"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Gagged” Garland’s DOJ has taken extreme steps to stop Immigration Judges from publicly criticizing his dysfunctional Immigration Courts! PHOTO: Public Domain via Creative Commons
Joe Davidson, “Federal Insider,” from p. 2 of today’s WashPost (print edition):
. . . .
In a February email to New York-based immigration Judge Mimi Tsankov, the union president, and Judge Samuel Cole, the union’s executive vice president in Chicago, Sheila McNulty, the chief immigration judge in the department’s Executive Office for Immigration Review (EOIR), said they are prohibited from making public statements “without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary.”
That warning came after Tsankov in October told a Senate Judiciary immigration subcommittee hearing that “Democrat and Republican administrations share the failure of the DOJ’s immigration court management,” saying “immigration courts have faced structural deficiencies, crushing caseloads, and unacceptable backlogs for many years.” Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), NAIJ’s parent union, cited Tsankov’s congressional testimony as an example of giving “judges a voice” that’s now silenced.
McNulty referred to a controversial and hotly contested Trump administration action that led to the decertification of the immigration judges’ union, when she wrote “any bargaining agreement … that may have existed previously is not valid at present.”
On Nov. 2, 2020, the day before Trump, who waged war on federal unions, lost his reelection bid, the Federal Labor Relations Authority ruled that immigration judges are management employees precluded from union representation. That means, according to McNulty, they cannot speak out as union leaders because she considers their association to be a “group” and not a recognized labor organization. IFPTE has asked the Biden administration to reverse the immigration review office’s “inappropriate and misguided application of the agency speaking engagement policy.”
This must be an embarrassment to proudly pro-union President Biden, who reversed other anti-federal labor organization policies put in place under Trump.
McNulty’s action drew heated reaction from three Republicans who often vote against union interests. “The Committee takes seriously the Department’s effort to silence immigration judges,” wrote Reps. Jim Jordan (R-Ohio) and Tom McClintock (R-Calif.), chairmen of the House Judiciary Committee and its immigration subcommittee, respectively. In a letter to the attorney general, Sen. Chuck Grassley (R-Iowa) said any effort “to silence immigration judges … is absolutely unacceptable.”
Grassley also noted that McNulty’s order “failed to include the anti-gag provision as required by law.”
That’s a key point in the Office of Special Counsel’s notice.
. . . .
[IFPTE President Matt] Biggs called the Justice Department office’s policy “an outrageous act of censure and an attack on freedom of the press and transparency.”
“Intentionally or not,” he added, the directive “resulted in a not-so-subtle message to rank-and-file immigration judges to think carefully before talking to congressional lawmakers as whistleblowers or otherwise.”
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Hon. Mimi Tsankov President, NAIJ — She “blew the whistle” on the continuing “bipartisan due process mess at EOIR” during recent Congressional testimony. Her “DOJ handlers” were not amused!
Read Joe’s complete column at the above link.
Both Parties, Congress, the Executive, and the Article III Courts share blame for the current untenable mess at EOIR, where Due Process, fundamental fairness, quality control, expertise, and practical efficiency are mere afterthoughts, at best! Although there is no sign that it will happen in the near future, the answer is clear and has been for decades: Congress must put aside partisan differences, stop “jockeying for advantage,” and create an independent Article I Immigration Court with a merit-based selection system for judges and professional court administration. Then, let the system work and the chips fall where they may!
You can’t “run” a court system like a “Vatican-style” bureaucratic agency! How many times does that have to be proved for Congress to finally act? Yes, it’s a “big deal!’ Probably the biggest, most widely ignored, most achievable, most important (millions of lives and futures are literally at stake here) piece of solving the “immigration puzzle!”
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
. . . .
Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Hon. Samuel B. Cole Executive Vice President NAIJ PHOTO: NAIJ
Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18
October 16, 2023, 5:13 pm
WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.
NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)
An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.
Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).
The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.
PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525
Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.
This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)
The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.
Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.
Inside Immigration Court: The Pros, Cons Of Remote Hearings
By Mimi Tsankov | June 2, 2023, 6:05 PM EDT ·
Listen to article
In this Expert Analysis series, immigration judges discuss best practices for attorneys who appear before them and important developments in immigration court practice for cases involving asylum, detention, deportation and adjustment to lawful permanent resident status.
Hon. Mimi Tsankov President,NAIJ
Mimi Tsankov
The pandemic has reset settled expectations about how we interact in the workplace, and that transformation has hurled the nation’s immigration courts on a technological voyage into the 21st century.
Despite record congressional appropriations over the past few cycles targeted, in part, on technological advances, the court has relied historically on physical files, paper communications and traditional, in-person exchanges.[1]
Although video teleconferencing has been in limited use at the immigration court since the mid-1990s, those hearings were most often in detained settings, relying typically on judges, attorneys, interpreters and legal staff who were physically present in the courthouse.[2]
During the pandemic, with court staff hamstrung for months, struggling to process mountains of court-paper filings, and judges in some jurisdictions unable to hold hearings, EOIR rolled out about 100 specially equipped laptops with digital audio recording applications installed and connected to a commercially available video conferencing application called Cisco Webex.
These so-called DAR laptops enable the parties, the witnesses, the public and even the judge to appear at hearings virtually because the laptops can digitally record the video hearings in the same way as a judge in a courtroom.[3]
This powerful advance was made all the more effective with the introduction of the EOIR Courts and Appeals System, or ECAS, an online tool for filing and maintaining records of proceeding that is now operational throughout the entire immigration court system.[4]
. . . .
With improvements sure to be made as technological capabilities advance in the years ahead, the OIG has recommended that immigration courts “[c]ontinue the deployment of remote kits to immigration judges to ensure that immigration judges have the equipment necessary to adjudicate hearings efficiently from non-court settings.” This way, judges can more easily assist courts in areas overwhelmed by new cases, and mitigate health- and safety-related court cancelations.
Expansion of the remote judge corps program offers obvious efficiencies, especially if the court is able to speed up and optimize digitization of our backlogged files. Although there are some courts that are reducing reliance on the remote hearing program, as of February that appears to be an anomaly given the overwhelming support nationwide for the program.[14]
With the trial immigration judges poised to adapt and adopt these advances, it will be up to EOIR management to lead the way in determining how quickly and effectively these and other stakeholder-identified challenges can be addressed.
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Thanks, Mimi, for all you do for due process and American justice! The above link will take you to the full article, complete with citations and disclaimer.
Sadly, my friend, waiting for “EOIR management to lead the way,” is likely to be “Waiting for Godot.”
Immigration practitioners waiting for EOIR “Management” to show. It could be a long wait. Very long! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011
Experts on the immigration court system will highlight the systemic problems in the US immigration system that have caused and sustained the backlog, and offer recommendations for reversing the backlog.
Speakers include:
Donald Kerwin, former executive director of CMS and Editor of the Journal of Migration and Human Security
Mimi Tsankov, President, National Association of Immigration Judges and member, Expert Advisory Group
Richard A. Boswell, Professor of Law, UC College of Law, San Francisco, and member, Expert Advisory Group
As well as additional members of the Expert Advisory Group:
Gregory Chen, Senior Director of Government Relations, American Immigration Lawyers Association
Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc.
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver, and Jacobsen, LLP
Hon. Dana Leigh Marks (retired), President Emerita, National Association of Immigration Judges (in her personal capacity)
Michele Pistone, Professor of Law, Villanova University
Andrew Schoenholtz, Professor from Practice, Georgetown University Law Center
Denise Noonan Slavin, retired judge, Adjunct Professor, St. Thomas University School of Law
Charles Wheeler, Senior Attorney/Director Emeritus, Catholic Legal Immigration Network, Inc.
The Center for Migration Studies (CMS) is a New York-based educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. For more information, please visit www.cmsny.org.
To be bluntly honest, this panel of experts appears to be the group that an Administration seriously committed to restoring due process, fundamental fairness, and best practices to the “retail level” of U.S. justice would have hired in January 2021, to clean house 🧹 and institute lasting institutional reforms at America’s worst courts!
They have been “hiding in plain sight” for the past 2.5 years while Garland has been flailing and failing to bring order and long-overdue reforms to his tragically broken system!
Isn’t it time to finally get the “EOIR Clown Show” off the road before it causes more fatalities? Many experts think so! PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times
Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.
Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.
. . . .
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
. . . . .
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.
. . . .
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Read the full article at the link.
EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Courtside Exclusive
May 16, 2023
While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/
Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.
Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.
I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.
Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.
Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.
Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.
The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.
In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.
There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.
The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.
Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.
Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.
So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.
Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.
Recently, a veteran practitioner before EOIR wrote the following:
In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.
Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.
There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!
Check out this Federal Bar Association interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges. She explains on how she was drawn to a career in immigration law. Earlier this year, Judge Tsankov testified before Congress about the immigration court system backlog, necessary reforms, and related topics.
Here is an ABA panel discussion led by Tsankov on judicial independence.
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Judge Mimi Tsankov is “living proof” that there are leaders currently at EOIR with good ideas and a dynamic vision who could lead a due process/best practices reform effort. The question is why Garland and his lieutenants haven’t paid attention to them!
The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Judge Amiena Khan, Past President, National Association of Immigration Judges (NAIJ)Hon. A. Ashley Tabaddor Past President, National Association of Immigration Judges (“NAIJ”)
From NAIJ President Judge Mimi Tsankov:
‘Finally, Some Justice for Immigration Judges Two-Year Union Busting Battle Ends as DOJ Reverses Course and Agrees to Recognize NAIJ’
Dear Friends of NAIJ,
We’re thrilled to announce that NAIJ has reached a settlement with EOIR: https://www.naij-usa.org/images/uploads/newsroom/NAIJ_Press_Release_on_ULP_Settlement.pdf. Thank you for standing by us over the past few years, especially, as we’ve stood up against the decertification effort. The unfair labor practice matters are now settled. What’s left for another day — resolution of the pending motion to reconsider awaiting a decision at the FLRA board.
Today, we celebrate this achievement, thank all those that have stood by us, and look forward to working with the Agency to improve working conditions at the Immigration Courts.
DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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Alexandra Villarreal Immigration Reporter The GuardianJoanna Walters Journalist The Guardian PHOTO: Twitter
Also, great coverage by Alexandra Villarreal and Joanna Walters from The Guardian:
Victory for US immigration judges as Biden administration recognizes union
Settlement comes after judges accused president of ‘doubling down’ on Trump’s position
In a stunning victory, US immigration judges have settled a tense dispute with Joe Biden’s administration over their effort to restore union rights taken away from them under Donald Trump.
Biden’s Department of Justice agreed on Tuesday to recognize the union as the exclusive representative for the nation’s immigration judges and follow the terms of their collective bargaining agreement, at least for the time being.
Days before reaching the settlement, the head of the federal immigration judges’ union had accused the Biden administration of “doubling down” on its predecessor’s efforts to freeze out their association even as they struggle with a backlog of almost 1.5m court cases and staff shortages, which exacerbate due process concerns in their courts.
Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), had declared herself “mystified” that Biden’s Department of Justice would not negotiate with her members despite the US president vocally and frequently touting his support for workers’ representation.
“This administration has really doubled down on maintaining the [Trump] position that we are not a valid union,” Tsankov said before the settlement.
Tsankov was appointed as an immigration judge in 2006 and is based in New York, where she also teaches at Fordham University School of Law. She spoke to the Guardian only in her union role.
After what she described as “decades” of relatively smooth relations between the NAIJ and the Department of Justice, Donald Trump capped four years of rightwing immigration policy by successfully petitioning to strip hundreds of immigration judges of their right to unionize.
The hostile move was decided by the Federal Labor Relations Authority (FLRA), an independent administrative federal agency that controls labor relations between the federal government and its employees, on 2 November 2020, the day before the presidential election.
Despite a Democratic victory and Joe Biden taking the White House pledging to undo damage done by Trump, the union remained shut out and silenced for more than a year, without a date set to hear its case attempting to restore its official status.
“I cannot understand it … Working together, as the president has stated, working with federal employees, working with unions, achieves better results,” said Tsankov.
Congrats to Judge Tsankov and former NAIJ Presidents Judge Amiena Khan, Judge Ashley Tabaddor, and all of the others who courageously and steadfastly fought against this scurrilous retaliation by Billy Barr directed against those with the guts and integrity to “speak truth to power” about the due process disaster in our Immigration Courts!
Yes, it’s a great victory for the NAIJ and “good government.” But, I’m with Judge Tsankov here: Why on earth did it take so much time and wasted effort for the Garland DOJ to finally “do the right thing?”
This should have been “day one stuff” for Garland — a true “no brainer.” The real “stunner” here is that it took so long!
The NAIJ was and remains “the only game in town” when it comes to expert professional judicial training @ EOIR! The rest of EOIR’s professionalism and training program could be characterized as a shambles — that is, if it actually existed, which it effectively doesn’t.
Compare EOIR “management’s” pathetic attempts at training with what the “real pros” at NAIJ and the VIISTA Program at Villanova (training for non-attorney reps) under Professor Michele Pistone have developed over the past year. There is no comparison — NAIJ and VIISTA win, hands down!
Yet, rather than harnessing this available energy, talent, expertise, and creativity, “Team Garland” has dawdled away the time, making few material inroads into the toxic culture and broken pieces of our Immigration Courts. Ask almost any practitioner how much their life and the lives of their clients in Immigration Court have “improved” under Garland! You’ll get an “earful” — as I do on occasion.
A new group of progressive practical expert leaders at EOIR should have made NAIJ, representatives of the private bar and NGOs, and representatives of ICE OPLA part of an “expert advisory team” working cooperatively to reform EOIR, institute merit-based hiring practices, and reduce the backlog without more wasteful gimmicks and in full compliance with due process.
Instead, most of the first year of Garland’s DOJ tenure has been wasted fighting battles that never should have been fought, irrationally alienating would-be allies who could have provided creative solutions to endemic problems, and engaging in yet more “Aimless Docket Reshuffling” even while continuing to build unnecessary backlog. The actual state of due process at EOIR has remained deplorable, morale at record lows, and the frustration and anger of attorneys subjected to Garland’s ongoing mess growing.
Even the “lowest of low-hanging fruit” — speedy approvals of applications for recognition and accreditation of non-attorney representatives involving graduates of VIISTA and other top NGO programs have been inexplicably allowed to languish. A process that should easily be completed in 30-60 days in most cases delayed for months, perhaps years, under unrealistically low staffing and “low priority” assigned by habitually negligent and unresponsive to public needs “EOIR Management.” This, at a time when there is a dire crisis in representation that VIISTA and other “top drawer NGOs” are fighting and innovating to solve.
(Remember, of course, that former EOIR Director James McHenry improperly “took over” the R&A program, which has become less, rather than more, functional and timely as a result. That’s a good measure of how inane EOIR “management” became under Trump. But, although McHenry is gone, it’s not that there has been drastic improvement under Garland. The lack at EOIR HQ of those who truly understand the Immigration Court process and could solve problems and “make the trains run on time,” without stomping on anyone’s rights, is simply mind-boggling!)
But, however bad EOIR is and remains, the “real buck stops with Garland” who has miserably failed to address in a timely, professional, systemic, rational manner the ongoing mess in his “EOIR Star Chambers!”
Belated re-recognition of NAIJ, while welcome, won’t solve this problem at Garland’s EOIR! — “Justice” Star Chamber Style, Public Realm — or this:BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
The public deserves better — much better!
FULL DISCLOSURE: I am a proud retired member of the NAIJ.
An End to a Highly Controversial Quota System Imposed on Immigration Judges
This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”
WASHINGTON –A deeply flawed and inefficient U.S. Department of Justice program that evaluated Immigration Judges primarily on the number of cases they heard, has been “suspended.” The DOJ will no longer evaluate judges on the number of cases they decide Chief Judge Tracy Short wrote in an email sent to the nation’s roughly 500 Immigration Judges this week.
Over the past three plus years, Immigration Judges have looked over their shoulders, worried about being disciplined, just for doing their jobs — providing due process.
“This week’s actions by the Department of Justice under Executive Office for Immigration Review Director David Neal are a step in the right direction toward restoring a greater measure of integrity to our nation’s Immigration Courts,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Our organization looks forward to working with management to restore a fairer process that allows judges to focus on doing their jobs properly. The performance metrics developed by the Trump administration were a violation of judicial ethics, they belong in the trash bin.”
“The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge,” the chief judge wrote in his emailed message. “These new performance measures will focus on balance and equity for the various types of docket assignments.”
In 2018, then U.S. Attorney General Jeff Session imposed a quota of 700 decisions per year on each Immigration Judge, tied to performance reviews, regardless of the complexity of the cases.
The Trump administration also attempted to silence NAIJ from speaking out on the quota system and other policies by decertifying the union. While the union-busting efforts of the previous administration were not completely successful, full collective bargaining rights have yet to be restored to NAIJ.
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.
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Hon. David L. Neal Director Executive Office For Immigration Review USDOJ PHOTO: C-SPAN
Can David Neal bring all the real parties in interest “to the table,” fashion workable, realistic judicial policies and procedures driven by due process and the realities of Immigration Court practice, keep DOJ’s political meddling at bay, and then tap “new talent” that can actually implement positive change in a judicial, non-bureaucratic manner that achieves “systemic buy-in?” Does he even want to? If so, will Team Garland empower him to succeed, or undermine him?
One thing in Director Neal’s favor: He already retired from EOIR once and presumably could do so again if pressured to elevate political agendas over due process and best practices.
On the flip side, at least one other Director in that same position chose to “go along to get along” with decisions and policies from the DOJ that actively undermined due process and substantially decreased confidence in government.
We’ll see whether the NAIJ’s “cautious optimism” about the “Neal Era @ EOIR” is justified or just another dashed dream about due process, fundamental fairness, and best practices!
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired JudgesHonorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)
In an interview with ABC News, Mr. Biden himself for the first time hinted at flexibility on the deadline, “if there are American citizens left.” That won’t be enough: This country’s moral responsibilities begin, but do not end, with U.S. citizens. On Tuesday, Sen. Ben Cardin (D-Md.) received and forwarded to Secretary of State Antony Blinken an appeal from the National Association of Women Judges on behalf of 250 Afghan women judges, trained by Americans and other Western countries, some of whom sentenced Taliban fighters to prison for murder or other crimes. These criminals have just been released by the Taliban. The judges have thus joined the ranks of the fearful. This country must make time for all of them.
NAWJ is the U.S. Chapter of the International Association of Women Judges, an organization which NAWJ founded, developed and helped grow. NAWJ joins the IAWJ in expressing our grave fears for the basic human rights of women and girls in Afghanistan as the Taliban advance and take control of large parts of the country. In particular, the women judges have disclosed that because they have followed their country’s laws, conducted trials, and administered sentences to the guilty, many of whom are members of the Taliban, they will soon be targeted for assassination. The AWJA judges have served in criminal, anti-corruption and narcotics courts, developed in conjunction with the United States over many years. Through their efforts, they have implemented rule of law and anti-corruption principles which are central to the mission statements of NAWJ and IAWJ.
At a virtual meeting of the AWJA last month, at which a number of NAWJ members were present, the Afghan judges spoke about the dangerous and difficult conditions in which they live and work. Some judges have lost their lives in terrorist attacks and several of the judges present had received death threats. Some have already been forced to flee their posts in the provinces with their families because it was too dangerous to remain. Their fears are not theoretical. In January, two women judges traveling to their jobs at the Supreme Court of Afghanistan, were murdered in the street. Now, the prisons housing convicted terrorists have been opened, and sentenced prisoners are contacting their judges threatening reprisals and revenge.
As a chapter of the IAWJ, an organization comprised of over 6500 women judges from more than 100 countries and territories worldwide, NAWJ wants to draw particular attention to the situation of Afghan women judges, given the special role they have played in upholding the rule of law and human rights for all, and the particular dangers they face as a result. We honor their commitment and their courage. Today, some 250 women serve as judges there.
Today, it is reported that the Afghan government has collapsed. The President of Afghanistan has fled the country. The United States Department of State is currently prioritizing visas for employees of the United States, including interpreters, as the United States reaches its date for final withdrawal from Afghanistan. NAWJ urges the Department of State to include the Afghan women judges and their families, who are in such a desperate and precarious position, in facilitating travel and processing visas in the same manner that special measures are being extended to interpreters, journalists and other personnel who provided essential service to the foreign military forces in Afghanistan. NAWJ urges our government to consider the fate of the women judges. By serving as judges and helping develop the Afghan judicial branch, women judges have helped establish the rule of law in their country, an essential pillar of a democratic state. Allowing them to be at the mercy of the Taliban and insurgent groups, given what they have sacrificed and contributed working side by side with the United States would be tragic indeed.
Hon. Karen Donohue
President, NAWJ
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Thanks to my friends and long-time colleagues Judge Churchill and Judge Tsankov for standing up and speaking out. I understand from them that Senior DC Court of Appeals Judge Vanessa Ruiz (also a past President of the NAWJ) was also instrumental in this effort.
Honorable Vanessa Ruiz Senior Judge, DC Court of Appeals PHOTO: Wikipedia
Also, many thanks to Senator Ben Cardin (D-MD) for sending this to Secretary of State Anthony Blinken who hasn’t exactly covered himself in glory or shown much moral or intellectual courage in standing up for the rights and lives of refugees and energizing the bureaucracy to save lives.
Compare this with the conspicuous lack of moral, intellectual, and legal leadership and effective action from the Biden USDOJ on refugee and asylum issues.
Sadly, as many of us tried, in vain, to tell the incoming Biden Administration, failure to make immediate, bold, progressive, humanitarian, due process reforms at EOIR and to take a strong, courageous stand against the continuing misuse of bogus legal rationales to suspend refugee and asylum processing (and ignore our legal and moral obligations to refugees and other migrants) at the border will likely cripple the US response to arising human rights catastrophes and cost more innocent human lives.
Human rights and immigrant justice are not “back burner” issues! Nor are they “rocket science!” Delay costs lives and undermines democracy and our international leadership.
🇺🇸⚖️🗽Due Process Forever! Lack of expertise and moral courage has consequences!
Honorable Mimi Tsankov U.S. Immigration Judge Chair, Diversity, Equity, and Inclusion Committee Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee National Association of Immigration Judges (“NAIJ”)
Special Rapporteur on the Independence of Judges and Lawyers United Nations Office of the High Commissioner for Human Rights Palais des Nations
1211 Geneva 10
Switzerland
Dear Honorable García-Sayán,
Thank you for the opportunity to respond to the Questionnaire on Gender Equality in the Judiciary.
I am writing in my capacity as Chair of the Diversity, Equity, and Inclusion Committee of the National Association of Immigration Judges (NAIJ). I am currently seated at the New York Federal Plaza Immigration Court. Hon. Brea Burgie and I co-chair the NAIJ Gender Diversity, Equity, and Inclusion Subcommittee.
Organizational Background
By way of introduction, NAIJ is a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the United States Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.
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The focus of the NAIJ Diversity, Equity, and Inclusion Committee is to identify underrepresented groups of association members and remove or reduce unconscious biases with respect to such underrepresented groups. We facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for our judges.
Need for Judicial Independence
Our courts are in need of reform due to unprecedented challenges facing the Immigration Courts and Immigration Judges. This is particularly important, because achieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs.
The Immigration Court suffers from an inherent structural defect as it resides in a law enforcement, Executive branch agency – the U.S. Department of Justice (DOJ). The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system. Immigration Judges make life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 538 Immigration Judges in the United States are responsible for adjudicating almost 1,300,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. Many of the individuals brought into proceedings do not have attorneys to represent them despite the fact that the DHS is always represented by attorneys because they have no right to appointed counsel. In contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.
The problems compromising the integrity and proper administration of a court underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger agency with competing needs; and eliminating top-heavy agency bureaucracy.
In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most Immigration Judges and attorneys agree the long-term solution to the problem is to restructure the Immigration Court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and
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the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded. To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal would remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions of an adjudicative nature that are currently being performed by the judges and appellate Board members in the Executive Office for Immigration Review.
Questionnaire Response
As of May 19, 2021, there are 538 Immigration Judges (including supervisory Immigration Judges). Of those 313 (or 58.2%) are male and 225 (or 41.8%) are female. Of the 40 Immigration Judges who serve in supervisory/leadership roles, 17 (or 43%) are female. There are 23 Appellate Immigration Judges. In line with international trends where there is more parity for judges overall, but less for high-ranking judicial officers, seven of the Appellate Immigration Judges (or 30%) are female. Currently, EOIR has a female acting agency Director, but the agency has never had a permanent female head. Therefore, while EOIR is approaching gender equality for Immigation Judges overall, there is still a deficit in female leadership at the highest levels.
During the period 2008 – 2013, the agency identified as a clearly articulated strategic objective the hiring of candidates reflecting gender diversity. We are not aware of an updated strategy for addressing this objective. It is our view that when an agency is helmed by largely homogeneous leaders, there is a lack of varied perspectives which inhibits innovation and insights, workers’ morale suffers, the organization becomes less able to attract and retain top talent, fewer diverse career officials are promoted to management positions, and the problem becomes self-perpetuating. This condition also provides fertile ground for implicit bias to take hold and flourish, infiltrating future recruitment, as well as implicating the decisions we render in the individual cases which come before us.
The Biden administration has made diversifying the federal workforce, including at DOJ, a top priority. We are hopeful that more work will be done in the months ahead to support greater gender parity in judicial roles throughout the agency and the Immigration Court. More flexible workplace options are needed, including expanded telework and flexible working hours, which have proven to be workable and effective during the pandemic. As numerous studies have shown, women bear an overwhelming majority of caretaking responsibilities: for children, elderly parents, and family members who need additional care. Ensuring continuation of the flexible policies the Department of Justice adopted during the pandemic would ensure that more women could take roles as Immigration Judges, or stay in that role long-term, and keep a healthy work-life balance.
In regard to promoting female leadership at the highest levels of EOIR, the agency needs to examine the work culture that is rigid rather than flexible in addressing the unexpected needs of employees, and expects individuals to work long hours and be available to work evenings and weekends. This culture excludes many women who may otherwise bring valuable contributions to top-level agency positions.
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We appreciate your time, and attention to this issue. Sincerely,
Mimi Tsankov
Hon. Mimi Tsankov
Chair, Diversity, Equity, and Inclusion Committee
Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee
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FULL DISCLOSURE: I am a retired member of the NAIJ.
Many thanks to my friend Judge Mimi Tsankov (who also serves with me on the ABA’s National Conference on the Administrative Law Judiciary) for bringing this to my attention.
As Judge Tsankov points out, there has been some progress toward “gender equity” in terms of overall profile. However, in my view, this has been more than offset by 1) the “single sourcing” of judicial appointments to basically discourage and exclude progressive experts, advocates from the private sector, and those with backgrounds in advancing human rights and immigrants’ rights; and 2) constant political interference from the DOJ (under both parties) to promote their political agendas, usually anti-due-process, anti-immigrant, anti-asylum-seeker, and pro-enforcement, with definite overriding racialand nationalist overtones.
Indeed, the sad situation of the NAIJ itself — bogusly “decertified” by “Billy the Bigot” Barr as “punishment” for exercising First Amendment rights, exposing waste and bias, and “daring to speaktruth to power” speaks for itself. To date, despite the Biden Administration’s claim to be supportive of the rights of Government employees, Garland has allowed the NAIJ (not to mention asylum seekers and other migrants) to continue to “twist in the wind.”
It’s also worth noting that the NAIJ is the only entity providing meaningful due process and anti-bias training to Immigration Judges. Indeed, it is the only entity providing any type of useful professional training and continuing judicial education at EOIR!
The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.
The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.
The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.
EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.
Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.
The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.
Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.
The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.
For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.
Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.
Eliminating docket-management tools could worsen the backlog.
Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.
The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.
Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.
And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.
Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.
As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!
Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:
Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!
The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.
Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”
While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!
It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!
Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Tal Kopan Washington Reporter, SF ChronicleHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)
Justice Department cancels diversity training, including for immigration judges
WASHINGTON — The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.
The memo, dated Oct. 8, is in response to an executive order issued by President Trump last month that labeled racial bias training as “offensive and anti-American race and sex stereotyping and scapegoating.” It was issued by Lee Lofthus, the assistant attorney general for administration.
“To ensure compliance with requirements specific to Diversity and Inclusion (D&I) training for employees, DOJ Components are instructed to suspend all D&I related training, programs, activities, and events that employees are required or permitted to attend while on Government-paid time,” Lofthus wrote.
Any new diversity training must be approved by the federal Office of Personnel Management, Lofthus said. He offered no timeline for resuming training.
The suspension applies to all divisions of the Justice Department, but could be of particular importance to the immigration courts.
Unlike the independent federal judiciary, immigration judges who hear the cases of asylum seekers and others trying to stay in the U.S. are employees of the Justice Department, hired by the attorney general.
Those cases often include some of the most sensitive stories of trauma from around the world, including many from women who say they have been raped, trafficked or abused in countries that frequently do not punish men who commit such acts. Asylum seekers also include people who say they have been persecuted because of their religious beliefs and LGBTQ individuals from countries where such identities are criminalized.
The Justice Department did not immediately respond to a request for comment.
Rep. Zoe Lofgren, D-San Jose, who chairs the House Judiciary subcommittee on immigration, said the Justice Department, like other workplaces, “should always aim for more diversity, not less.”
“The suspension of this training will also apply to our nation‘s immigration courts and could lead to less inclusive and fair-minded judges,” Lofgren said in a statement to The Chronicle. “This is yet another reason why the immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.”
The union that represents immigration judges noted that they interact with a diverse group of people in court, which it said makes such training important.
“The National Association of Immigration Judges values diversity and inclusion in the workplace as it ensures that the Immigration Judges can meet the needs of the diverse group of stakeholders with whom we interface.” Mimi Tsankov, the chair of the group’s committee on gender equity and a judge in New York, said in a statement. “Immigration Court workplace training on diversity and inclusion reflects a commitment to its importance and ensures a judicial bench ready to respond to the needs that our cases demand.”
President Trump’s attorneys general have paid particular attention to the immigration courts as part of their efforts to restrict immigration to the United States, by implementing policies that have reduced judges’ discretion and made it harder for immigrants to claim asylum.
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Those with access should go to the above link for the full article. It also gives Tal a boost from the “hits.”
Glaring, intentional lack of diversity on the bench along with racial, gender, religious, and ethnic insensitivity have become an endemic problem at EOIR. But, given a regime and a DOJ that pride themselves on racism, misogyny, xenophobia, along with disdain for professionalism, expertise, ethics, humanity, and the Constitution, that’s not surprising.
Representative Lofgren and the NAIJ’s Judge Tsankov are absolutely correct. It’s time to put an end to the disgraceful abomination at EOIR and create a real, independent court system dedicated to due process, fundamental fairness, and promoting human dignity!
Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
