EOIR ISSUES TOOTHLESS 😶 GUIDANCE ON ICE PROSECUTORIAL DISCRETION — Obvious Problem — Failure To Repeal Sessions’s Abominable ☠️ Matter of Castro-Tum — Remains Unaddressed In Garland’s Failed “Courts” That Aren’t “Courts” At All By Any Reasonable Measure!🤡

EYORE — “Come on, Judge Garland! Repeal Matter of Castro-Tum already! Gimme a break! Stop issuing weak-kneed policy memos and give me some qualified, expert, progressive leadership! It’s not rocket science!” “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.justice.gov/eoir/book/file/1403401/download

To: From: Date:

PURPOSE:

OWNER: AUTHORITY: CANCELLATION:

I. Introduction

Provides EOIR policies regarding the effect of Department of Homeland Security enforcement priorities and initiatives.

Office of the Director 8 C.F.R. § 1003.0(b) None.

OOD PM 21-25

Effective: June 11, 2021

All Immigration Court Personnel & Board of Immigration Appeals Personnel Jean King, Acting Director

June 11, 2021

EFFECT OF DEPARTMENT OF HOMELAND SECURITY ENFORCEMENT PRIORITIES

President Biden issued Executive Order 13993 on January 20, 2021, and directed relevant agencies to take appropriate action to review and “reset the policies and practices for enforcing civil immigration laws to align enforcement” with the Administration’s priorities “to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.” Exec. Order No. 13993, 86 Fed. Reg. 7,051 (Jan. 20, 2021).

Accordingly, the Department of Homeland Security (DHS) has issued a number of memoranda and guidance documents regarding its enforcement priorities and framework for the exercise of prosecutorial discretion.1 Those memoranda establish the DHS general enforcement and removal priorities as three categories of cases of noncitizens who present risks to (1) national security, (2) border security, and (3) public safety.2

1 See, e.g., Memorandum from John D. Tasviña, Principal Legal Advisor, ICE, Office of the Principal Legal Advisor (OPLA), to All OPLA Att’ys, Interim Guidance to OPLA Att’ys Regarding Civil Immigr. Enf’t and Removal Policies and Priorities (May 27, 2021), available at https://www.ice.gov/doclib/about/offices/opla/OPLA- immigration-enforcement_interim-guidance.pdf; Memorandum from Tae D. Johnson, Acting Dir., ICE, to All ICE Emps., Interim Guidance: Civil Immigr. Enf’t and Removal Priorities (Feb. 18, 2021), available at https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf.

2 These DHS memoranda and DHS priorities do not change EOIR’s current adjudication priorities, which remain in effect. See, e.g., PM 21-23, Dedicated Docket (May 28, 2021); Exec. Office for Immigr. Rev. Mem., Case Priorities and Immigration Court Performance Measures (Jan. 2018).

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Through individualized review of pending cases, DHS, U.S. Immigration and Customs Enforcement (ICE), attorneys will be determining which cases are enforcement priorities and which are not. Overall, these memoranda explain that DHS will exercise discretion based on individual circumstances and pursue these priorities at all stages of the enforcement process. This includes a wide range of enforcement decisions involving proceedings before EOIR, such as deciding whether to issue, reissue, serve, file, or cancel Notices to Appear; to oppose or join respondents’ motions to continue or to reopen; to request that proceedings be terminated or dismissed; to pursue an appeal before the Board of Immigration Appeals (BIA); and to agree or stipulate to bond amounts or other conditions of release. Accordingly, these memoranda are likely to affect many cases currently pending on the immigration courts’ and BIA’s dockets.

II. Role of the EOIR Adjudicator

The role of the immigration court and the BIA, like all other tribunals, is to resolve disputes. Cf. 8 C.F.R. §§ 1003.1(d) (“The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.”), 1003.10(b) (“In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.”) (emphasis added). At the present time, there are over 1.3 million combined cases pending before the immigration courts3 and the BIA.4 In light of the DHS memoranda, it is imperative that EOIR’s adjudicators use adjudication resources to resolve questions before them in cases that remain in dispute.

A. Immigration Court

Immigration judges should be prepared to inquire, on the record, of the parties appearing before them at scheduled hearings as to whether the case remains a removal priority for ICE and whether ICE intends to exercise some form of prosecutorial discretion, for example by requesting that the case be terminated or dismissed, by stipulating to eligibility for relief, or, where permitted by case law, by agreeing to the administrative closure of the case.5 The judge should ask the respondent or his or her representative for the respondent’s position on these matters, and take that position into account, before taking any action.

In addition, immigration judges are encouraged to use all docketing tools available to them to ensure the fair and timely resolution of cases before them.

3 Exec. Office for Immigr. Rev., Adjudication Statistics: Pending Cases, New Cases, and Total Completions, Apr. 19, 2021, available at https://www.justice.gov/eoir/page/file/1242166/download.

4 Exec. Office for Immigr. Rev., Adjudication Statistics: Case Appeals Filed, Completed, and Pending, Apr. 19, 2021, available at https://www.justice.gov/eoir/page/file/1248501/download.

5 Administrative closure is currently permitted in the Third, Fourth, and Seventh Circuits. See Arcos Sanchez v. Att’y Gen. U.S.A., 997 F.3d 113 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282 (4th Cir. 2019). Administrative closure is currently permitted in the Sixth Circuit, but only to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. See Garcia-DeLeon v. Garland, __ F.3d __, 2021 WL 2310055 (6th Cir., June 4, 2021). Administrative closure is not currently permitted in the other circuits. See Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

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B. Board of Immigration Appeals

Appellate immigration judges should be prepared to review and adjudicate motions from DHS regarding prosecutorial discretion. In addition, appellate immigration judges may solicit supplemental briefing from the parties regarding whether the case remains a removal priority for ICE or whether the parties intend to seek or exercise some form of prosecutorial discretion. See 8 C.F.R. § 1003.1(e)(9) (“[T]he Board may rule, in the exercise of its discretion . . . , on any issue, argument, or claim not raised by the parties, and the Board may solicit supplemental briefing from the parties on the issues to be considered before rendering a decision.”).

III. Conclusion

EOIR expects the parameters of the new DHS memoranda to focus DHS resources on cases that meet the DHS-determined priorities. All EOIR adjudicators are encouraged to use docketing practices that ensure respondents receive fair and timely adjudications, and act consistently with the role of the immigration courts and the BIA in resolving disputes. That includes disposing of cases as appropriate, based on the specific circumstances of the individual matter, with consideration of ICE’s determinations that 1) a case does not fit within the Secretary’s enforcement priorities, and 2) accordingly, pursuit is no longer in the best interest of the Government. If you have any questions, please contact your Assistant Chief Immigration Judge or the Chief Appellate Immigration Judge.

Nothing in this PM is intended to replace independent research, the application of case law and regulations to individual cases, or the decisional independence of immigration judges and appellate immigration judges as defined in 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10.

3

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

“In addition, immigration judges are encouraged to use all docketing tools available to them to ensure the fair and timely resolution of cases before them.”

Unfortunately, the primary “docketing tool” — Administrative Closing — is largely UNAVAILABLE to most Immigration Judges outside the 3rd, 4th, 7th, and (sort of) 6th Circuits. Rather than fix this on “day one” by vacating Matter of Castro-Tum — as recommended by almost all immigration experts — Garland’s inaction has resulted in continuing unnecessary confusion and inefficiency in his dysfunctional “court” system sporting an astounding, continually growing, largely unnecessary 1.3 million plus case backlog! Come on, man!!

Under OPLA’s John Trasvina, ICE is actually taking more aggressive and sensible action to restore due process, sanity, and docket control in Immigration Court than EOIR has under Garland! What sense does that make?

Due Process Forever! Happy Flag Day!🇺🇸

PWS

06-14-21

👎🏽“ADR” IN ACTION: EOIR ISSUES “DEDICATED DOCKET” GUIDANCE FROM THE TOWER! — Experts & Those Affected Continue To Be Snubbed, Left Out Of Process!

Trial By Ordeal — ”Just how is a ‘Dedicated Docket’ using current EOIR precedents and methods, and with too many ‘judges’ still ‘programmed to deny asylum for any reason’ going to help me achieve justice? What if I’m sent to an ‘Asylum Free Zone’ or my fate is put in the hands of a judge striving to achieve membership in the ‘90% Denier Club’ encouraged by Sessions and Barr and still running rampant under Garland?” Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

ADR = “Aimless Docket Reshuffling” — a DOJ/EOIR specialty now being used by Garland’s DOJ

https://www.justice.gov/eoir/book/file/1399361/download

To: All of EOIR

From: JeanC.King,ActingDirector Date: May 27, 2021

DEDICATED DOCKET

Effective:

OOD PM 21-23

May 28, 2021

PURPOSE:

OWNER: AUTHORITY:

CANCELLATION:

Establishes a dedicated docket for certain individuals in removal proceedings.

Office of the Director

Executive Office for Immigration Review (EOIR) Memorandum, Case Priorities and Immigration Court Performance Measures (Jan. 2018); 8 C.F.R. § 1003.0(b)

Policy Memorandum 19-04

EOIR is initiating a Dedicated Docket to focus on the adjudication of family cases as designated by the Department of Homeland Security (DHS). This docket will run alongside typical court operations in immigration courts in ten cities: Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, and Seattle. DHS has indicated that it will be placing on the Dedicated Docket families who crossed the Southern border and whom DHS has placed on alternatives to detention. Cases will be identified for this docket as of the effective date of this memorandum.

EOIR’s immigration judges will endeavor to issue a decision in each case on the Dedicated Docket within 300 days after the initial master calendar hearing. To facilitate such timeliness while providing due process, EOIR will only schedule these cases before immigration judges who generally have docket time available to manage a case on that timeline, but EOIR recognizes that unique circumstances of each case may impact the ability to issue a decision within that period. As needed, the Office of the Chief Immigration Judge will provide additional case management guidance to assist immigration judges in meeting this goal.

EOIR remains committed to the timely resolution of immigration court cases in a fair and impartial manner. Importantly, the adjudication timeframe established by this policy memorandum (PM) and any subsequent case management guidance is an internal goal. Respondents whose cases are on these dockets have the opportunity to request continuances, as do all respondents in removal proceedings, and immigration judges retain discretion to determine whether a continuance should be granted for good cause. See 8 C.F.R. § 1003.29. EOIR expects

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that its immigration judges will make these determinations with full consideration for a respondent’s statutory right to counsel and consistent with due process and fundamental fairness.

Respondents whose cases are placed on these dockets will be provided with a number of services, including access to information services and possible referral services to facilitate legal representation. Each city in which EOIR has established the Dedicated Docket has an established pro bono network.

EOIR previously tracked certain cases designated by DHS in select immigration court locations. See PM 19-04, Tracking and Expedition of “Family Unit” Cases (Nov. 16, 2018). This effort was discontinued during the COVID-19 pandemic and has not been resumed. Thus, PM 19-04 is rescinded.

EOIR is managing the hearings with full consideration for the safety of its employees and all parties who appear in court. EOIR will continue to implement practices and procedures consistent with information from public health officials and guidance from the Office of Personnel Management and the DOJ Justice Management Division. See PM 20-13, EOIR Practices Related to the COVID-19 Outbreak (June 11, 2020).

This PM is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or equities, its officers, employees, or agents, or any other person.

Please contact your supervisor if you have any questions regarding this PM.

2

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

In theory, prioritizing timely adjudication of recently arrived asylum seekers in Immigration Court could be a good idea – along the lines that a number of us recommended to the Biden Transition Team. But, not this way!

This “tone-deaf missive from on high,” as usual, is “designed to fail” rather than “dressed for success:”

It relies heavily on the ready availability of pro bono legal services in certain locations, yet, incredibly, there was NO ADVANCE CONSULTATION & COORDINATION with those key groups;
It is not accompanied by grants or other support to legal assistance groups to help them provide universal representation to asylum seekers;
There is no reason to believe that Immigration Judges in these locations are well-qualified to decide asylum cases merely because they have “docket space available;” indeed there are gross disparities in asylum grant rates among the selected courts;
Anti-asylum precedents issued by the Trump Administration remain in effect which undoubtedly will lead to unfair denials of asylum;
Among these anti-asylum precedents are some incorrectly limiting and discouraging continuances and administrative closing — making the promise of flexibility and fairness totally disingenuous;
Before instituting new programs in consultation with the private bar, the DHS, and the NAIJ (representing the IJs who will actually have to control these dockets), EOIR must slash the backlog by removing from the docket the vast majority of “non-priority” cases forming the astounding, largely self created 1.3 million case backlog;
With better precedents by a new BIA with progressive asylum experts as judges, and some procedural changes, many more asylum cases could be granted “in the first instance” by the Asylum Office, thereby reducing the pressure on the Immigration Courts while reducing the incentives for frivolous opposition to asylum cases by ICE, a big “time waster” in Immigration Court; but no such “progressive thinking or practical problem solving” is reflected in this directive.

Half-baked bureaucratic directives like this won’t solve the problem! It’s just more proof of how completely unqualified Garland’s DOJ and EOIR leadership are to administer a “real court system.” Where are the Article I advocates in Congress? Removing the Immigration Courts from DOJ needs to be one of our highest National priorities.

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! DOJ/EOIR incompetence, never!

PWS

06-02-21

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

https://thehill.com/opinion/immigration/536794-unclogging-the-nations-immigration-court-system

From Immigration Impact:

. . . .

That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.

Supreme Court cancels border wall, asylum policy hearings after Biden…

Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.

Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts.

Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.

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

Read the full article at the link.

Presto: 1.3 million million docket becomes 640,000. And that’s just the beginning!

Here are some more low-budget, immediate action “No-Brainers:”

Vacate all of the anti-asylum, backlog expanding “precedents” issued by Sessions, Whitaker, Barr, and the BIA over the past four years (immediately returning needed flexibility and some degree of fairness to the system);
Reassign the current BIA and replace with expert judges committed to due process who know how to grant asylum and establish precedents on how “clear grants” can be easily identified, properly documented, and consistently adjudicated (eliminate “refugee roulette” — largely a product of an “any reason to deny culture” combined with defective judicial selection, poor training, and lousy leadership);
Return all asylum cases denied over the past four years to the USCIS Asylum Office for adjudication without all the anti-asylum precedents and dehumanizing policies of the Trump regime;
Work with the private bar and NGOs to increase representation with universal representation as the goal;
Eliminate inane and demeaning “production quotas” for EOIR judges (thus placing the emphasis back on careful decision making, thoughtful analysis, and getting the correct result the first time — also restoring IJs’ ability to schedule and manage dockets).

Realistically, 500 Immigration Judges can complete approximately 250,000 to 300,000 cases annually. A combination of 1) the “Chen-Markowitz plan;” 2) the “Schmidt Addendum;” and 3) the more sensible and realistic enforcement priorities initiative already underway at DHS will have EOIR “operating in real time” (and, significantly, in the national interest) in no time at all — without legislation or busting anyone’s budget!

Of course, these initial steps are just the “tip of the iceberg” of the reforms necessary at EOIR, leading to the fulfillment of the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all.” Congress must at the earliest opportunity create an independent Article I Immigration Court to institutionalize and preserve these reforms and “best practices.”

But, in the meantime, lives and our national interests are imperiled by the current deadly (and wasteful) dysfunction @ EOIR. There is every reason to fix the system now! And, it’s not “rocket science” — just expertise and common sense.

Which leads me to another obvious point — Members of the NDPA like Chen, Markowitz, Dean Kevin Johnson, Michelle Mendez, Associate Dean Professor Jaya-Ramji Nogales, Professor Phil Schrag, Professor Michele Pistone, up and coming all-star Lauren Wyatt, Judge Dana Marks and other leaders of the NAIJ, experienced due process oriented Immigration Judges like my former BIA colleague Judge Noel Brennan, and many others like them should be in charge of this effort to reform EOIR and create a model court system.

The Biden Administration must apply the same principles to EOIR Reform that they have elsewhere: Get rid of the “middlemen” and “bring in the experts” to run the show! Articles, papers, speeches, TV interviews, encounter groups, studies, and blogs are great — but putting the right folks in the right places to take action to solve problems is much better and more efficient! Put the folks with the answers in charge!

That would not only create a “laboratory of best judicial practices” that could be applied to the floundering Article III Judiciary, but also would provide the Biden Administration with source of well-trained progressive candidates for the Article III Judiciary. Leadership, including “leading by example” is critical in any well-functioning judicial system; it has been sorely lacking at EOIR (and in the Article III Judiciary) over the past four years. As the Biden Administration has already recognized, the only real leadership among the Federal Judiciary has come from “resistors” like Judge Ashley Tabaddor, now at USCIS.

Incidentally, in her current position at USCIS, Judge Tabaddor is perfectly placed to work with EOIR in carrying out the “Chen-Markowitz plan” to get cases of those potentially eligible for residence out of the EOIR backlog and into USCIS where they can be handled more efficiently.

Suggestion for EOIR Acting Director Jean King: Perhaps you weren’t aware that EOIR just posted the following recruitment notice for Attorney Advisor (Counsel to the Deputy Director) (not a joke, sadly): https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTAyMDMuMzQ1MzcxMTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9sZWdhbC1jYXJlZXJzL2pvYi9hdHRvcm5leS1hZHZpc29yLWNvdW5zZWwtZGVwdXR5LWRpcmVjdG9yIn0.HqH7tPMLAQqeCW9Xc0ooJNBRk_97S44aMG-xy02Pesc/s/842922301/br/97008185548-l

To state the obvious, EOIR needs more “headquarters personnel” like a hole in the head! What you need is a streamlined staff of better-qualified individuals across the board: real judges and professional judicial administrators who will restore due process and get this system functioning again — sooner rather than later.

Additionally, the current Deputy Director Carl C. Risch is a notorious “Trump political burrower” who should be gone by the end of the month. 🧹🪠 https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/office-of-chief-administrative-hearing-officer-ocaho/judge-james-mchenry/carl-c-risch/

Consequently, there is no apparent need for additional “counsel” in his office right now. To say the least, this ill-timed “example of the “Continuing Clown Show at EOIR”🤡 has already become a “internet mini-sensation!” At the very least, you should wait until Risch’s replacement arrives and let her or him make the selection.

Undoubtedly, a reformed IJ tenure program (considering not only discipline but also retention of current judges and improved professional training) that is transparent, fair, and effective is a badly needed and long overdue improvement. But, hiring another bureaucrat (on short notice, which is likely to produce a less than “best qualified” candidate) isn’t the answer.

That being said, I’ve already heard from a number of private practitioners who would love to be in charge of “professional responsibility for Immigration Judges.” They have lots of great ideas for improvements and a number of places where they would start the process immediately, if not sooner!

⚖️🗽🇺🇸Due Process Forever!

PWS

02-04-21

⚖️🗽🇺🇸👩🏻‍⚖️BREAKING: GREAT NEWS FOR DUE PROCESS! – McHenry Ousted @ EOIR, Replaced By Highly Competent, Due-Process-Oriented Professional Judicial Administrator Jean King (Acting) – McHenry Led Miller/Hamilton “Weaponization” Of EOIR, Interference With Judicial Independence, Anti-Asylum White Nationalist Agenda, War On NAIJ & Lawyers, Creation Of 21st “Century Star Chambers” — Gross Mismanagement Helped Artificially “Jack Backlog” To Astounding 1.3 Million Cases With Thousands Of Others Likely “Lost in Space” In EOIR Chaos & Dysfunction!

McHenry informed EOIR employees last Friday that he was returning to his position as an OCAHO Administrative Law Judge. Can’t imagine there were too many tears shed, except within the “inner circle” of the “EOIR kakistocracy.”

OCAHO has long been viewed as EOIR’s “Siberia equivalent” and has been used to “exile” other “out of favor” Senior Execs in the past (ironically including King). Given OCAHO’s traditionally rather limited docket, it appears that McHenry’s ability to further damage our justice system and demean humanity will be restricted.

Notably, he was appointed Director by former Attorney General and notorious child abuser Jeff “Gonzo Apocalypto” Sessions without any known qualifications to manage one of America’s largest, most important, and totally screwed-up court systems. Over his four-year tenure, he proved to be every bit as unqualified for the job as his embarrassingly-thin resume originally suggested he would be.

He was part of the remarkably unqualified aptly-named “Atlanta Mafia” at EOIR. They degraded justice and humanity in equal portions as part of their nativist crusade to expand the “Atlanta Asylum Free Zone” nationwide. Basically, only the courageous hard work of talented immigration advocates stopped their nefarious program from reaching its objective, although that’s not to minimize in any way the lasting damage they did to our legal system and human lives.

Among McHenry’s many negative achievements was driving already-low EOIR morale and poor working conditions to depths never before seen or imagined. And, that was for his own employees! Imagine what it was like for foreign nationals and their courageous, determined, yet beleaguered attorneys consigned to this “hell on earth” specially designed to chew up lives and degrade humanity as part of as vile “strategy” to use “courts as deterrents” to those with audacity to seek justice in America.

Jean King, by contrast, is an experienced public servant known for her commitment to due process, fundamental fairness, sound scholarship, ethical standards (something that has “gone AWOL” at the DOJ over the past four years), and the “lost art of good government” which the Biden-Harris Administration appears committed to re-establishing.

Jean served on the on the BIA staff when I was Chair. She advanced in EOIR during the tenure of the late Juan Osuna as BIA Chair and then Director. She reportedly chose “exile to OCAHO” after she refused as General Counsel to “go along get along” with some of McHenry’s more outrageously illegal regulatory/administrative moves. He also retaliated by cutting the authority of the OGC and assigning it instead to his bogus “Office of Policy.” (Talk about “fraud, waste, and abuse” of government resources –- while the Immigration Courts lacked, and still lack, a functioning e-filing system, McHenry found time and resources for shenanigans like this, obscene “Immigration Judge dashboards,” and pursuing “decertification” of the NAIJ which had “blown the whistle” on his “maliciously incompetent” management!)

McHenry’s continuing presence as Director following the inauguration and his “in your face audacity” in issuing memos attempting to define “judicial independence” as obedience to the White Nationalist restrictionist agenda he had been implementing rightly drew outrage from all immigration experts who understand the ongoing contempt for due process and abuses of humanity that have somehow become “institutionalized” as “acceptable behavior” at EOIR during the last four years. https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053

If nothing else, Jean King should be able to stop the flood of illegal regulations, false and misleading policy memos and bogus “fact sheets,” and further deterioration of due process until “Team Garland” gets its “EOIR Reform Group” in place.

All of us who care about American justice and due process should be heartened that somebody on the Biden Team is aware of the due process disaster at EOIR, has taken bold, decisive action, and apparently plans to fix it, sooner rather than later!

Here is Jean’s bio from the EOIR website:

Jean King
Chief Administrative Law Judge

Jean King was appointed as the chief administrative law judge in June 2019. Immediately prior to assuming her current duties, she served as general counsel of the Executive Office for Immigration Review (EOIR) beginning in September 2015. Ms. King received a bachelor of arts degree in 1988 from Brown University and a juris doctorate in 1995 from the College of William and Mary. From July 2015 to August 2015, and previously from December 2012 to October 2014, Ms. King served as deputy general counsel, EOIR. From November 2014 to June 2015, she served as acting general counsel, EOIR. From October 2011 to December 2012, she served as a counsel to the director, EOIR. From March 2011 to October 2011, she served as acting director of operations, Board of Immigration Appeals (BIA), EOIR. From 2009 to March 2011, Ms. King served as a temporary board member, BIA. From 2006 to 2009, she was a senior legal advisor at the BIA. From 1996 to 2006, she served as an attorney advisor at the BIA. Prior to joining the BIA, Ms. King spent one year as a judicial law clerk with the Superior Court of Connecticut. Ms. King is a member of the Connecticut and New York State bars.

Good luck Jean! Please don’t forget the “Old EOIR Vision” that used to at the top of our internal web page– “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” It’s still the right vision for EOIR and America, and with the right team, in place, it still can be achieved!

Due Process Forever!

PWS

01-27-21

EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, June 8, 2019. The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.

Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions.

Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.

Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ.

Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.

Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values.

Due Process Forever! Happy Flag Day!🇺🇸

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ADR = “Aimless Docket Reshuffling” — a DOJ/EOIR specialty now being used by Garland’s DOJ

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