"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.
Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
. . . .
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Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!
It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”
But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”But, that doesn’t mean that the rest of us can’t demand some accountability for participation inwhat are essentially “crimes against humanity.”
Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.
It’s also why the the Biden-Harris team that takes over at DOJ must:
immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.
American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).
The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.
⚖️🗽🧑🏽⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴☠️👎🏻!
PWS
12-21-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
“Spirit! are they yours?” Scrooge could say no more.
“They are Man’s,” said the Spirit, looking down upon them. “And they cling to me, appealing from their fathers. This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy, for on his brow I see that written which is Doom, unless the writing be erased.”
—A Christmas Carol, Stave III
The Ghost of Grifters Not Yet Past was everywhere over the weekend. In the New York Times, we read about how the Ghost had arranged for a meeting of the political Chronic Ward in the White House. In the Washington Post, we read about how the Ghost had visited his feral children, Ignorance and Want, upon the land by giving them national political leaders who couldn’t pour piss out of a boot if the instructions were on the heel, and, worse, had no desire to learn how, even in the midst of the greatest public health crisis in a century.
While the Times’ account of the Mad Hatter’s seditious tea party is the flashier story, it is the Post’s deep spelunking into the administration*’s brutal (and quite deliberate) mishandling of the pandemic that is more likely to resound in historical memory as the most criminal dereliction of duty in the history of the American presidency. By comparison, Herbert Hoover at the onset of the Great Depression and James Buchanan as the nation slid toward the Civil War were positive pikers in their disregard for the office they held and the country they were chosen to lead.
. . . .
And then there’s the Dauphin Prince, who apparently had some power and almost no respect, possibly because he was marginally less of a fck-up than everyone else was.
. . . .
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Read Charlie’s complete article at the link.
The Moron-in-Chief, the Party of Putin, and their rabidly anti-American followers and fellow travelers must have exceeded Vladimir’s wildest expectations.
And, at what a bargain price: no need for huge investments in the military, expensive weapons of mass destruction, complicated spy networks, or even major payment of bribes. Just find enough greedy, selfish, delusional, resentful, racist, dim-witted folks willing to betray our nation. Then, invest modest amounts in misinformation, flattery, fanning White Supremacy, and cyber espionage, and “puff” you’re inside the U.S. security, intelligence, and essential infrastructure system with your traitors and dupes installed throughout government and society. Heck, you own a major political party and didn’t even have to contribute billions to do it!
30 days and counting till the end of the kakistocracy and the return of hope, sanity, and competence to our national government. Let’s just hope that it’s not too late for those of us who still believe in America and for our world that is hurting for rational, far-sighted, values-based leadership!
“Bill Barr’s Christmas Resignation” is one of the worst pieces of holiday content I have ever consumed! A letdown on every level. First, the title is not a pun. Second, the ending comes out of nowhere.
This story of a deceptively affable-seeming attorney general and how he decides to leave the Trump administration for good to spend the holidays with his family at first seems like it’s going to be standard Christmas fare. A 70-year-old man overly devoted to his occupation who feels no guilt about any of his past deeds and seems deficient in sympathy for his fellow man — what could possibly be a more classic Christmas movie setup? That is why what followed was so disappointing and jarring.
We open with Bill in his office, merrily redacting away at some document that probably should not have been redacted. He is visited by a malicious-looking elf who has messages for him. (Correction: I totally misread what was going on; this was actually senior presidential adviser Jared Kushner. I regret the error.)
We see a picture on Bill’s desk of his boss, Donald Trump, and he keeps going on and on about how excited he is to enact Donald Trump’s agenda. We also learn about all the executions he has scheduled after reinstating the death penalty for federal crimes. This seems incredibly brutal and dark but does establish a character who is going to grow a lot and learn he needs to change his ways.
He leaves the office and drives home past several signs expressing negative sentiments about Donald Trump. He passes Lafayette Square and remembers giving the go-ahead to fire pepper balls at peaceful protesters. He smiles his affable smile. Lights reflect off the window of his secure vehicle. A holiday song plays.
[Alexandra Petri: The 100 worst Christmas songs, ranked]
At this point you, the viewer, glance at your watch. This has been a lot of setup, you think. But it’s called “Bill Barr’s Christmas Resignation”! It ends with him leaving his job as the head of the Justice Department to be with his family. He wouldn’t just do that randomly, would he? There’s got to be an inciting incident of some kind. Perhaps when the clock strikes midnight he will be switched with his secret twin and forced to replicate the White House in fondant for a baking contest. Maybe he will get a call from the head of what claims to be a little-known European country — a perfect call, asking him to spend his holiday season there.
He arrives home and flicks on the TV, where he can see several sinister cronies of Donald Trump (whom he has personally allowed to avoid the consequences of their actions) roaming freely around the city inciting mobs of Proud Boys and even urging their followers to call for martial law. And then he goes to bed and — sleeps peacefully, on a MyPillow.
At this point a commercial for MyPillow came on — the whole thing was sponsored by MyPillow — and I quickly checked to make sure I was watching the right thing, because we were halfway through “Bill Barr’s Christmas Resignation” and he was still going about his life like he didn’t think he’d done anything wrong or needed to change his ways at all. He hadn’t even been assigned to a project he didn’t want to work on with a co-worker who loved Christmas a little too much.
After the commercial, we see Bill is having a dream. It seemed as though this would be when things turned around. In the dream, he walks through a populous city. He sees Want and Ignorance and gives them a thumbs-up. He sees his own tombstone with “Servant of Donald Trump” on it and smiles cheerily at it. He sees a little girl lighting match after match to keep herself warm and — adds the city to his list of Anarchist Jurisdictions.
. . . .
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Read the rest Alexandra’s “Christmas Carol” at the link.
And, what about all the traumatized kids, abused refugee women, and killed or suffering asylum seekers? What’s their “holiday” going to be like as the result of the immoral and often illegal actions one of the most most egregious “faux Christians” in recent history?
PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.
OPINION BY: Judge HARTZ
KEY QUOTE:
On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).
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Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!
This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers.
In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current grossly defective leadership.
I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals.
Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!
The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law.
Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice. It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!
Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”
Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.
We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!
Thanks, Professor Hong to you and your dedicated“crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!
In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.
This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community. As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.
But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality! Things don’t have to be the way they are now at EOIR!
Knightess of the Round TableHon. Jeffrey S. “Sir Jeffrey” Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
More great news from Sir Jeffrey:
Hi all: We filed an amicus brief with the Third Circuit last year in a domestic violence withholding and CAT claim from Mexico. The BIA acknowledged that the petitioner was beaten four or five times a month by her abuser; was raped by him several times, and then lost her job as an agro-engineer with a government agency in Mexico after her abuser beat her violently in front of her co-workers, and her employer told her she could not publicly represent the agency with the resulting bruises on her face. The BIA further recognized that her abuser was able to locate her when she tried to relocate within Mexico. And yet withholding was denied on nexus, and CAT denied on government acquiescence grounds.
A number of other groups, including CGRS, filed amicus briefs as well, and OILu moved to remand under favorable terms. Anju Gupta at Rutgers, who represents the petitioner, said that today, the IJ (who was very much made aware of all of the amicus briefs) granted CAT relief.
The email said that the petitioner (who was previously detained at Elizabeth, NJ) is now in Mexico (I’m not clear on the details), but will hopefully be able to return soon based on the grant.
It’s great that we continue to make a positive difference.
Best, Jeff
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Wow! What a great holiday present!
What a great group with a great mission of promoting due process, advocating for equal justice, and saving lives! Every member of the Round Table has saved lives by standing up for the human dignity and legal rights of those who came before us in Immigration Court. And, we continue to “fight the good fight,” in every possible way at every level of the justice system!
Manning argues immigration judges must ask questions to develop the record for pro se applicants like Arevalo-Quintero about their PSG affiliations. She isn’t alone in her push for a different standard for pro se immigrants applying for asylum.
In an amicus brief, a group of retired immigration judges and former members of the Board of Immigration Appeals point to a Fifth Circuit opinion that says immigration judges have a duty to “seek clarification” and “ensure that the [PSG] being analyzed is included in his or her decision.”
Immigration judges “must remain neutral, but that does not mean that they are passive bystanders during immigration court hearings,” the brief states. “The regulations require IJs, for example, to explain the factual allegations and charges in ‘non-technical’ language.”
. . . .
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Read Brad’s full article at the link.
Many thanks to my“eagle eyed” friend Deb Sanders for sending this my way.
The Round Table 🛡⚔️ continues to play a positive role. Compare that with the unfailingly negative role of the current “EOIR Clown Show.”🤡🤮
In what hopefully will be a much better world after January 20, 2021, the Round Table could work with a “new EOIR,” led and staffed by real judges from the NDPA, on the practical legal and administrative reforms necessary for EOIR to become a “model court,” usingteamwork and best practices to guarantee fairness and due process for all. That’s actually what the “EOIR vision” was prior to the advent of the Bush II Administration in 2001.
That noble vision could still become a reality, but only if the Biden-Harris Administration evicts the “EOIR Clown Show” 🤡and replaces it with competent experts from the NDPA committed to due process for all. ⚖️🧑🏽⚖️🇺🇸🗽
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleRecent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
“Over 87,000 comments were filed. DOJ and DHS ignored them. This is Steven Miller’s final FU to us all,” says my friend Dan Kowalski over at Lexis Nexis Immigration Community.
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Man, the ink was barely dry on my speech last night to Houston AILA, when EOIR graphically illustrated my points about:
why the EOIR Clown Show/Kakistocracy has got to go; and
why we finally need an Attorney General with a human rights background who will act immediately to suspend these absurd and unlawful regs and remove the “perps” of this “crime against humanity” at EOIR and their accomplices.
It also illustrates why the new DHS Secretary needs to do a thorough housecleaning and reorganization of the immigration kakistocracy that has aided and abetted Miller in his neo-Nazi campaign against immigrants of color.
Also, it shows why the NDPA and the human rights advocacy community must speak out and be heard on who should be the next AG and what his or her priorities must be in immediately acting on immigration and human rights as the keys to civil rights and equal justice for all!
This issue can’t be “back burnered” as past Dem Administrations have done! An attack on justice and humanity for asylum applicants is an attack on justice for all of us. We need immediate, decisive action to restore human values and human dignity to our justice system!
That requires a real Immigration Court, with real independent judges unswervingly committed to due process, equal justice, and human rights, not the current “Star Chamber Charade.” 🏴☠️🤮 The Immigration Courts will be under the control of the Biden Administration. Fixing them must be a top priority!
As I told the Transition Team about EOIR, “Either you fix it immediately, or you own it.”
And this is not a disgraceful mess that I would want to own if I were the Biden-Harris Team. Particularly if I wanted more goodwill in the Hispanic and African American (African asylum seekers are one of the groups targeted on racial grounds by Miller and the current regime) communities in future elections!
“EOIR Clown Show Must Go” T-Shirt Custom Design ConceptMe
Good evening, Houston! Hope you and yours are staying well. Thanks for joining me to help plan the next big battle for our New Due Process Army (“NDPA”).
I’m retired, so I can tell it like it is: no party line, no bureaucratic doublespeak, no BS, just the truth, the whole truth, and nothing but the truth. Nevertheless, I do want to hold AILA, your organizers, you, and anyone else of any importance whatsoever harmless for the following remarks, for which I am solely responsible. To borrow the words of country music superstar Toby Keith, “it’s me baby, with your wakeup call!”
And, perhaps to state the obvious: “Houston, we’ve got a problem!” The problem is EOIR, it’s threatening our entire justice system, and I need your help to fix it!
42 days and counting left in the kakistocracy – governance by the worst among us. We got the job done in November. But, by no means is the fight to preserve our justice system and save our nation over. Indeed, in many ways it’s just beginning!
I’m dividing my presentation this evening into two parts. First, I’m going to take you from one of the highlights of my career, the Kasinga decision in 1996, to the depths of the current unmitigated disaster in our Immigration Courts. I’ll explain how policy-making by myth, inadequate leadership, followed by malicious incompetence snuffed out hope and progress and replaced it with despair and return to the dark days of Jim Crow.
Then, I’m going to tell you what needs to be done to restore and re-energize due process at EOIR, why our time is now, and why your voices as members of our New Due Process Army (“NDPA”) need to be heard loud and clear by the incoming Biden-Harris Administration.
* * * * * * *
We also need an AG who is advocate for human rights and immigrants’ rights. Additionally, there is a pressing need for immigration/human rights experts from the NDPA in authoritative positions in other parts of the DOJ, like the SG’s Office, OIL, and the Office of Legal Policy, as well as, of course DHS, ORR, State, and even CDC.
Remember: This isn’t “rocket science!” It’s just common sense, “practical scholarship,” best practices, moral courage, humanity, and respect for human dignity! All of which you and other members of the NDPA have in abundance! Most of all, it’s about getting the right practical experts in the key positions within the incoming Administration.
Unlike the Article III Courts, the “EOIR Clown Show” can be removed, replaced, and justice at all levels improved just by putting the right experts from the NDPA in charge right off the bat. Because these are Executive positions that do not require Senate confirmation, Mitch McConnell’s permission is not required.
Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless frustration, death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of national pride, not a deadly and dangerous national embarrassment!
Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE! It only becomes “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that often has plagued past Democratic Administrations on immigration, human rights, and social justice.
It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA experts, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!
No more clueless politicos, go along to get along bureaucrats, unqualified toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their hard-working representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at EOIR!
Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost, money wasted, and futures ruined! It won’t get done if we don’t speak out and demand to be heard! Let your voices ring out from banks of the Rio Grande to the shores of the Potomac, from the Gulf Coast to the centers of Government!
This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable!
Repeat after me: “Hey hey, ho ho, the EOIR Clown Show has got to go!” Then pass it on to the incoming Administration! Let them know, in no uncertain terms, that you’ve had enough! More than enough!
Thanks for listening, have a great evening, stay well, take care of your families, and, always remember the NDPA rallying cry, Due Process Forever!
Basically, with over 1.3 million backlogged cases already on the docket, EOIR has chosen to expedite and prioritize newer asylum cases where individuals have not had time to obtain attorneys and properly prepare over hundreds of thousands, perhaps one million, of “ready to try” backlogged cases. Some of the latter undoubtedly date back to my time on the bench!
Rather than working with the private bar and ICE on a rational plan to get the cases that are ready to try heard, EOIR has chosen to rush ahead by putting “not ready for prime time” cases in front of those that have been waiting, some for many years. Apparently, the plan is to then dismiss the cases if completed asylum applications aren’t filed by the arbitrary, artificial, and unreasonable deadlines.
Remarkably, attorneys were told that if they couldn’t meet these arbitrary, unreasonable deadlines, they should “file motions.” That will 1) throw more useless paper into an un-automated system already drowning in it; 2) undoubtedly lead to wildly inconsistent adjudications among judges; and 3) generate unnecessary appeals and possible Federal court actions. Some unrepresented individuals likely will be wrongfully deported because they don’t understand what’s happening.
This is “Aimless Docket Reshuffling” in action. A great example of why “The EOIR Clown Show 🤡 has got to go!” Sooner, not later!
Let your voices be heard!
I hear lots of talk about the importance of civil rights from the Biden team. But, as we well know, “immigrants’ rights are civil rights.”
Civil rights reforms and justice for African Americans, Hispanic Americans, and other minorities will continue to be an unrealized dream unless and until we fix the broken and biased Immigration Court system: “The home of ‘Dred Scottification’ and the ‘21st Century Jim Crow.’” As MLK, Jr. once said, “Injustice anywhere is a threat justice everywhere.”
After three decades of abject failure and “deterioration of justice at Justice,” time for some progressive new leadership at the DOJ that takes those words to heart and “connects the dots” between the continuing abuses of Black Americans in the streets and the disgraceful abuses inflicted on immigrants of color and their representatives in our 21st Century “Star Chambers” called Immigration Courts that operate within the DOJ. In my mind, appointing officials who were part of not solving the problem in the past, even if they “know” the DOJ, is not going to get the job done.
We need new faces in leadership at DOJ! That means individuals in leadership positions who have demonstrated a commitment to equal justice for all!Experts in justice rather than political and bureaucratic retreads!Time to value “real life” experiences and achievements over past participation in managing a failed and floundering DOJ bureaucracy that has been “AWOL” on equal justice and immigrant justice for far too long.
Yes, we need a “good manager” at Justice. But, a manager who has seen the problems with the justice system first-hand, through litigation or advocacy against the regime’s abuses, particularly in the Immigration Courts and with racist and unconstitutional immigrant bashing “policies.” A leader familiar with the problems at Justice, but not part of those problems in the past. Sure, that person will need personnel experts and some “bureaucratic insiders” to get the job done. But, they should be part of the team, not driving the train.
There will be no justice for all Americans without justice in our Immigration Courts! So far, I haven’t heard a direct acknowledgement and embracing of that simple fact from the Biden-Harris team. That’s a matter that should be of concern to all of us in the NDPA!
That’s why it’s so important for our voices to be heard now! Before the “train leaves the station” without the NDPA on board, which is precisely what happened in 2008!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including,January 1, 2020. NYC non-detained remains closed for hearings.
NYT: Up to 300,000 additional undocumented immigrants could be allowed to apply for protection from deportation under a new court ruling. President Trump had sought to cancel the program.
ImmProf: As Attorney General, Becerra has filed 100 challenges to Trump administration policies, including many immigration and immigrant-related ones such as the rescission of the Deferred Action for Childhood Arrivals, efforts to defund sanctuary cities, addition of a U.S. citizenship question to Census 2020, and more. Just last week Becerra won a challenge to President Trump’s public charge rule in the Ninth Circuit.
NYT: The “public charge” rule was supposed to ensure that green cards go only to self-sufficient immigrants, but in the pandemic, it is driving up hunger and leaving Joe Biden with a quandary.
Scientific American: Some of the most solid evidence to date shows that President Trump’s cornerstone immigration policy was built on a wholly false premise.
EOIR issued a policy memo (PM 21-06) consolidating and replacing OPPM 00-01, Asylum Request Processing, and OPPM 13-02, The Asylum Clock. The memo concerns the processing of affirmative and defensive asylum applications, the asylum and EAD clocks, docketing and scheduling, BIA appeals, and more. AILA Doc. No. 20120702
EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130
BIA ruled that counsel accepting responsibility of error does not discharge the disciplinary authority complaint obligation, and respondents seeking reopening based on ineffective counsel must show probability they would’ve prevailed otherwise. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020) AILA Doc. No. 20120442
Law360: The full Fourth Circuit will revisit a lower court order blocking the Trump administration’s immigration wealth test, months after a split panel allowed the federal government to enforce the so-called public charge rule while immigrants challenge it in court.
The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708
Upholding the BIA’s denial of asylum, the court held that the Haitian petitioner had failed to establish a nexus between his 2017 attack and a protected ground, where he had provided no credible evidence that the attack was motivated by his political activity. (Celicourt v. Barr, 11/17/20) AILA Doc. No. 20113034
Gothamist: In a ruling issued Monday, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Erie County Clerk Michael Kearns’s 2019 lawsuit seeking to block the state’s Green Light law.
The court held that the BIA erred in deciding that the petitioner, a retired Colombian police officer, had not shown past persecution because threats by the Revolutionary Armed Forces of Colombia (FARC) were written, and because he was never physically approached. (Bedoya v. Barr, 11/25/20) AILA Doc. No. 20120133
The court found that the Attorney General correctly interpreted 8 CFR §§1003.10 and 1003.1(d) in Matter of Castro-Tum in holding that IJs do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (Hernandez-Serrano v. Barr, 11/24/20) AILA Doc. No. 20120134
The court dismissed in part the petitioner’s appeal of the denial of his cancellation of removal application, finding he had failed to exhaust his administrative remedies because he did not ask the BIA to address the subject of criminal violence in Mexico. (Barrados-Zarate v. Barr, 11/24/20) AILA Doc. No. 20120145
Where petitioner sought Convention Against Torture (CAT) relief and argued that the Somali government would acquiesce in his torture, the court held that the record did not show that the Somali government had willfully turned a blind eye to Al-Shabaab’s activities. (Moallin v. Barr, 11/23/20) AILA Doc. No. 20120146
CA9 upheld preliminary injunctions issued against DHS’s public charge rule by district courts in California and Washington. In its order, however, the panel majority vacated the Washington court’s entry of a nationwide injunction. (City and County of San Francisco, et. al. v. USCIS 12/2/20) AILA Doc. No. 20120235
The court issued an order amending its prior opinion and denying the rehearing en banc of Vega-Anguiano v. Barr, in which the court found a reinstatement order improper where the petitioner had shown a “gross miscarriage of justice.” (Vega-Anguiano v. Barr, 11/19/19, amended 11/24/20) AILA Doc. No. 20120147
The court held that, despite its direction to reconsider the testimony of a specialist in gang activity in Central America and its effect on petitioner’s Convention Against Torture (CAT) claim, the BIA erred on remand by according reduced weight to his testimony. (Castillo v. Barr, 11/18/20) AILA Doc. No. 20113035
Granting the petition for review and remanding, the court held that the BIA erred by treating the petitioners’ failure to show prejudice caused by alleged ineffective assistance of counsel as a basis for denying their motion to reopen removal proceedings. (Sanchez Rosales v. Barr, 11/18/20) AILA Doc. No. 20113036
The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709
District court orders DHS to accept first-time requests for DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to 9/5/17 and that one-year deferred action and EADs must be extended to two years. (Batalla Vidal, et al., v. Wolf, et al., 12/4/20) AILA Doc. No. 20120701
Advance copy of USCIS notice that DHS is automatically extending the validity of TPS-related documentation for beneficiaries under TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 10/4/21. The notice will be published in the Federal Registeron 12/9/20. AILA Doc. No. 20120710
USCIS issued a policy memo stating that it will require most petitioners to appear for an interview in connection with Form I-730. USCIS will implement the expansion of in-person petitioner interviews in phases and will provide advance public notice before each phase is implemented. AILA Doc. No. 20113041
DHS issued supplemental policy guidance on MPP, including on access to information about MPP, appeals, family units, mixed-nationality family units, UACs, known physical and mental health issues, use of restraints, interagency collaboration, and ongoing changes. AILA Doc. No. 20120712
CBP announced that the pilot programs it began in January 2020 to assess collection of DNA samples from certain individuals in CBP custody have provided the information it needs to implement nationwide collection. Per CBP, the collection program will reach full operation by December 31, 2020. AILA Doc. No. 20120433
Undoubtedly, the “malicious incompetents” in the regime’s immigration kakistocracy will intentionally leave a mess behind. I also recognize that construction is more difficult than destruction.
But, I don’t subscribe to the “mission impossible” tenor of the Post article above in Elizabeth’s report. Sure, the issues related to immigration are challenging. But, if Biden puts experts from the NDPA in charge they are very solvable, in months and years, not decades!
And, even if there were an immigration “surge” on the horizon, it hardly presents the “dire threat” to America’s security and prosperity that both parties have claimed it to be in the past. The “fiction of the great surge” overwhelming our nation has driven immigration policy of both parties for far too long with disastrous consequences!
In an article I recently posted, my friend and Round Table colleague retired U.S. Immigration Judge Paul Grussendorf, who also has been an Asylum Officer and worked with the UNHCR, cogently debunks the oft repeated myth of “surge theory:”
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
Hon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.com
Indeed, immigration is likely to be a key part of our economic, jobs, and societal recovery. To make that happen, however, we need to end the “Amateur Night at the Bijou” approach that has been take by Administrations over the past two decades, bring in the pros and experts from the NDPA, and empower them to solve problems in conjunction with the private sector, NGOs, industry, labor, and international groups. Figuring out how to create mutually beneficial opportunities from the reality of human migration, rather than treating it as a “threat” that can be eliminated unilaterally (it isn’t, and it can’t) is the way to future success.
It’s not “rocket science.” But it will require cleaning out the immigration kakistocracy at EOIR, DOJ, DHS, DOS, and across Government and replacing it with qualified, professional, experts from the NDPA and letting them solve the problems!
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
I am thrilled to report that VIISTA is getting rave reviews. The inaugural class of students is really enjoying the course. They will be finishing Module 1 next week and will start Module 2 (with its focus on immigration law) in January. I am really impressed so far with their work product and the quizzes and other assessments confirm that they are learning what we want them to learn.
Students in the inaugural class come from diverse backgrounds. My current students include a Stanford college senior who aims to work as a paralegal next year, and eventually go to law school. Other students are recent college grads interested in peace and justice/law/social work who want to make an immediate impact for immigrant families. Some students are first-generation immigrants, others are children of immigrants. Some students are retirees or those seeking an encore career, like empty nesters and parents coming back into the workforce. Three PhDs also enrolled in the program. Many are volunteers with immigrant serving organizations.
I am now focused on getting the word out. Attached and linked here is a recent article from the Chronicle of Higher Education and here is a link to an article from the Columbus Dispatch. And here is a link to the website, immigrantadvocate.villanova.edu.
Please help me to spread the word about VIISTA in your networks, including among volunteers with your organizations. You can also let folks know that scholarships are available for the Spring term, which starts on Monday, January 11.
The Scholarships are offered through ADROP, Augustinian Defenders of the Rights of the Poor.
If you have any questions about the process, please feel free to reach out to Lacie Michaelson (cced here). She is the Executive Director of ADROP and took VIISTA herself as a student in the pilot.
Please note that the deadline to apply for a scholarship for Spring of 2021 semester is Monday, December 14th, 2020.
Thanks for helping me to spread the word and identify passionate advocates for immigrant justice who want to become part of the solution.
Warmly,
Michele
Michele R. Pistone
Professor of Law
Villanova University, Charles Widger School of Law
Founding Faculty Director, VIISTA: Villanova Interdisciplinary Immigration Studies Training for Advocates
Over the past four years, what passes for “management” at DOJ and EOIR has wasted millions of dollars, squandered thousands of hours of time, and kept the private bar on a treadmill with a steady stream of moronic, cruel, and inept “enforcement only” gimmicks, each seemingly stupider and more counterproductive than the last, driven by a White Nationalist nativist agenda. The result is a backlog that has exploded to astounding levels, (even with twice as many judges on the bench, many of them with questionable credentials and little if any expertise in immigration and human rights laws) and a totally dysfunctional mess that threatens to topple the entire Federal judicial system.
As those of us who understand immigration know, the key to a successful EOIR is representation! With an adequate supply of good representation, cases get sorted out at the earliest possible levels, claims are properly documented and presented, individuals show up at their hearings at remarkably high rates, and results are much more likely to be fair. Presto, “Aimless Docket Reshuffling” by EOIR shrinks, parties are encouraged to stipulate and get right to the contested issues, results at trial are more likely to be fair, appeals, petitions for review, and remands decrease, and the backlogs go down as the dockets come under control. Moreover, as the Immigration Court litigation experience improves, more practitioners get the “positive vibes” and are willing to undertake pro bono or low bono cases. Best practices developed to achieve fairness on EOIR’s high-volume docket find their way into other parts of the Federal Court system. It’s an all-around winner! Or, at least it should be!
So, any competent, rational, and knowledgeable “management group” at EOIR would make increasing representation “job # 1.” They would work cooperatively and harmoniously with bar groups, NGOs, states, and localities, to increase availability and improve quality of representation. They would eschew unnecessary detention, which inhibits representation, and insure than courts are reasonably and conveniently located in areas where private representation is abundantly available.
Of course, that’s not what the clowns at EOIR have done! Instead, they have gone out of their way to inflict misery on respondents and their representatives. Far from inspiring more folks to undertake cases, we have all seen stories of how the intentional rudeness and abuse inflicted in Immigration Court and the dysfunctional system actually demoralizes lawyers and causes them to leave the field. Their “stories of woe” are hardly encouragingfor others to donate time and effort.
Fortunately, while EOIR was busy ”kneecapping justice,” someone outside the “EOIR twilight zone” was thinking about how to solve the problem! With help from her friends, Michele designed the VIISTA program to train more non-attorney representatives to represent asylum seekers, convinced folks to fund it, recruited initial classes, and has it up and running. (By contrast, after two decades of wasted resources and incompetent meanderings, EOIR is still without a functioning e-filing system. Think that might have helped or saved some lives during the pandemic?)
And the training is not only a bargain (with scholarships available), it is beyond first class in substance and content. Essentially, it’s “what you really need to learn in law school in less than a year.” The curriculum would put to shame any training we received at EOIR, even before the current Clown Show. My Round Table colleague Judge Jeffrey Chase (a/k/a “Sir Jeffrey”) has reviewed the curriculum and agrees.
The solution is painfully obvious to anyone who takes the time to think about it. On January 21, 2021, give the hook to the Clown Show in Falls Church, and bring in the scholar/problem solvers like Michele and her NDPA colleagues to lead the due process revolution that will transform EOIR into a place where teamwork and innovation will produce the world’s best court system guaranteeing fairness and due process for all. That was once the “EOIR vision” before “serial mismanagement” transformed it into the ugly, dysfunctional Star Chamber that confronts us today.
It need not and should not be that way. But, the vision of true due process at EOIR will only be realized if the Biden Administration puts the right people — folks like Michele and others like her from the NDPA — in place immediately upon assuming power.
Let your contacts in the Biden Administration know that you have had more than enough! The EOIR Clown Show must go!
Due Process Forever!
PWS
12-05-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Hon. Sarah Burr Retired U.S. Immigration Judge Knightess of The Round Table Photo Source: Immigrant Justice Corps websiteHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judgeship
Sir Jeffrey Chase reports:
Attached is the decision of U.S. District Judge Alison J. Nathan of the Southern District of New York ordering ICE to present detained noncitizens before an immigration judge within 10 days of their arrest. It was not unusual as recently as early last year for noncitizens detained by ICE who were eligible for release to wait weeks or months to see an IJ for the first time.
Sarah Burr filed a declaration in support of the litigation that counsel acknowledged was critical to the outcome. Congrats, Sarah, and thanks for your extraordinary efforts on behalf of due process!
Whether as individuals or a group, we continue to make a difference in important decisions.
Best, Jeff
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Thanks, and congrats, Sarah!
You are indeed one of the Round Table’s leading “warrior-princesses!”
Knightess of the Round Table
Your fighting spirit and lifelong dedication to the battle to achieve “due process for all” are a constant inspiration to all of us in the Round Table and the NDPA!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.
It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.
Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!
With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.
EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.
But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.
The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules. Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded. For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.
As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump. In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment. Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality. They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”
It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.
In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea. The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum. Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.
Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious. The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family). These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection. In publishing the final rule, the Departments did acknowledge these concerns raised in the comments. However, as explained above, more than mere acknowledgement was required.
Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required. As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”
In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes? Is that what you thought we said? We meant they were similar to particularly serious crimes. Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”
That section which the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum. The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law. That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.
But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion. The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”
Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection. But thanks are also due to those who took the time and effort to submit comments. Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions.
Imagine all the positives for America that could be accomplished ifall of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.
Ultimately, better qualified, more scholarly, human, and humane Justices — judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.
Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!
