"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Hipppity, hippity, hop! Deny, deny, deny! For any reason, in any season, or for no reason at all! Hippity, hippity, hop!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
Fwd: CA2 Vacates Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)
“Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we conclude that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. As such, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”
First, many congrats to NDPA super lawyer John Giammatteo! Obviously (to everyone but Garland), experts like John belong on the Immigration Bench, not just in front of it!
Something is horribly wrong with a system that designates fabrications and denials of due process as “precedents” to guide other judges! Something is also disturbingly wrong with an Attorney General, a former Article III Federal Appeals Judge no less, who has failed to bring in real expert progressive judges to run EOIR, redo defective precedents as proper legal guidance, eradicate the disgraceful anti-asylum bias, and enforce due process, fundamental fairness, and decisional excellence in America’s most important “retail level” court system!
There currently are opportunities for better judges to get into the system, start eradicating bad judging like this, and replacing it with expert, due process focused, efficient, “real judging” by better judges. Get those applications in!
The “message” of Matter of Y-I-M- is clear: make it up, ignore it, cut it off, hustle off to lunch — whatever it takes to “get to no” — we’ll have your back!
“The decision is scorching,” says Dan Kowalski. And, well it should be! This is a disgusting,institutionalized travesty of justice 🤮, in life or death cases ☠️, going on right under AG Merrick Garland’s nose! It’s undermining American democracy! And, it’s totally preventable!
Remarkably, the BIA selected this pathetically bad adjudication — one that raises questions as to whether anyone at EOIR even read the record — combined with a horrendous denial of due process, and an IJ who obviously felt “empowered” to elevate time over fairness and substance — as a precedent! That means it was supposed to be a “model” for IJs — essentially a message that you should go ahead and deny asylum for any reason — even if largely fabricated — and the BIA will give you a “pass.” This actually raises some serious ethical problems with the whole EOIR mess and Garland’s indolent stewardship over this critical part of our justice system!
The IJ actually said this: “So, don’t get frustrated if I shutdown your arguments. It’s just that —we’re now at 12:00, and we’re nowhere . . . near done in the case.”
Amazingly, this IJ “touted” that cutting off relevant testimony, actually “helped” the respondent by giving him more possible reasons to appeal! Does this sound like a system that encourages “efficiency” and “excellence?”
No wonder they have backlogs coming out the wazoo! Yet, rather than slamming this IJ and using it as a precedent of how NOT to handle an asylum case, the BIA basically “greenlighted” an egregiously defective performance and made it a “model” for other judges! Outrageous!
It’s an example of why this system needs progressive, due process oriented leadership and radical reforms! Now!
A competent IJ could have granted this corroborated case and still have made their “noon lunch date!” Recognizing and institutionalizing consistent grants of relief is what “moves” the Immigration Court system without violating anyone’s rights and without tying up the Article III Courts!
Instead, because of the unchecked “culture of denial” and the incompetence allowed to flourish at EOIR, after four years this case is still bouncing around the system. That’s a key reason why EOIR is dysfunctional and their backlogs are out of control!
Correct, positive precedents establishing and enforcing best practices are essential to due process and fundamental fairness — once, but no longer, EOIR’s “vision.”
One of the “uninitiated” might logically expect that having exposed and eliminated this disingenuous “any reason to deny asylum” precedent, advocates for due process and fundamental fairness have “won this battle.” Not so in the “parallel universe” of Garland’s EOIR!
As pointed out by Hon. “Sir Jeffrey” Chase of the Round Table:
If they follow past practice, the BIA will continue to apply this decision as a model for IJs in every circuit but the 2d.
Come on, man!
The author of the Second Circuit decision, U.S. District Judge Gary Brown has an interesting background, according to “Sir Jeffrey:”
Also, the judge who wrote the decision for the panel, Gary Brown, is a Trump appointee to the Eastern District of NY sitting by designation on this panel. When John’s argument was being mooted, we actually discovered that Judge Brown is also a renowned magician, who invented an effect called the Viking Spirit Trumpet.
Actually, Judge Brown was nominated for the bench by both President Obama and President Trump! Wonder if he has any magic spells up his sleeve that would make EOIR disappear and reappear as a real, due-process-focused court!
Magic Hat & Wand Could U.S. District Judge Gary Brown, also a famous magician, conjure up a spell that would make due process “reappear” at EOIR? PHOTO: Public Realm
Amazing how busy Article III Judges can take the time to read and understand records in asylum cases, but the BIA can’t! This system is broken!
Meaningful reform starts with a new, better qualified, expert BIA focused solely on due process, fundamental fairness, and decisional excellence. It’s very straightforward! Why doesn’t Garland “get it?” How many more will be wrongfully denied while our disconnected AG floats around in his surreal, yet deadly, “intellectual never never land?”
Lost in an intellectual fog, and far removed from the “retail level of justice,” AG Merrick Garland can’t be bothered with the injustices heaped on asylum seekers and their dedicated representatives in his dysfunctional, deny for any reason, Immigration Courts! PHOTO: Wikipedia Commons
Every time I read this decision I get more and more outraged about the continuing horrors of EOIR! Attorneys could face sanctions for making material misrepresentations in briefs. Yet, nothing happens to EOIR Judges who “make it up as they go along” to deny asylum!
I was told by some withknowledge of the EOIR disaster that, at least until recently, those at higher levels of the Administration who (curiously) are “pulling the strings” at EOIR were unaware that Immigration Judges are not automatically “packaged” with Judicial Law Clerks! Duh! Anybody who has actually worked at the “line level” of EOIR as well as a whole bunch of widely available reports and studies could have told them that!
So, according to my sources, in at least some locations “flooded” with new IJs, the already poor IJ to JLC ratio has gotten much, much worse!
Just another piece of “low hanging fruit” that Garland has failed to “harvest.” I’ve also been told that problems with grade levels discourage individuals from making a career out of working in the law clerk program.
All of this makes it critical that new Immigration Judges be experts in immigration law with “hands on” experience. So, NDPA practical scholars, get those applications for judgeships in NOW! Indolence about due process at the top creates opportunities for spreading and institutionalizing due process at the “retail level!” But, that requires great judges with the right experience. So, don’t wait! Apply today!🗽⚖️👨🏾⚖️👨🏼⚖️👩🏾⚖️🧑🏻⚖️
People all around the world look to the United States as a land of opportunity and safety. Every month, tens of thousands of people arrive at US border checkpoints and ask to be granted asylum. Over the last decade, the number of people showing up at the southern U.S. border seeking protection has increased five-fold to more than 200,000 every month. That huge increase has so overwhelmed the system that getting a final answer often takes years. There is bipartisan agreement that the asylum system is broken. How we fix the backlog, though, depends a lot on how we answer the question at the heart of today’s podcast episode: what is our obligation to asylum seekers? Are we responsible for taking these individuals in? We’ll be hearing from two previous asylum seekers about the challenges of seeking asylum in the United States, a writer who had an eye-opening experience learning how America’s asylum process differs from other countries, and two former immigration judges with differing perspectives on how we should implement asylum law in the United States. As we hear each of these perspectives, we’ll consider this question: what do we owe people who are no longer safe or able to prosper in the countries where they happen to have been born?
Podcast Guests: Razak Iyal, sought asylum in the U.S. in 2013, granted asylum in Canada in 2017 Joe Meno, Author of “Between Everything and Nothing: The Journey of Seidu Mohammed and Razak Iyal and the Quest for Asylum” Makaya Revell, CEO of Peace Promise Consulting, granted U.S. asylum in 2022 Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, former immigration judge 2006-2014 (York, Pennsylvania) Paul Wickham Schmidt, adjunct professor of law at Georgetown University, former immigration judge 2003-2016 (Arlington, Virginia) **This episode is part of Season 3 on Top of Mind: Finding Fairness. From health and immigration to prisons and pot, how can we get more peace and prosperity for all?
This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge.
EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.
EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.
Job Description:
Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.
Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations.
Qualifications:
In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:
Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)
AND
Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)
AND
Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the federal, state or local level. Relevant experience may include that gained in civil, criminal, or military cases, as well as in any case in which a formal procedure was initiated by a government administrative body.
NOTE: Qualifying experience is calculated only after bar admission.
Successful applicants will have a strong combination of experience demonstrating that they will perform at the level of competence, impartiality, and professionalism expected of an Immigration Judge. For more information about relevant experience and knowledge, please see the “How You Will Be Evaluated” section.
Additional information
This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.
Additional positions may be filled from this announcement within 90 days of certificate issuance.
Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.
One or more court location(s) in this announcement is under construction and may not be open for some time. If selected for a court that is not physically open, you will be temporarily assigned to a court currently open, as needed. If selected, once your court has opened, your duty station will be adjusted to reflect your new court location.
There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation (see the “Required Documents” section).
Salary:
$149,644 – $195,000 per year
Travel:
50% or less – You may be expected to travel for this position
Application Process:
To apply for this position, please click the below link to access and apply to the vacancy announcement via USA Job: USAJOBS – Job Announcement . Please read the announcement thoroughly. You must submit a complete application package by 11:59PM (EST) on 4/25/2023, the closing date of the annoucement.
Applicants should familiarize themselves and comply with the relevant rules of professional conduct regarding any possible conflicts of interest in connection with their applications. In particular, please notify this Office if you currently represent clients or adjudicate matters in which this Office is involved and/or you have a family member who is representing clients or adjudicating matters in which this Office is involved so that we can evaluate any potential conflict of interest or disqualification issue that may need to be addressed under those circumstances.
Application Deadline:
Tuesday, April 25, 2023
Relocation Expenses:
Not Authorized
Number of Positions:
Multiple vacancies in multiple locations
Updated April 14, 2023
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Department Policies
Equal Employment Opportunity: The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer. Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor. The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.
Reasonable Accommodations: This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.
Outreach and Recruitment for Qualified Applicants with Disabilities: The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements. Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority. Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.
Suitability and Citizenship: It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment. Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.
Veterans: There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdf for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).
USAO Residency Requirement: Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof. See 28 U.S.C. 545 for district specific information.
* * *
This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.
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Storm the gates! Show the world what REAL due process and adherence to the generous remedial purposes behind the Refugee Act of 1980 looks like! Make “Equal Justice For All” a reality, not just a “throwaway line!”
The “rule of law” is about fundamental fairness — it’sNOT about turning our justice system into a “deterrent” or fulfilling the enforcement agenda of DHS! The latter is a PARTY, just like the individuals seeking justice before these courts.Put to work your comprehensive knowledge, experience, courage, persistence, and skills in forcing a fundamentally biased and unfair system to do justice for individuals — in spite of itself.
EOIR doesn’t have to be a disaster! “Institutionalize” due process, decisional excellence, and fundamental fairness!
Apply, apply, apply! Change the world for the better! Save lives at the most important level of our justice system — the “retail level!”
The Biden administration will pause its signature effort to reform asylum processing at the border, Department of Homeland Security officials confirmed Wednesday.
The so-called asylum processing rule, which the administration launched with great fanfare in 2022, allowed asylum officers to grant and deny asylum to migrants at the southern border.
Administration officials say the pause is a temporary measure designed to ensure that the country’s immigration agencies are prepared for a potential increase in border crossings after the end of Title 42, a pandemic-era policy that allows border agents to quickly turn back migrants.
But critics say the pause signals President Biden’s latest move away from reforming the asylum process and back toward Trump-style restrictions at the southern border.
. . . .
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Read Hamed’s complete’s article at the link.
Like the term “temporary,” a “pause” is a bureaucratic “term of art” used to deflect attention from what’s really happening. “Pauses” can last indefinitely. If, after two years to work on it, and touting it as a transformational change, the Biden Administration can’t put this fairly straightforward “no brainer” change into effect, it’s not obvious what the “right time” would be!
Granting much more asylum at the AO level nearer to the time of initial encounter is one way of gaining “leverage” and avoiding the EOIR backlog — without stomping on anyone’s rights!The latter is key!
I think most experts would say that it should have been much easier to implement this positive change than some of the new, tone-deaf, bone-headed “proposed restrictions” on asylum, re-instituting dehumanizing and problematic “family detention,” and removing 30,000 non-Mexicans per month to potential danger, exploitation, and death in Mexico. These moves are guaranteed to provoke strong opposition as well as generating some rather unhappy publicity whenthe situation in Mexico gets out of control, as it inevitably will.🏴☠️
Remember folks, the Biden Administration claimed a year ago that it wanted to terminate Title 42 at the border. After an additional year, they still don’t have a plan for following the law! No wonder some critics perceived that the Biden Administration was actually relieved when a right-wing Federal Judge abused his authority to block the ending of Title 42.
Most experts doubt that the Biden Administration has the “right team” (pictured above) in place to restore fair, competent, due-process-compliant asylum adjudication at the border or anywhere else! PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
Instead of preparing, planning, and “knocking some heads” within the bureaucracy, the Administration has squandered the last year thinking up new anti-asylum gimmicks, rather than making the long-overdue changes at EOIR, the Asylum Office, and the Refugee Program necessary to admit refugees legally, robustly, and timely — in other words to restore the rule of law as they had promised.
Oh, for some competence, backbone, and leadership in the Biden Administration’s immigration policy bureaucracy! Never has America needed the Ambassadorial Level position of Refugee Coordinator more than now! Unfortunately, that important role established by the Refugee Act of 1980 was “swallowed and digested” by a hostile bureaucracy years ago. Alex Aleinikoff, where are you when your country needs you?
Hey listen! Quinn Dombrowski from Berkeley, USA Creative Commons Attribution-Share Alike 2.0
EOIR to Host Listening Session Seeking Input on Enhancing Pro Bono Representation
SUMMARY: The Executive Office for Immigration Review (EOIR) will host six listening sessions to facilitate conversations with law school clinical communities nationwide about creating best practices for practical and clinical representation and empowering immigration judges and staff to leverage the pro bono resources law schools provide. EOIR’s objective is to build the capacity of representation in immigration court proceedings by cultivating and maintaining interest in pro bono advocacy.
As the “Access EOIR” initiative continues, EOIR seeks to engage law school clinical communities about their needs. During the meeting, EOIR would like to hear from participants about:
Any communities or areas of focus for law school clinics, including whether they represent noncitizens in removal proceedings, and whether they focus on specific case types or dockets.
The average number of removal cases handled per year.
The types of interactions with immigration courts, especially for those not
providing representation in removal proceedings.
The intake processes across law school clinics.
Suggestions on how EOIR can better support law school clinics.
EOIR encourages professors and leaders from law schools to attend the meeting for their clinic’s region but welcomes all such individuals to attend any session that works for their schedules. Professors and leaders of law school clinics who are unable to attend any of the sessions, including those who were unaware of the sessions in advance, may request a session by sending the name(s) of the attendee(s) and the law school clinic, the date and time requested, and a valid email address to: engagewitheoir@usdoj.gov.
DATES:
April 14 at noon (CT) –
April 17 at 1:00pm (ET) – April 20 at 10:30am (ET) – April 21 at noon (PT) – April 27 at 1:00pm (ET) – April 28 at noon (PT) –
AR, IA, IL, IN, KY, MI, MN, MO, NE, ND, OH, SD, TN, WI
DC, DE, MD, NC, NJ, PA, SC, VA, WV CT, MA, ME, NY, PR, RI, VT
CA
FL, GA, LA, TX
From my vantage point, the current EOIR system is not particularly “pro bono friendly!” So, this is a chance for those of you who are actually providing, or trying to provide pro bono assistance to weigh in with your ideas on how the system could be better!
Trump Federal Judges Tilt Against Democracy Republished under license
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.
Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.
Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.
And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.
Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.
My fury here is not because I fear that Kacsmaryk’s ruling will stand. I don’t think it will, not even with this Supreme Court. Indeed, another federal district judge — just hours after Kacsmaryk’s Good Friday ruling — issued a competing order, instructing the FDA to maintain the existing rules making mifepristone available. Even Kacsmaryk put his ruling on hold for a week; the Justice Department has already filed a notice of appeal; and the dispute is hurtling its way to the Supreme Court. (Nice work getting yourselves out of the business of deciding abortion cases, your honors.)
No, my beef is with ideologues in robes. That Kacsmaryk fits the description is no surprise. Before being nominated to the federal bench by President Donald Trump in 2017, Kacsmaryk served as deputy general counsel at the conservative First Liberty Institute. He argued against same-sex marriage, civil rights protections for gay and transgender individuals, the contraceptive mandate and, of course, Roe v. Wade.
. . . .
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“Ideologues in robes!” That’s also a good description of many of the judges appointed by Sessions and Barr to the U.S. Immigration Courts. While there have been a few improvements in the appointment process, the Biden Administration has not effectively addressed the serious institutional dysfunction and anti-immigrant bias at EOIR.
And, let’s remember, EOIR is a “court system” affecting millions of lives and futures that is 100% controlled by the Administration. If this Administration is unwilling or unable to embrace and advance progressive values in a court system they own, how are they going to address other issues of justice, gender, and racial,equity in America?
Indeed, this tone-deaf Administration is now at war with more than 33,000 progressive groups and experts about their scofflaw “death to asylum seekers” regulations. The Administration’s immoral, impractical, and illegal proposal to send up to 30,000 legal asylum seekers to Mexico without due process or fair consideration of their claims for legal protection basically replicates, and in some ways goes even beyond, Kacsmaryk‘s endorsement of the discredited and proven to be deadly “Remain in Mexico” program instituted by Trump and Miller. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=26734&action=edit.
Here two articles from Substack that sum up the GOP’s all-out assault on individual rights, freedom, and democracy — basically an assault on YOU and those YOU value as fellow human beings:
From Jay Kuo:
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: Facebook
Remember folks, this began as an attack on immigrants and their rights. But, as those of us in the NDPA recognized and predicted, it didn’t end there!
It’s worthy of note that unqualified right-wing extremist hack Judge Matthew Kacsmaryk “honed” his misogynist attack on YOUR individual rights with a scurrilous attack on the rights and humanity of legal asylum seekers.
Dems failure to present a powerful, unified, well-organizeddefense of the human and legal rights of all people has helped fuel the dehumanization and“Dred Scottification” of almost all members of our society except a certain vocal and well-organized minority of far right White Nationalist extremists, their supporters, and their “fellow travelers!”
The answer:
Register to vote;
Speak out;
Vote every Republican out of office at every level of government!
As has been shown, YOU can’t rely on the Biden Administration and so-called “centrist Dems” to do this for YOU! They have shown a disturbing willingness to “sell out” individual groups — like asylum seekers, migrants, social justice advocates, and transgender youth — when they believe (even if wrongly) that it is politically expedient to do so!
YOU are going to have to use the democratic tools still available to control your own future and the destiny of generations to follow! YOU are getting a very graphic illustration of the “alternate future.” And, notably, it has no place for YOU and YOUR values!
🇺🇸 Due Process Forever! It’s more than a slogan — it’s a movement!
On Friday we had a challenging issue with our Asylum case in immigration court.
The case was heavily documented and our NYC team did such an amazing job with the package that DHS was already willing to stipulate to a Withholding of Removal (which actually requires proving a higher probability of persecution than asylum, but is a much more restrictive form of relief). Client is a bona fide Falun Gong practitioner and has publicly opposed the Chinese government’s vicious and ruthless persecution of FLG followers in China, so it was a victory on its merits just from looking at the filing and before taking testimony.
However, the reason the government would not stipulate to Asylum is because there was a one year issue in the case. Normally, clients are required to apply for asylum within one year of their last entry into the United States, unless they can prove they qualify for one of the exceptions in the statute.
This was an unfortunate case where USCIS lost the filing and by the time client found out about this, she was so mentally distraught with the persecution of her family back home that she simply could not muster the necessary focus to work on the application. Her symptoms persisted for two years until after her family was released and she finally was able to file.
We showed several receipts, USPS labels, brought a witness who was aware of the challenges client was facing at the time, and took detailed testimony where client explained the mental anguish she was suffering at the time and how this affected her ability to focus.
Denver IJ Grants CAT, Withholding Relief (El Salvador, PSG)
Prof. Elizabeth Jordan writes: “DU clinic students Anni Winan and Sharon Malhotra got a win in Judge Caley’s courtroom a few weeks ago on behalf of a Salvadoran who fears return to El Salvador under the State of Emergency declared by President Bukele. Notably, Caley found “Salvadoran men with tattoos erroneously perceived to be gang members” cognizable as a PSG, departing from Matter of EAG, and found that the conditions in Salvadoran prisons under the SOE amount to torture. [ICE did NOT appeal.] We would highly recommend Dr. McNamara as an expert as well.”
[Hats way off to Prof. Jordan (Director, Immigration Law & Policy Clinic, University of Denver Sturm College of Law) and her students!]
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Congrats to everyone involved! Fairness, scholarship, timeliness, respect, and teamwork succeeds!
Common threads:
Great representation of the respondent;
Great preparation;
A well-prepared, thoughtful ICE Assistant Chief Counsel committed to working for a fair, correct, result;
An Immigration Judge who inspired the parties to excellence, paid attention to the law and the issues, listened carefully, and allowed both counsel to do their jobs;
An Immigration Judge who encouraged the parties to work cooperatively, narrow the issues, and focus on the key dispositive issue;
Great teamwork and professionalism produced a great result, with efficiency, and without gimmicks or corner cutting.
What’s needed:
Precedents establishing, enforcing, and reinforcing due process and best practices;
Working with the private bar and NGOs to establish universal representation;
Prioritizing represented grantable cases on the docket;
Dynamic judicial leadership focused on institutionalizing due process, fundamental fairness, and correct, high-quality decisions;
Highest quality judicial training and continuing judicial education. (It exists out here in the “real world” with inspiring, effective, creative, problem-solving“practical scholar/teachers.” But, according to EOIR sources, currently available only through the NAIJ!)
Due process, fundamental fairness, best practices, and maximum efficiency, consistent with due process, can be achieved at EOIR! It just takes expertise, will, a plan, and the right personnel to make it happen! Leadership makes a difference!
It’s also remarkable, if not surprising, that 33,000 of us, many representing larger groups, filed written comments OPPOSING Biden’s tone-deaf, anti-due-process, anti-rule-of-law, racially-targeted, designed-to-fail, Stephen-Miller-inspired “death to asylum (and asylum seekers)” proposed regulations!https://default.salsalabs.org/Ta42828aa-7c89-4fca-a530-ab64d55d9cdf/e9c83407-de3b-4bcf-a318-704cbcd599a2. As someone who spent considerable time analyzing public comments on regulations during my career, that’s an astounding show of unified opposition.
Of course, that doesn’t mean that Biden, Harris, Garland, Mayorkas, or anyone else in the Administration will listen. But, they should!
Unfortunately, the ridiculously short 30-day comment period and that this major reversal of the positions and values that Biden and Harris campaigned upon, without meaningful input and discussion with experts who actually understand the borders and have been present there, indicates that the the comments are likely to be largely ignored. That’s going to lead to big time litigation — from both progressives and GOP nativist/restrictionists.
But, discouragingly, the Biden Administration has shown itself to be willing to tie up time and resources insanely (and not necessarily successfully) doing battle with its own would-be supporters rather than fighting the right! Just who they think is going to be the “winner” here — other than, perhaps, Donald Trump and Jim Crow— is beyond me!
James “Jim” Crow Symbol of American Racism. Biden’s ill-advised and tone-deaf nativist asylum policies appear designed to appease this guy rather than to please those who actually voted for him and other Democratic candidates!
Instead of “running away” in the face of the GOP’s scurrilous “Anti-Woke Campaign:” targeting immigrants, the LGBTQ+ community, African Americans, Latinos, Asian Americans, Jews, Muslims, women’s reproductive rights, teachers, free speech, libraries, public education, medical science, the environment, social justice, the Federal Government, voting rights, unions, the working poor, and just about all “mainstream American” individual freedoms, the Biden Administration and Dems in general should stand up for what’s actually great about America and against the GOP’s vile, ignorant, hateful “culture warriors” and “Jim Crow racists and misogynists. Defending the legal rights and humanity of asylum seekers and other migrants would be a good place to start a real defense of American values and democracy! That is, if someone in power were really interested in those things!
“Habib Al-Adily, a citizen of Iraq and a lawful permanent resident of the United States, was late in returning his rental car to Thrifty-Rent-a-Car (Thrifty). He was indicted under a Michigan statute criminalizing the willful failure to timely return rental property, an offense to which he pleaded guilty and for which he was ordered to pay over $10,000 in restitution to Thrifty. Two Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) concluded that these circumstances warranted Al-Adily’s deportation for having been convicted of an aggravated felony under the Immigration and Nationality Act (INA). For the reasons set forth below, we GRANT Al-Adily’s petition for review, REVERSE the BIA’s decision, and REMAND to the BIA with instructions to terminate the removal proceedings against him. … A cursory review of Exhibit A reveals that Thrifty’s actual loss was clearly less than $10,000. And DHS certainly did not meet its burden of proving by “clear and convincing” evidence, see id. (quoting 8 U.S.C. § 1229a(c)(3)(A)), that the loss exceeded that amount. … Despite admonitions by both the BIA and the Supreme Court that restitution orders must be considered with caution, especially where the restitution amount was initially determined under a lower evidentiary standard, the IJs and the BIA deferred uncritically to the state court’s determination in conflating the restitution amount with Thrifty’s actual loss. In denying Al-Adily’s motion to reconsider notwithstanding this error, the BIA abused its discretion.”
[Hats off to Frank G. Becker!]
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Although admittedly Circuit Judge Siler agreed with the BIA, I concur with Judge Gilman that this is more sloppy work on “the basics” coming out of EOIR.
EOIR has a severe, chronic “quality control/expertise/due process” problem that got much worse during the Trump years, when far too many Immigration Judges with questionable qualifications were elevated to the bench. Garland hasn’t solved this festering problem in the more than two years he has been in office.
And, it’s highly unlikely that just adding Immigration Judges — without a huge upgrade in qualifications, training, and supervision from a revamped, truly expert BIA — is going to solve these problems.
If anything, aimlessly adding more bodies to a mal-functioning system is just going to increase the chaos and the already unacceptable level of inconsistent results in life-or-death matters.
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Audrey Macklin University of Toronto Law Faculty PHOTO: U of Toronto
At almost 4,000 miles, the United States’ northern border is about twice as long as the U.S.-Mexico border — much of it wild, unmarked and dangerously cold for half the year. And yet, human smuggling and deaths at the U.S.-Canada border have not been a major phenomenon, as they have been down south. Nor has Canada poured billions of dollars into a network of walls, fences, robotic dogs and militarized border patrol. It is also true that historically the number of asylum seekers and migrants seeking entry to Canada has been relatively low.
But the ills of the U.S.-Mexico border seem bound to spread northward, now that Canada reached a deal with the Biden administration to expand a 2004 agreement to repel Canada-bound asylum seekers back to the United States (and vice versa).
As U.S. policies toward asylum seekers grew harsher from 2017 on, the number attempting to enter Canada increased. Instead of appealing to its southern neighbor to do better, Canada is coordinating with the U.S. to pass the buck on the legal obligation to protect refugees, which both countries undertook when they signed the Refugee Convention and Protocol more than 50 years ago. Their current approach foists responsibility onto poorer, less stable countries that are already doing more than their share.
Both the U.S. and Canada have pursued this under a “safe third country” rule, which enables a country to return asylum seekers to a nation they have passed through on their journey if it is considered safe and deemed to have a fair process for seeking protection. That “safe third country” then has the responsibility to determine their claims.
. . . .
This has been labeled a crisis, but it simply isn’t, especially when one considers that 85% of the world’s refugees are hosted in lower- and middle-income countries. Furthermore, Canada knows how to manage refugee inflows decently when it chooses to do so: Over 160,000 Ukrainian refugees have been welcomed during the past year.
. . . .
The Safe Third Country Agreement and related policies subvert the obligations to which Canada and the U.S. are subject under international refugee law. They undermine the existing global system of protection. But most tragically, they abandon principle and humanity, and set off a chain reaction that ends up returning refugees to persecution.
Karen Musalo is a law professor and the founding director of the Center for Gender and Refugee Studies at UC Law, San Francisco. Audrey Macklin is the director of the Centre for Criminology and Sociolegal Studies at the University of Toronto.
The obvious answer is to establish a fair, timely, generous asylum adjudication system at ports of entry and to dramatically increase the number of legal refugees who can come from countries in Latin America, particularly the Northern Triangle. If you build a functional legal refugee and asylum system refugees will use it.Why wouldn’t they?
A legitimate refugee and asylum system results in permanent admission with permission to work that leads to green cards and, eventually, citizenship for those who choose the latter. It’s quite different from ad hoc, nationality and numerically limited use of discretionary “parole” stratus. Parole status lacks transparent criteria, does not necessarily prioritize refugees and asylees as the law requires, and most seriously has no “built in” path to permanent status.
Consequently, “parolees” must either apply under a incredibly backlogged asylum system in the U.S. — thus guaranteeing delay and unnecessarily adding to the already monster backlog — or find themselves “in limbo” after two years and clearly becoming both a target and “political football” for restrictionists. And, there can be little doubt that even if the Biden parole program survives pending court challenges, it will immediately be terminated by any future GOP Administration.
Making the existing legal system work in a durable, fair, and properly generous manner to protect refugees is clearly the way to go! It would be hugely beneficial to both both the refugees and our nation! Why the Biden Administration insists on scofflaw “deterrence only” gimmicks that advance the racist/nativist agenda of the losers of the 2020 election is beyond me!
Hon. Ilyce Shugall U.S Immigration Judge (Ret) Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto, CA Adjunct Professor, VIISTA Villanova Member, Round Table of Former Immigration Judges PHOTO: VIISTA VillanovaKevin A. Gregg, Esquire Partner Kurzban Kurzban Tetzeli & Pratt Coral Gables, FL Host Immigration Review Podcast PHOTO: KKPT
It was a pleasure working with my friend Ilyce during an exciting two-day workshop at VIISTA Villanova recently, attended by some of her VIISTA students now out using their skills to promote and realize social justice!
Round Table members are literally everywhere these days, fighting, teaching, advocating, and educating for due process and fundamental fairness for all persons in America!
Honorable Joan Churchill Retired U.S. Immigration Judge Member, Round Table of Former Immigration JudgesJudge (Ret.) Steven Morley Of Counsel,Landau, Hess, Simon, Choi & Doebley Philadelphia, PA Member, Round Table of Former Immigration Judges PHOTO: Linkedin
Ex-judges: Immigration courts should be independent
Two retired immigration judges urged Congress to create an independent immigration court system, removing the courts from under the U.S. Justice Department, where they currently reside.
Panelists on a recent ABA webinar argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general.
The former judges made their call at a panel discussion March 17 — “Adjudicatory Independence: Are Immigration Judges a Warning or a Model?” — organized by the American Bar Association Judicial Division. They and other panelists argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general, who can overturn their decisions, fire them and create new immigration policies that they must follow.
Steven Morley, a retired immigration judge in Philadelphia, talked about a case he handled in 2018, called the Matter of Castro-Tum, which he considered a red flag for judicial independence.
The case involved an unaccompanied minor who illegally entered the United States, was detained by authorities, then released to relatives in the United States pending a hearing to force him to leave the county. Hearing notices were sent to the relatives’ address, but the boy did not appear. Finally, after four postponements, Morley administratively closed — or indefinitely suspended — the case, ruling that the Department of Homeland Security could not show it had a reliable address to notify the boy of his hearing.
At that point, U.S. Attorney General Jeff Sessions referred the case to himself and overturned the judge’s decision. Sessions ruled that immigration judges do not have the authority to administratively close cases as Morley did. The new policy made it harder for immigration judges across the country to indefinitely suspend cases. This caused an uproar among immigration judges and advocates.
Three years later, in 2021, Merrick Garland — a new attorney general in a new administration — overturned Sessions’ action.
Such actions undermine the independence of immigration judges, Morley said. “The flaws in the system allow this to happen, and we should always be concerned for the integrity of the court system.”
Morley said attorneys general under President Donald Trump referred immigration cases to themselves to overturn judges’ decisions 17 times in four years, a large number compared to previous administrations. “This is no way to run immigration policy, to have ping-ponging back and forth of policy, from one attorney general to another attorney general.”
Joan Churchill, a retired immigration judge in Northern Virginia, outside Washington, D.C., also emphasized the importance of maintaining due process in immigration courts, particularly hearing notices to defendants. “Adequate notice of the hearing is on everybody’s list as a requirement of due process,” she said.
Churchill noted that the U.S. Supreme Court, in a decision a few years ago, written by Justice Neil Gorsuch, found that notices in immigration court often were not constitutionally adequate. “Justice Gorsuch said any notices that did not include the time and place of the hearing — which many of them did not; they just said time and place to be determined — those were not adequate notice of the hearing and therefore the cases were defective.”
In 2010, the ABA House of Delegates adopted a policy supporting the creation of an independent Article I system of immigration courts. More than 150 organizations support this position, including the National Association of Immigration Judges and the American Immigration Lawyers Association, Churchill said.
Thanks, Joan and Steve for forwarding this report and for doing such an outstanding job of highlighting the compelling, urgent need for this long-overdue reform.
A.G. Merrick Garland’s continuing operation of the “EOIR Clown Show,” at taxpayer expense, is costly in more ways than one! “Any reason to deny” proves too much even for the hyper-conservative 5th Circuit! PHOTO: Public Domain
Dan Kowalski reports for LexisNexis Immigration Community:
“On May 18, 2022, this court granted Giscard Nkenglefac’s petition for review of the Board of Immigration Appeals’s (BIA) dismissal of petitioner’s appeal from the immigration judge’s (IJ) denial of his application for relief from removal. See Nkenglefac v. Garland, 34 F.4th 422, 430 (2022). Because the IJ’s adverse credibility determination was not supported by evidence in the record, we determined that the BIA erred in affirming it and remanded the case to the BIA. The petitioner filed a timely application for attorneys’ fees under the Equal Access to Justice Act (EAJA). We find that petitioner is entitled to attorneys’ fees under the EAJA and award $56,169.79.”
Homero Lopez, Jr. Director & Co-Founder Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA websiteEmma Morley Paralegal Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA website
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Wouldn’t it be cheaper and better for everyone if Garland finally “cleaned house” at EOIR, appointed and retained only well-qualified expert judges at both the trial and appellate level, replaced incompetent administrators, and ended the toxic — and costly — “any reason to deny culture” at EOIR?
When the DOJ is being “pasted” on wrongful decisions denying asylum by the 5th Circuit, everyone but Garland knows that “the EOIR Clown Show has got to go!”🤡
Make no mistake about it! Garland’s failure to reform EOIR into a due-process-focused expert tribunal willing to stand up for the legal rights of asylum seekers and to require “best practices” with respect to access to representation at the border and elsewhere is a major contributing factor to the Biden Administration’s deadly humanitarian disaster and abrogation of the rule of law for asylum seekers at the Southern Border. It didn’t have to be this way!
Why is this “preventable disaster” happening under a Dem Administration that ran on an (apparently false) pledge to restore due process and the rule of law for asylum seekers and other migrants? How can we stop it and prevent it from happening again in the future?
I daresay that many humanitarian experts warned the Biden Administration that without fundamental positive changes, better, courageous, expert, inspirational leadership, and long-overdue administrative reforms at DOJ, DHS, and the White House, disasters would unfold across the board. That’s exactly what has happened! It’s also infecting the entire legal system and inhibiting social justice in America.
But , unless and until social justice advocates come up with a better political approach to the disturbing lack of integrity and values in both political parties when it comes to immigration, they will continue to be vilified and attacked by the GOP and “consistently kicked to the side of the road” by Dems!
I wish I knew the answer! I don’t! But, I do know that human rights and social justice disasters will continue to unfold unless and until social justice advocates figure out how to get some “political clout” behind their intellectual power and store of (largely ignored) great ideas!
