose native language is Lingala. EOIR’s own statistics show that only ten percent of respondents in removal proceedings last year had enough of a command of English to allow them to participate in their proceedings in that language.  As asylum seekers have often suffered torture or other violence, post-traumatic stress disorder and other physical or psychological remnants of their past mistreatment (which might be further exacerbated by their detention) creates an additional obstacle to self-representation. All of this overlooks the fact that U.S. asylum law is highly complex even for educated English-speakers.

The latest amicus brief raises these and other points on behalf of a group of former immigration judges and BIA Board members.  The brief further makes recommendations for practices to be adopted by immigration judges to help mitigate the above-cited obstacles to pro se applicants in pursuing relief. These recommendations include having the immigration judges explain the applicable legal standard (and any bars to relief) to pro se applicants; introducing country condition evidence (as well as making applicants aware of country condition resources available on EOIR’s own Virtual Law Library); and advocating for free, uninterrupted access to telephones for respondents in detention centers.

To my knowledge, our amicus brief filed with the BIA last summer in the U.S. Supreme Courts remand of Negusie v. Holder was the first time that former immigration judges and Board members identified as a group for amicus purposes.  The seven of us who participated in that brief doubled to 14 for the next such brief, filed with the Attorney General last month in Matter of Castro-Tum.  I see it as a positive development that in the short time since these briefs were filed, we have been called upon to provide our experience in expertise in two more cases, one filed last week in the Ninth Circuit on the issue of representation for children in immigration proceedings (C.J.L.G. v. Sessions), and now in this case filed yesterday in the Tenth Circuit.  Hopefully, this outstanding group will continue to contribute to the cause of justice for vulnerable noncitizens in removal proceedings.

And our heartfelt thanks to the dedicated attorneys at Sidley Austin, Jean-Claude Andre and Katelyn Rowe, for drafting the outstanding brief.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED BY PERMISSION

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HERE’S A COPY OF OUR BRIEF, PREPARED BY THE FABULOUS Jean-Claude André, & Katelyn N. Rowe, Sidley Austin LLP, LOS ANGELES, CA:

Matumona v Sessions Amicus Brief Final

HERE’S THE TABLE OF CONTENTS:

Identity and Interest of Amici Curiae …………………………………1

 

ARGUMENT …………………………………………………………………………………………………………………..2

I. Immigrants face significant obstacles to accessing justice when they are held in
remote detention facilities……………………………………………………………………………………….7

II. Immigrants are deprived of access to justice when they have no legal
representation, and Immigration Judges are unable to meaningfully fill this justice gap……………………………………………………………………………………………………………………..15

III. Immigration Judges should adopt certain best practices that can better enable
them to develop a proper record in cases involving pro se litigants…………………………….25

CONCLUSION………………………………………………………………………………………………………………30 APPENDIX……………………………………………………………………………………………………………..App. 1

HERE’S THE “CAST OF CHARACTERS:”

The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.

The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.

 

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. Judge Einhorn is also a contributing op-ed columnist at the D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a member of the Board of Immigration Appeals from 2000-2003. She then served in various positions at the Office of the General Counsel for the Executive Office for Immigration Review from 2003-2017, including Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. Judge Espenoza presently works in private practice as an independent consultant on immigration law and is also a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. Judge Espenoza is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law, and in 2014 she was recognized as the University of Utah Law School’s Alumna of the Year. She also received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990. Judge Espenoza has published several articles on Immigration Law.

The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Eliza Klein served as an Immigration Judge from 1994 to 2015 and presided over immigration cases in Miami, Boston, and Chicago. During her tenure, Judge Klein adjudicated well over 20,000 cases, issuing decisions on removal, asylum applications, and related matters. Judge Klein currently practices immigration law at the Gil Law Group in Aurora, Illinois.

The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct professor of law and taught immigration law at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for the American Immigration Lawyers Association and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986- 1987, 1979-1981) and Deputy General Counsel (1978-1987). He worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. He also practiced business immigration law with the Washington, D.C., office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ) and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.

HERE’S A SUMMARY OF THE ARGUMENT:

Thousands of immigrants are currently detained in detention facilities that are located hours away from the nearest urban areas. See Kyle Kim, Immigrants held in remote ICE facilities struggle to find legal aid before they’re deported, L.A. Times (Sept. 28, 2017), http://www.latimes.com/projects/la-na-access-to- counsel-deportation/ (“About 30% of detained immigrants are held in facilities more than 100 miles from the nearest government-listed legal aid resource.”); Human Rights First, Jails and Jumpsuits: Transforming the U.S. Immigration Detention System—A Two Year Review 44 (2011), https://www.humanrightsfirst.org/wp-content/uploads/pdf/HRF-Jails-and- Jumpsuits-report.pdf (“40 percent of all ICE bed space is currently more than 60 miles from an urban center.”). These immigrants will struggle, and often fail, to retain an attorney who has the time, resources, and relevant expertise to represent them through complex removal proceedings. Even when detained immigrants do secure legal representation, this relationship may be jeopardized by a variety of remote detention conditions: lack of adequate access to telephones in detention facilities; the possibility of being transferred from one detention facility to another; and the difficulty for attorneys to regularly visit remote detention facilities.

For those immigrants that must journey through the labyrinth of immigration court proceedings alone, countless obstacles abound. See Baltazar-Alcazar v. I.N.S., 386 F.3d 940, 948 (9th Cir. 2004) (“[T]he immigration laws have been termed second only to the Internal Revenue Code in complexity. A lawyer is often the only person who could thread the labyrinth.”); Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (“This case vividly illustrates the labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike.”); Lok v. Immigration & Naturalization Serv., 548 F.2d 37, 38 (2d Cir. 1997) (noting that the Immigration and Nationality Act bears a “striking resemblance . . . [to] King Minos’s labyrinth in ancient Crete”). Language barriers will often undermine an immigrant’s ability to effectively represent herself. Although pro se immigrants will receive interpreters during their court hearings, they are still required to complete asylum applications and other court filings in English. In addition, the law libraries at remote detention facilities often have inadequate legal resources that are not up-to-date and/or have not been translated into the immigrant’s native language. These obstacles make it extremely difficult for pro se immigrants to learn about possible claims for relief and determine whether they are even eligible to make such claims. See Chicago Appleseed Fund for Justice, Assembly Line Injustice: Blueprint to Reform America’s Immigration Courts 29 (2009), http://appleseednetwork.org/wp-content/uploads/2012/05/Assembly-Line- Injustice-Blueprint-to-Reform-Americas-Immigration-Courts1.pdf (“Those immigrants appearing without a lawyer, or ‘pro se,’ often enter the system without any understanding of the process before them, much less of the grounds for relief that may be available to them.”).

Petitioner Adama Heureux Matumona of the Democratic Republic of Congo faced many of these access-to-justice obstacles because he was detained at the Cibola County Detention Center, which is located approximately 300 miles away from some of the nearest pro bono legal services providers and 500 miles away from his immigration court hearings. (AR 20, 432) Mr. Matumona was unable to secure legal representation because he did not have the financial means to pay for a private attorney. (AR 10, 16, 277) Of the three pro bono legal services providers that the Immigration Judge recommended, two did not represent immigrants in Cibola and the third did not have adequate interpretation services to communicate with Mr. Matumona, who is a native Lingala speaker. (AR 250, 252, 432) In addition, Mr. Matumona could not find pro bono counsel on his own because he did not have enough money to pay for the telephone service at Cibola and was not granted free access to telephones at Cibola. (AR 10, 20)

As a pro se litigant, Mr. Matumona’s likelihood of securing relief in his removal proceedings was significantly limited. Despite the fact that Mr. Matumona does not speak English, the Immigration Judge expected him to complete his asylum application and other court filings in English. (AR 303) All the while, Mr. Matumona has endured residual trauma from fleeing his home country out of fear that his community organizing activities would lead to his imprisonment, disappearance, or death by the ruling regime. (AR 339-42) This trauma was further exacerbated by the many months Mr. Matumona has spent in detention, separated from his wife, eight children, and other family members. (AR 324) All of these factors made it more burdensome for Mr. Matumona to build and present his case than if he had been represented by counsel from the beginning.

In amici’s decades of experience, immigrants like Mr. Matumona who lack access to counsel and are held in remote detention facilities will be deprived of a meaningful opportunity to investigate and develop their cases to a degree that is consistent with the requirements of due process. Immigration Judges are limited in their ability to fill this justice gap due to time constraints caused by backlogged dockets and pressure to avoid coaching pro se immigrants because it contravenes their mandate of impartial arbiter. While Immigration Judges can grant continuances to give pro se immigrants additional time to find counsel or collect evidence, this action also has the negative consequences of increasing docket backlog and prolonging an immigrant’s time in detention. In addition, the Executive Office for Immigration Review has cautioned that “an Immigration Judge must carefully consider not just the number of continuances granted, but also the length of such continuances” and “should not routinely or automatically grant continuances absent a showing of good cause or a clear case law basis.” Exec. Office for Immigration Review, Operating Policies and Procedures Memorandum 17-01: Continuances 3 (July 31, 2017), https://www.justice.gov/eoir/file/oppm17- 01/download (“OPPM 17-01: Continuances”). This kind of directive has a chilling effect on Immigration Judges who may be inclined to grant continuances in cases where they believe it is necessary to protect due process. Moreover, there is no guarantee that a continuance will enable a pro se immigrant to secure counsel or obtain needed evidence—especially in light of the other obstacles that detained immigrants face in remote detention facilities. Thus, the combination of remote detention and lack of legal representation not only impedes immigrants’ access to justice, but also overburdens the operation of the immigration system as a whole.

Amici respectfully submit that the Board of Immigration Appeals did not recognize the various access-to-justice barriers that Mr. Matumona faced in presenting his case to the Immigration Judge. Therefore, this Court should grant Mr. Matumona’s Petition for Review, vacate the Board of Immigration Appeals’ decision, and remand his case. In addition, amici request that this Court encourage Immigration Judges to adopt certain best practices, described below in Part III, that will ensure a detailed record is developed in cases with pro se immigrants so that they receive meaningful review of their claims for relief.

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Thanks again to J.C., Katelyn, Sidley Austin, and my wonderful colleagues who joined in the brief. For better or worse, there is no shortage of opportunities for Amicus involvement in the current climate.

PWS

03-23-18

 

 

 

 

 

HON. JEFFREY CHASE WITH MORE ANALYSIS OF THE CASTRO-TUM AMICUS BRIEFS!

https://www.jeffreyschase.com/blog/2018/3/4/14-former-ijs-and-bia-members-file-amicus-brief-with-ag

14 Former IJs and BIA Members File Amicus Brief with AG

On February 16, the law firm of Akin Gump Strauss Hauer & Feld LLP filed an amicus curiae (i.e. “friend of the court”) brief on behalf of 14 former immigration judges and BIA board members with Attorney General Jeff Sessions pursuant to his request in Matter of Castro-Tum.  In that decision, the Attorney General certified to himself an unpublished decision, in which he requested amicus briefs on the following:  (1) whether IJs and the BIA have the authority administratively close cases, and if so, whether the BIA’s precedent decisions “articulate the appropriate standard for administrative closure”  (2) If it is determined that IJs lack such authority, should the AG delegate it, or conversely, if the IJs have such authority, should the AG withdraw it; (3) can the purpose of administrative closure be satisfied through other docket management devices; and (4) if the AG determines that IJs and the BIA lack such authority, what should be done with the cases already closed.

As immigration judges and the BIA have exercised their authority to administratively close cases for decades, the AG suddenly raising these questions on his own would seem to signal his intent to do away with this important docket-management tool.  As background, the respondent in Castro-Tum is an unrepresented, unaccompanied minor.  When he did not appear for a scheduled removal hearing after the immigration court mailed a notice to what it was told was the minor’s address, the DHS attorney requested the immigration judge to order the child removed from the U.S.  However, the IJ had questions concerning the reliability of the mailing address that the government provided to the immigration court, and declined to enter the removal order, administratively closing the proceedings instead.  The DHS attorney appealed.  It should be noted that the appeal did not challenge an immigration judge’s right generally to administratively close cases; the DHS believed that in this particular case, the evidence of record should have required the IJ to enter an order of removal.  The BIA agreed with the DHS, and reversed the IJ’s order.  It was at that point that the AG inserted himself into the matter by certifying an already-resolved matter to himself and turning it into a challenge to the overall authority to administratively close any case.

Numerous groups filed amicus briefs in this case; they include those that represent unaccompanied children; immigrant rights groups, and academic clinicians.  The American Immigration Council (AIC) argued in its brief that AG Sessions’ history of hostility towards noncitizens renders him unfit to decide the issue raised in Castro-Tum.  Our group of former IJs and Board members brought a unique perspective to the issue, based on our many years of collective experience managing case dockets and addressing the issues that administrative closure is designed to remedy.

Immigration Judges exist by statute.  Therefore, the inherent powers delegated to them (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) come from Congress, and not the Attorney General.  As our brief explains, such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts.  Federal regulations issued by the Department of Justice grant immigration judges the power to “exercise their independent judgment and discretion,” including the ability to “take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition” of the individual cases appearing before them.

Furthermore, the BIA has set out the proper standard for determining whether a case should be administratively closed or required to proceed.  In Matter of Avetisyan, the Board laid out the criteria that may properly be considered in determining whether administrative closure is appropriate.  In Matter of W-Y-U-, the Board added that the most important consideration is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.  The immigration judge is required set forth his or her reasons for administrative closure in a decision which may be reviewed on appeal to both the BIA and the federal circuit courts.

The brief additionally points out the inadequacy of other existing tools.  In Avetisyan, the immigration judge granted multiple continuances to allow DHS to adjudicate a visa petition filed on behalf of the respondent.  However, the petition could not be adjudicated because USCIS (which adjudicates such petitions) was required to keep returning the file to the ICE prosecutor before it could get to the petition because it was needed for the next immigration court hearing (which was only scheduled to check on the status of the visa petition).  The file remained in constant orbit, never remaining with USCIS long enough to allow for adjudication of the petition, which in turn would require another continuance.  Furthermore, federal regulation specifically requires that immigration proceedings by administratively closed before USCIS will adjudicate certain waivers of inadmissibility.  As noted in the brief, DHS defended such administrative closure requirement when its necessity was questioned by a comment on the proposed regulation.

Our group of amici expresses our sincere gratitude to the outstanding attorneys at Akin Gump who provided their pro bono assistance:  partner Steven H. Schulman; Andrew Schwerin, the primary drafter; and  Martine Cicconi, Mallory Jones, and Chris Chamberlain, who drafted sections of the brief.  We also thank Prof. Deborah Anker of Harvard Law School and the staff and students of the Harvard Immigration and Refugee Clinic for its invaluable support and insights.  The amici included  in our brief were former BIA Chair and Board Member and former Immigration Judge Paul W. Schmidt; former Board Members Cecelia M. Espenoza, Lory D. Rosenberg, Gustavo D. Villageliu, and former Immigration Judges Sarah M. Burr, Bruce J. Einhorn, Noel Ferris, John F. Gossart, Jr., William P. Joyce, Edward Kandler, Carol King, Susan Roy, Polly A. Webber, and myself.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED WITH PERMISSION.

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As a mentioned earlier, the leaders of this effort were Jeffrey, Judge Lory Diana Rosenberg, and Judge Carol King! an honor and a pleasure to work with all of them to restore Due Process to our Immigration Court
system.

PWS

03-04-18

“GANG OF 14” FORMER IMMIGRATION JUDGES AND BIA APPELLATE IMMIGRATION JUDGES (INCLUDING ME) FILE AMICUS BRIEF IN SUPPORT OF ADMINISTRATIVE CLOSING! – Matter of Castro-Tum

HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

Amici curiae are retired Immigration Judges and former members of the Board of Immigration Appeals, who seek to address the Attorney General’s certified questions regarding administrative closure. Amici were appointed to serve at immigration courts around the United States and with the Board, and at senior positions with the Executive Office of Immigration Review. From their many combined years of service, amici have intimate knowledge of the operation of the immigration courts, including the importance of various procedural mechanisms to maintain efficient dockets. As explained in detail, administrative closure, when used judiciously, is a critical tool for immigration judges in managing their dockets. Without tools like administrative closure, immigration judges would be hampered, unable to set aside those matters that do not yet require court intervention and thus prevented from focusing on the removal cases that demand immediate attention.

In particular, the Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and Page 2 of 32 is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Page 3 of 32 Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War. Page 4 of 32

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Edward Kandler was appointed as an Immigration Judge in October 1998. Prior to his appointment to the Immigration Court in Seattle in June 2004, he served as an Immigration Judge at the Immigration Court in San Francisco from August 2000 to June 2004 and at the Immigration Court in New York City from October 1998 to August 2000. Judge Kandler received a Bachelor of Arts degree in 1971 from California State University at San Francisco, a Master of Arts degree in 1974 from California State University at Hayward, and a Juris Doctorate in 1981 from the University of California at Davis. Judge Kandler served as an assistant U.S. trustee for the Western District of Washington from 1988 to 1998. He worked as an attorney for the law firm of Chinello, Chinello, Shelton & Auchard in Fresno, California, in 1988. From 1983 to 1988, Judge Kandler served as an assistant U.S. attorney in the Eastern District of California. He was also with the San Francisco law firm of Breon, Galgani, Godino from 1981 to 1983. Judge Kandler is a member of the California Bar.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Page 5 of 32 Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Prop Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association. Page 6 of 32

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. She has also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School. Page 7 of 32

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review until he retired in 2011, helping manage FOIA, Privacy and Security as EOIR Records Manager. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket 1990-95. Mr. Villageliu was a member of the Iowa, Florida and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, Iowa he joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT………………………………………………………………………………………………………………… 7

I. Immigration Judges and the Board have inherent and delegated authority to order administrative closure in a case ……………………………………………………………………………… 7

A. Federal courts have recognized that judges possess an inherent authority to order administrative closure………………………………………………………………………… 8

B. Regulations establishing and governing Immigration Judges ratify their inherent authority to order administrative closure. …………………………………………. 9

II. The Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure……………………………………………………………………….. 13

A. The legal standard set forth in Avetisyan and W-Y-U- gives the Immigration Judge the correct degree of independence in deciding motions for administrative closure. ……………………………………………………………………………… 13

B. The facts and disposition of the case at bar show that the legal standard under Avetisyan and W-Y-U- is working correctly. ………………………………………………… 16

III. Fundamental principles of administrative law hold that the Attorney General cannot change the regulations that grant this authority without proper notice and comment rulemaking. ……………………………………………………………………………………………………….. 18

A. Practical docket management considerations weigh in favor of retaining administrative closure. ……………………………………………………………………………… 19

B. Due process considerations also weigh in favor of retaining administrative closure. …………………………………………………………………………………………………… 21

IV. Options such as continuances, dismissal without prejudice, and termination without prejudice, are suboptimal as compared to administrative closure. …………………………….. 22

V. There is no reason to attach legal consequences to administrative closure. ………………… 25

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

Former IJs and Retired BIA Members – FINAL Castro-Tum Brief

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  • Thanks again to all retired my colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!
  • Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!
  • “Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!

PWS

02-17-18