"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com. — Why won’t Garland repudiate “Gonzo’s” racist, misogynist, anti-due-process policies @ EOIR? Republished under license“She struggled madly in the torturing Ray”– Garland’s failure to repeal Matter of A-B-, revoke other xenophobic precedents and rules, and appoint progressive asylum experts to end the institutionalized racism, misogyny, and denial of due process at EOIR has become a national disgrace that is crippling the Biden Administration and squandering the support of progressives! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
El Salvador’s house of horror becomes grisly emblem of war on women
Authorities have sought to portray the ex-policeman at whose home up to 40 bodies, mostly female, may be buried, as a freakish psychopath, despite the arrest of nine other suspects
Bryan Avelar in Chalchuapa and Tom Phillips
Published:
05:00 Tuesday, 25 May 2021
Day after day they flock to the emerald green house on Estévez Street, seeking news of loved ones who have vanished without a trace.
“They say there are lots in there, maybe 40,” said Jessenia Elizabeth Francia, a 38-year-old housewife who had travelled 20 miles to reach the heavily guarded building under a punishing midday sun.
Francia had come to Chalchuapa, a small town in western El Salvador, in search of her son, Luis Fernando, who disappeared seven years ago at the age of 16. “I just want to find at least his bones so I can bury them and find peace,” she said, clutching a cellphone showing a photograph of her missing child and the words: “I have faith.”
Others sought daughters or wives, Central American women feared to have fallen prey to the house’s proprietor, the former police officer and alleged serial killer Hugo Ernesto Osorio Chávez, who is feared to have buried his victims inside.
El Salvador: dozens of bodies found at ex-cop’s house investigated as femicides
“She was 24,” said Candelaria Carranza Castro, a silver-haired mother whose daughter went missing in July 2015 and who was among those to visit the house on Monday. “Whatever has happened I want to find her.”
The mass grave at No 11 Estévez Street was discovered on the night of 7 May after neighbours called police having heard the cries of a young woman. By the time police arrived more than an hour later she and her mother were dead – reportedly bludgeoned to death with an iron tube by Osorio, who confessed to the crimes. While taking the 51-year-old into custody, police stumbled across the half-buried bodies of two men in the house’s patio and, when they started digging, found more corpses below in a series of pits.
Authorities have yet to announce the precise number of bodies buried inside but the excavators still probing its foundations believe there could be as many as 40, and no fewer than 15.
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Read the rest of the article at the link.
What, exactly, is Garland doing about EOIR to justify his continuance in office? What about supposed social justice, gender justice “activists” Lisa Monaco, Vanita Gupta, and Kristen Clarke? The continuing human rights, gender rights farce at DOJ and EOIR should outrage all progressives and be a continuing stain on all the reputations of feckless Biden Administration officials at the failed and ever more failing DOJ !
A FEW MONTHS BEFORE COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.
I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter.
Right now, our country again faces a critical point in defining our identity: are we in fact a country founded on freedom and designed to welcome those in need? The Biden administration states that it aims to help asylum seekers, but in order to do so we need to reevaluate how we approach asylum at all levels. That begins with reassessing how we determine credible fear.
During my brief time working in Dilley, I helped women prepare for their credible fear interviews. Many asylum seekers might not understand the process, nor necessarily know which details of their stories determine what the United States has deemed credible fear. Asylum is not a guaranteed right, and attorneys are not permitted to help during the interview; thus, preparation is key.
I spoke with a woman who fled five countries to escape her abusive boyfriend. The man followed her from country to country, raping her and threatening her life in each country. No matter where she fled in South and Central America, he followed her. Her five-year-old son, a product of one of these rapes, held her hand during our conversation in the detention center. I spoke with another woman who was threatened by a well-known drug cartel. Through her tears, she could barely communicate to me that they had already killed her brother, taken her money, patrolled the school where she taught, and routinely policed her town, spitting bullets as easily as words. As I interviewed the women, they cradled their young children, who were also visibly traumatized by what they had experienced in their home countries, by their journeys to the United States, and finally by the process to gain safety on this side of the border.
The credible fear interview places the burden of establishing fear on the applicant and is supposed to be non-adversarial, but given the nature of everything that precedes the interview — the lack of representation during the process, the jail-like location in which it takes place, the asylum officer’s constant questions — it feels adversarial. And this is just the first step. If the officer determines that she does have credible fear, the next step is to present her case to an immigration judge in a proper hearing.
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Sadly, and completely unnecessarily and inappropriately, there is nobody in a leadership position at DOJ right now with Elizabeth Silver’s practical insights and understanding of our broken asylum system and how it can be fixed! I’ll bet that neither Garland nor anyone on his senior staff has spent a week at Dilley or any comparable site in the “New American Gulag” trying to represent vulnerable asylum seekers in Garland’s “wholly owned star chamber courts.”
Has Garland even taken the time to observe what’s happening in Dilley, Pearsall, Texas (“home of the Big Peanut”); Jena, Louisiana; Lumpkin, Georgia (“where asylum cases go to die”), or any of the other comparable “courts” (that don’t function like “courts” at all)? Has he ever spoken to asylum applicants and their pro bono lawyers trying to negotiate his fatally flawed and intentionally “user unfriendly” system? Has he gone out and hired progressive “practical scholars” to fill in his “blind spots?”
Round Table Judges John Richardson and I have “seen the Peanut” and lived to tell about it! Pictured here in 2015 with then Pearsall JLC B. Atenis Madico.
That says loads about AG Merrick Garland — none of it good! “Ignorance,” “intransigence,” and “good enough for government work” are not acceptable approaches for the Biden Administration! Yet that’s exactly what Garland has “delivered” on immigration, human rights, racial justice, and gender equity during his first three months at “Justice.”
Of course it’s adversarial! Totally, these days!
The White Nationalist racists in the Trump regime like Miller, “Gonzo” Sessions, “Wolfman,” “Cooch Cooch,” and “Billy the Bigot” hated asylum seekers, people of color, and women and “biased out” the system and selection processes accordingly. Heck, in clear violation of the statute, Trump even replaced USCIS Asylum Officers with totally unqualified Border Patrol Agents to insure denial of even the most compelling claims!
Sessions bogusly bellyached about too many individuals passing “credible fear.” To the contrary, this was totally appropriate, given the “super generous” standards that are supposed to be applied at the “access to the system gateway.” The real systemic problem was in the historically poor performance of the Immigration Courts on asylum grants that got immeasurably worse under Sessions and Barr. (And has remained beyond horrible under Garland’s non-existent “leadership!”)
As almost all legitimate human rights experts would confirm, the “high rejection rate” later in Immigration Court results from far, far, far too many unqualified, non-expert, improperly selected, poorly trained, Immigration “Judges” — at both the trial and appellate levels — operating in a “culture of institutionalized racism, misogyny, and default denial” rather than the generous atmosphere and culture required by the Supremes in INS v. Cardoza-Fonseca but never truly implemented at EOIR.
“Herculean” although the task might appear, there are thousands of well-qualified immigration and human rights experts, most of them in the private sector right now, who could solve this problem and establish due process, fundamental fairness, real asylum expertise, and the rule of law in short order. But, Garland and Mayorkas have failed to remove the deadwood and the Trump/Miller holdovers and have not brought in the expert problem solvers to get this currently deadly, defective, illegal, and blatantly unconstitutional system under control. Additionally, qualified, expert Immigration Judges, REAL independent, courageous Federal Judges, not “go along to get along “bureaucratic retreads,” could also train and effectively supervise the Asylum Officer Corps, rather than woodenly and often ignorantly “rubber stamping” defective denials of “credible fear.”
Incredibly, Garland aggravated this festering problem “right off the bat” by improperly hiring 17 new, non-expert, not judicial quality Immigration Judges from flawed recruitments, skewed lists, and bogus recommendations developed by “Billy the Bigot” Barr! What an amazing lack of awareness and “open dissing” of humane progressive values and commitment to quality in Government!
Does this group represent the type of diverse, progressive candidates that President Biden would nominate for Article III Judgeships? OF COURSE NOT! Then, what possible excuse is there for “gifting” them some of the most powerful and important Federal Judgeships — those with probably more “life or death” authority and discretion over individuals than even the Supremes? No excuse whatsoever!
Our asylum system is totally “fixable.” Immediate improvements can be made and noticeable systemic changes could and should be in place before the end of this year! But, not the way that Garland and Mayorkas are going about it! The deadwood needs to go NOW, and be replaced with expert, progressive leadership, judges, and adjudicators!
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color! His indolent and ineffective approach to asylum decision making in Immigration Court is harming and killing vulnerable individuals and bringing our entire justice system into disrepute!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – “Can we really be proud of this ‘policy?’ Is spineless complicity in wrongdoing really ‘enlightened policy?’ What’s the purpose of an Attorney General who lacks the courage and backbone to stand up and demand immediate reinstitution of Constitutional standards and the rule of law at the border? How do we propose to put a woman or man on Mars when we can’t institute a basic asylum system?” (AP Photo/Julia Le Duc)
“I appeal to the government of the United States to swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.
I welcome the US government’s plans for much needed reform and capacity building to manage border processes and the positive steps that have been taken to exempt unaccompanied children and some families in situations of acute vulnerability from these severe restrictions. A system which allows a small number of asylum seekers to be admitted daily, however, carries with it a number of risks, and is not an adequate response. There is an urgent need to take further steps to provide access at ports of entry which remain closed to most asylum-seekers owing to the Title 42 public health order by the US Centers for Disease Control and Prevention (CDC), in place since March last year.
The Title 42 order has resulted in the expulsions of hundreds of thousands of people to Mexico or their countries of origin, denying their access to asylum procedures. Guaranteed access to safe territory and the prohibition of pushbacks of asylum-seekers are core precepts of the 1951 Refugee Convention and refugee law, which governments are required to uphold to protect the rights and lives of refugees. The expulsions have also had serious humanitarian consequences in northern Mexico.
We at UNHCR, the UN Refugee Agency, have maintained since the start of the pandemic that protecting public health and protecting access to asylum, a fundamental human right, are fully compatible. At the height of the public health emergency, many countries put in place protocols such as health screening, testing and quarantine measures, to simultaneously protect both public health and the right to seek asylum.
I encourage the US administration to continue its work to strengthen its asylum system and diversify safe pathways so asylum-seekers are not forced to resort to dangerous crossings facilitated by smugglers.
For our part, UNHCR stands ready to support the implementation of such a decision.”
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The suffering of migrants continues as does the indifference of Biden officials to racial and gender injustice. Such tone deafness and spinelessness doesn’t bode well for voting rights, police reform, criminal law reform, pay equity, health care, or any other civil rights/social justice initiatives from the Biden Administration!
The Biden folks can’t keep relying on the crimes against humanity by Trump as an excuse for continuing them! Not rocket science — but it should be the number one national priority now that COVID-19 seems to be getting under control and the economy is rebounding.
We aren’t gong to solve the centuries-old problems in the Middle East tomorrow! But, we could and should begin fixing our broken and dysfunctional immigration system and Immigration Courts today (actually should have been underway since Day 1 of the Biden Administration)!
Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?” Official White House Photo Public RealmDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:
These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”
Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.
Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮
Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.
It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:
Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR –NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.
So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!
Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!
Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of ColorAbused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
“Eyore In Distress” — Ethics have long been “on vacation” at EOIR. Sitting judges are muzzled from speaking publicly and can be disciplined for minor transgressions. But, some judges accused of serious misconduct get away scott free under an intentionally opaque process that operates without public input or oversight. Meanwhile DOJ politicos and EOIR Senior Execs operate in open violation of 5th Amendment Due Process and the most basic conflict of interest requirements. The end result is that individuals systematically are denied the “fair and impartial adjudicator” that our Constitution requires! Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Let’s hop on over to ICE and see what our “partner” Kent Frederick wants us to do today to help out our masters at DHS enforcement!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Hon. “Sir Jeffrey” Chase reports to the Round Table:
From: Frederick, Kent
Sent: Friday, June 01, 2018 12:59 PM
To: Weil, Jack (EOIR)
Subject: Matter of Castro-Tum/ IJMorley
Dear Judge Weil:
Just for reference, here is the portion of the decision that 1.1Morley violated:
Matter of Castro-Tum, 27 l&N Dec. 271 (AG 2018), which explicitly directed the matter be remanded “to the Board with instructions to remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the date of this order. If the respondent again fails to appear, the Immigration Judge should proceed according to 8 U.S.C. §
1229a(b)(5).”) Matter of Castro-Tum, 27 l&N Dec_ at 294. Moreover, the Attorney General explicitly rejected the option to terminate or continue this matter on remand if Castro-Tum again failed to appear. Castro-Tum,27l&N Dec.at291 n.12 (“DHS adequately alleged that it provided sufficient notice because the Notice to Appear informed the respondent of all statutorily required information about the proceedings…. DHS also adequately alleged that the form of the notice was sufficient. DHS personally served the Notice to Appear on the respondent and mailed the Notice of Hearing to the address the respondent repeatedly provided the government.”(internal citations omitted)).
Kent J. Frederick
Chief Counsel
Office of the Chief Counsel
U.S. Deportment of Homeland Security immigration and Customs Enforcement 900 Market Street, (b)(6).(b)(7)(C) Philadelphia, PA 19107
(267) 479 —___(2_622_479-3456 (fax)
(b)(6),(b)(7XC)
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Thanks to Judge Sue Roy for forwarding this:
[Above] please find a redacted email obtained through a FOIA request by private attorney Matthew Hoppock. It is a private email between Kent Frederick, the ICE District Counsel in Philadelphia, and Jack Weil, who at the time was the Philadelphia court’s ACIJ. Although the first part of the email is redacted, in the second part, the ICE District Counsel provides Jack with the basis that led to removing Castro-Tum from the case’s proper IJ, Steve Morley.
It should be noted that this is not a motion with service on opposing counsel; this is a private email between ICE and the ACIJ about the handling of a particular case.
While the Chief Immigration Judge should be taking steps to prohibit these types of communications, it bears noting that the present Chief Immigration Judge is the former Atlanta ICE District Counsel.
Best, Jeff
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Thanks to NDPA warrior Matthew Hoppock for once again having the perseverance to use the FOIA to document and “out” misconduct @ DOJ, EOIR, and DHS! What’s the purpose of an “appeals process” if DHS can just raise its dis-satisfaction with legal issues to their “partners” in EOIR “administration” and ask them to take action? For the record, Judge Morley eventually was removed from the case and replaced with an Assistant Chief Immigration Judge who carried out Sessions’s wishes.
I think this is EXACTLY the type of misconduct that “Gonzo” Sessions intended to promote when he unethically exhorted “his judges” to “partner with DHS” to deny due process, target refugee women for abuse, torture, and death, and speed up removals. (However, because Sessions’s undeniable maliciousness was accompanied by mind-boggling and resource squandering incompetence, the overall result was to exponentially increase backlogs while institutionalizing injustice, unethically endangering the lives of migrants, and falsely smearing the professional reputations of their attorneys.)
Sessions, unethically acting as a “quasi-judicial official,” in violation of every ethical rule of judicial disqualification for overt bias, prejudgement, lack of impartiality (every case in which “Gonzo” Sessions participated is a grotesque violation of this — a man whose overt racism once led HIS OWN PARTY to find him unqualified for a Federal Judgeship!), appearance of conflict, and actual conflict of interest, unleashed a torrent of gross unethical behavior at DOJ and DHS. But, there were plenty of lawyers already “on the payroll” who were perfectly happy to engage in unethical conduct in support of the Trump kakistocracy’s White Nationalist, racist, xenophobic, misogynist agenda.
I’ll let the various comments I have received speak for themselves:
When I was an IJ . . . I complained about this practice to Chief IJ Creppy at an open forum at the IJ conference involving an ex parte complaint Frederick had lodged against . . . . Creppy just brushed it off as interagency cooperation.
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At the least, these two should be referred to their state bars for disciplinary proceedings for engaging in impermissible ex parte communication.
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WOW! This is crazy.
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Wow! Just WOW! We always knew it was happening, but this is pretty blatant evidence!
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Utterly unacceptable! It may seem ludicrous or petty, but it is far more than an objectionable practice. It optimizes a fundamental violation of due process that is routinely accepted and even expected.
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Shameful, what happened to the appeal process Mr. Fredrick!
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Is anyone really surprised?
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Disappointed, but not surprised.
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And has been happening ever since I started practicing in the mid-eighties. I agree it is totally unacceptable.
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Jack has been nothing but a profound disappointment. I’m sure you all remember his arrogant and almost insane boast that he. could teach constitutional law to a child respondent. This email is both unethical and stupid: what kind of intellect allows for this response to him to put in writing? I never expect much from an ICE official, but I am always go smacked when a judge acts like a Watergate miscreant.
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Completely shameful, but not surprising. We frequently suspected this kind of thing went on.
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The conduct of “Gonzo” Sessions, then-Director McHenry (still on the EOIR payroll, although thankfully removed from participation in the Immigration Courts), and the EOIR and DOJ officials involved in this sorry incident is reprehensible.
BUT, HERE’S THE REAL PROBLEM:AG Merrick Garland, a respected Article III Judge and one-time Supreme Court nominee, was appointed by President Biden supposedly to clean up the ungodly mess at Justice left by the Trump kakistocracy. He isn’t getting the job done! Not even close!
EOIR requires immediate due process reforms, competent administration, a complete “housecleaning,” and, most of all, progressive leadership by “practical scholars.”
Yet, after three months in office Garland has nary lifted a finger to institute even rudimentary progressive reforms to restore due process at EOIR. Things are just as bad in our disgracefully dysfunctional Immigration Courts as they were on Jan. 20, 2021, in some cases even worse!
Beyond this indolence, Garland outrageously affirmatively appointed 17 non-expert, non-diverse, non-progressive “judges” who were recruited and hand-picked by Billy Barr. Along with Gonzo Sessions, Barr is one of the most unethical, unqualified, un-indicted (yet) AGs in American history. Garland’s lack of awareness, absence of immigration expertise, disrespect for progressive “practical scholars,” and trashing of humane values is super-damaging to our nation!
Of course, nobody can be an “expert” in every legal subject. But, the job of an effective leader is to pick folks who are experts to manage and staff these areas. I don’t see that type of expertise at today’s DOJ or EOIR Headquarters (although there are some well-qualified progressive Immigration Judges on local courts who could have been immediately detailed to EOIR HQ to stabilize the out of control situation).
Garland presides over a massive, deadly, systemic failure and chaotic “Clown Show” 🤡 @ EOIR that threatens the entire U.S. Justice system. I’ve actually known excellent Immigration Judges who have been suspended, docked pay, or threatened with removal for ex parte communications far, far, far less serious than that described above.
How do we teach ethics to an upcoming generation of lawyers when AG Garland and his senior managers are unwilling to hold accountable those who participated in the Trump White Nationalist kakistocracy @ Justice?
Team Garland daily mocks justice by not instituting standards that require demonstrated subject matter expertise, unswerving commitment to due process, fundamental fairness, and a record of ethical behavior from those appointed to, and continuing to serve in, Immigration Judgeships.
Under Garland, EOIR is a life threatening, democracy destroying “disaster zone.” “Team Garland’s” inexcusable failure to appoint qualified progressive experts and to undertake the “no brainer” immediate reforms essential to get the EOIR system back on track has, sadly, become a major problem for the Biden Administration and our nation.
It’s all so unnecessary, so aggravating, so damaging to humanity and American democracy. It’s even worse because the “complicit culprits” are folks (Biden appointees) who were “supposed to know better” and had the incredible, unprecedented advantages of potentially drawing on years of exceptionally high quality research, overwhelming documentation, smart, creative, practical recommendations, and extraordinarily qualified progressive “practical scholars and advocates” ready to solve problems from “inside Government.”
But, they can’t solve the problems solely “from the outside.” It takes an unrelenting combination of progressive experts pushing from the outside and receptive progressive judges and officials on the inside to make the radical changes necessary to save our nation!
Garland’s disrespectful, indolent, and tone deaf treatment of migrants, progressives, and simple human dignity, as well as his gross misunderstanding and diminution of what continues to drive racial and social injustice in America, will certainly come back to haunt the Biden Administration!
Let me reiterate: There will be neither racial justice nor social justice in America as long as our Immigration Courts operate as White Nationalist enforcers of “Dred Scottification of the other.” Immigration/human rights are where “the rubber meets the road” for racial and social justice in America! Immigrants’ rights are human rights, are civil rights, are constitutional rights! As MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”
Groups to AG: Immigration courts need new leaders, hiring review
May 19, 2021 – 4:30 p.m. By Suzanne Monyak, CQ
Dozens of human and civil rights organizations called on Attorney General Merrick Garland on Wednesday to overhaul leadership and review hiring decisions at the U.S. immigration court system, raising concerns of politicized hiring under the prior administration.
In a letter obtained by CQ Roll Call, the 70 organizations accused the Trump administration of transforming the immigration courts, housed within the Justice Department’s Executive Office for Immigration Review, “into a conveyor belt for deportation” and of “systematically hiring personnel to carry out President Trump’s anti-immigrant agenda.”
Under the previous administration, EOIR promoted a number of immigration judges with high asylum denial rates, as well as judges with a history of misconduct complaints.
“Critical and urgent personnel changes are needed to rehabilitate the radically transformed immigration court system that continues to cause irreparable harm and suffering for immigrants and their families,” wrote the organizations, which include the American Immigration Lawyers Association, National Immigration Law Center, Human Rights First and others.
In addition to reviewing personnel decisions made under the Trump administration, the advocates urged Garland to “immediately install new leadership to all key posts” and “diversify the immigration judge corps” by hiring more judges with nonprofit backgrounds.
The organizations faulted the Biden administration for following through with the recent hires of 17 immigration judges, announced earlier this month, most of them with backgrounds as criminal prosecutors and Department of Homeland Security lawyers.
“Despite the Biden-Harris administration’s stated commitment to restoring fairness and balance to the immigration courts, the DOJ continues to rely on Trump-era policies and hiring practices that bias the immigration court system towards prosecution,” the groups wrote.
Garland, confirmed to the helm of the Justice Department in March, inherited a slew of policy changes to the immigration court system implemented under the Trump administration, including policies aimed at speeding up case adjudication and tightening asylum eligibility.
CQ Roll Call reported in 2019 that EOIR leaders revised hiring procedures to make it easier to permanently install certain immigration judges to the Board of Immigration Appeals, the courts’ appellate board that has the power to issue precedential rulings shaping immigration law.
DOJ leadership under the former administration also successfully petitioned to dismantle the immigration judges’ union, which critics say further undermines judges’ discretion over their own caseloads.
A group of senators announced last fall that the Government Accountability Office launched an investigation into the Trump administration’s management of the immigration courts, including its response to the COVID-19 pandemic.
Last month, the Justice Department’s inspector general released a report faulting EOIR for poor communication and a lack of transparency when notifying lawyers and employees about pandemic-related court closures and exposure.
Garland, a former appeals court judge, has yet to rescind most of those changes, fueling calls from lawmakers and advocates to step in.
Last week, Sen. Dianne Feinstein, D-Calif., wrote Garland requesting he rescind two decisions issued by former Attorneys General Jeff Sessions and William Barr that make it harder for domestic abuse survivors, and individuals targeted by gangs or others as a result of their family ties, to qualify for asylum.
“This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” Feinstein wrote.
In January, top Democrats on the House Oversight and Reform Committee also called on Garland to “take all necessary actions” to protect the immigration judges’ union from decertification.
Also, expect a blast from our Round Table soonabout the ongoing due process outrage at EOIR and Garland’s failure to address it!
Next firestorm on the horizon for Garland’s inept, tone-deaf immigration team: Anger and outrage stemming from failure to rescind Barr’s illegal and disgraceful “decertification” of IJ Union — the NAIJ.More “Day 1 Stuff” still awaiting action by Garland as the justice system deteriorates under his feet!
FULL DISCLOSURE: I am a retired member of the NAIJ.
Holy cow! It’s not like lots of progressives didn’t tell the Biden Transition Team, Garland, and anyone else who would listen that radical, progressive Immigration Court reform needed to be a “Day 1” priority at Justice to avoid further disaster.
Compromising due process in Immigration Court and weaponizing EOIR were the keys to the Trump regime’s constitutional deconstruction effort. Consequently, it’s insane for Garland or any other member of the Biden Administration to think that economic equality, voting rights, racial justice, eradication of hate crime, job creation or any other major objective will be attained without new progressive leadership and aggressive progressive due process reforms in Immigration Court. Won’t happen!
You can’t promote social justice while running Stephen Miller’s Star Chambers at EOIR with judges hand-selected by “Billy the Bigot Barr” under flawed procedures.
“Justice” Star Chamber Style. Try as he might, Judge Garland won’t be able promote social justice, racial justice, or indeed any other type of “Justice @ Justice” while running this operation at EOIR with judges hand selected by “Gonzo” Sessions and “Billy the Bigot Barr.” Awarding 17 prime judgeships that should have to gone to progressive experts to flawed “Billy the Bigot” Barr picks might be the single biggest blunder by any Biden Cabinet Member to date. Talk about “unforced error!”
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – (AP Photo/Julia Le Duc) The Biden Administration continues to view the lives of legal asylum seekers, mostly people of color, as expendable and death, rape, torture, child abuse, and other irreparable harm as acceptable “deterrents” to refugees asserting their legal and human rights! That’s basically the Trump/Miller vision! So, what was the 2020 election about?
Dear Paul:
Human Rights First’s work to restore justice at the border took center stage this week. Our experts exposed the political origins of Title 42 and reported on the escalating danger faced by refugees expelled by the Biden administration.
We pushed the administration to more swiftly wind down “Remain in Mexico,” and called out Customs and Border Patrol’s mistreatment of migrants in their custody.
REPORTING ON DANGERS TO REFUGEES EXPELLED TO MEXICO
This week, Human Rights First, RAICES, and the Interfaith Welcome Coalitionfound that despite the epidemic of violence and kidnappings of migrants and refugees, the Biden administration is using Title 42 to expel adults and families with young children to Nuevo Laredo in Tamaulipas, MX.
Courtesy Reuters
Asylum-seekers in the Remain in Mexico policy living inside a
makeshift camp in the Mexican city of Matamoros.
Legal Fellow Julia Neusner highlighted Border Patrol’s shocking mistreatment of refugee and migrant families expelled to danger by the Biden administration in her newest blog post.
EXPOSING TITLE 42 AS A POLITICAL CALCULATION
Our Freedom of Information Act (FOIA) request today revealed that a Trump administration Centers for Disease Control (CDC) political appointee with no public health expertise “work[ed] on” the Title 42 order’s near “final version” for “days” before the former CDC director signed it.
The findings of our FOIA confirm the political origins of the Title 42 order and further underline that the Biden administration’s continued use of Title 42 to block asylum at the border has no basis in public health.
URGING A SWIFTER WIND DOWN TO “REMAIN IN MEXICO”
Human Rights First led more than 50 organizations and law school clinics yesterday in issuing a letter to the Biden administration urging them to improve their wind down of the Trump administration’s ill-named “Migrant Protection Protocols,” and swiftly bring to safety those stranded under the cruel program.
“The lives and safety of asylum seekers still stranded in Mexico are in the hands of President Biden and his administration,” said Senior Director of Refugee Protection Eleanor Acer.
Courtesy Reuters
Migrants sent back to Mexico under MPP
occupy a makeshift encampment in Matamoros, Mexico.
PUSHING TO EVACUATE OUR ALLIES FROM AFGHANISTAN
As part of our effort to bring Afghan allies in the Special Immigrant Visa (SIV) program to safety, President and CEO Michael Breen penned an op-ed calling on President Biden to evacuate those remaining in the program.
“Leaving allies behind would strike at the very core of who we believe ourselves to be and fly in the face of our most sacred creed. What faith would we have left in ourselves? Who would ever stand with us again?” he wrote.
You can join our effort to save our SIVs by contacting your Members of Congress and urging them to take action to protect these allies, many of whom sacrificed so much to work with American forces.
CELEBRATING HUMAN RIGHTS DEFENDERS AT OUR SPRING SOCIAL
We’re excited to announce that Saturday Night Live’s Ego Nwodim will be hosting our Virtual Spring Social LIVE on June 3rd at 6:30pm EST!
Also featuring special guests Ernie Hudson (Ghostbusters, Grace and Frankie), Leeza Gibbons, Hill Harper, and an exclusive musical performance from mxmtoon, with more to come!
Don’t miss this festive, empowering event honoring human rights defenders.
If you want to be a part of the historic 50th marathon and support human rights, please complete our interest form by tomorrow, May 20.
EXPANDING OUR TEAM TO MEET NEW CHALLENGES
Human Rights First empowers Americans to fight for justice in our own communities and around the world. Our staff succeed at bringing real change, and many have gone on to lead at all levels of government.
Requiring the restoration of the legal asylum system at the border is a legal and moral imperative that Garland continues to ignore (compare “Gonzo” Sessions’s willingness to use bogus legal opinions to effectively order DHS to institute illegal, racist, xenophobic policies like “family separation” at the border and an illegal end to DACA).
If Garland had acted promptly and competently, a “New EOIR” unburdened by bogus Trump-era anti-asylum precedents, with a new progressive BIA, and with asylum expert judges assigned to border asylum cases could be working through those cases right now without denying anyone’s rights! It’s not “mission impossible” despite all the right wing blather, reinforced to a large extent by the Biden Administration’s remarkable inability to handle a very predictable border scenario in accordance with the law and best practices, compounded by their inept and uninformed “flackies” whose lack of knowledge about the realities of our immigration system, the human impact, and the very future of our justice system and our democracy at stake continue to be mind boggling!
It’s not going to happen until Garland wises up, removes the “Miller leftovers” at EOIR, and puts progressive experts in charge of repairing and reforming the Immigration Courts as well as restoring law and order at the border. Knowledge is power!And the lack of human rights, immigration, asylum, due process, gender, racial equity, and Immigration Court expertise at DOJ is killing the Biden Administration, along with the folks they are illegally and immorally returning to danger and abuse every day!
Also, a greatly upgraded PIO Team that actually understands immigration, human rights, due process, and their links to racial justice policies, the economy, and other Administration priorities and can provide compelling, factually accurate information in support of reestablishing our legal immigration system and due process should also be a “must do” for the Biden Administration! The fascist, nativist right “misinformation and distortion factory” is “loaded for bear” on these issues; it’s once again “Amateur Night at the Bijou” for the Biden immigration and legal reform efforts, particularly at the inept and apparently clueless DOJ! It should not, and must not continue, to be this way!
Is this REALLY the best recruiting method for a crack immigration/human rights PIO Team at EOIR and DOJ? Are holdovers who spewed forth “Soviet-style” propaganda and misinformation defending the indefensible Trump/Miller White Nationalist viurulently anti-due-process, misogynist immigration agenda @ EOIR & DOJ REALLY the best spokespersons for an Administration pledged to institute progressive changes in immigration? PHOTO: Thomas Hawk Creative Commons Amateur Night
“Justice” Star Chamber Style @ EOIR; Despite the glaring problems, obvious answers, and wide availability of new progressive leadership who should already be removing the deadwood, changing ill-conceived policies, and actually SOLVING representation and other problems at EOIR — America’s most dysfunctional “court” system — Judge Garland would like to study (while ignoring) what’s wrong rather than take needed progressive action!
You can read it here in all of its glorious bureaucratic nothingness and hollow rhetoric:
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Tuesday, May 18, 2021
Attorney General Launches Review to Reinvigorate the Justice Department’s Commitment to Access to Justice
U.S. Attorney General Merrick B. Garland today announced that the Justice Department will immediately begin work to reinvigorate its Office for Access to Justice and to restore the Justice Department’s role in leading efforts across government to seek and secure meaningful access to justice.
“Trust in the rule of law – the foundation of American democracy – depends upon the public’s faith that government seeks equal justice for all. That is the Justice Department’s core duty, and the mission upon which it was built. But without equal access to justice, the promise of equal justice under law rings hollow,” wrote Attorney General Garland in a memo to departmental leadership this afternoon.
The Attorney General directed the Justice Department’s leadership offices to immediately begin a review process that will engage all relevant stakeholders, both within the department and beyond. The review will initially explore, among other things, how the Justice Department and partners across federal, state, territorial, and tribal governments can alleviate entrenched disparities in our criminal justice system, address barriers to access in our immigration and civil legal systems, and advance health, economic, and environmental justice efforts. The Attorney General’s memo also charged Deputy Attorney General Lisa M. Monaco and Associate Attorney General Vanita Gupta with developing recommendations regarding the resources that will be required to reinvigorate the department’s Office for Access to Justice including a staffing strategy and placement within the department in light of its responsibilities.
The Attorney General will submit a detailed plan to the President for expanding the department’s role in leading access to justice initiatives across government within 120 days.
The Justice Department first launched an access to justice initiative in 2010. Building upon that important effort, the Office for Access to Justice was formally established in 2016 to plan, develop, and coordinate the implementation of access to justice policy initiatives of high priority to the department and the executive branch, including in the areas of criminal indigent defense and civil legal aid. However, during the prior administration, the office was effectively shuttered.
In addition to leading this strategic review within the Justice Department, Attorney General Garland will also help to lead access to justice initiatives across government as co-chair of the Legal Aid Interagency Roundtable, which the President reconvened today. That initiative will bring together more than two dozen federal departments and agencies to address the most pressing legal services challenges that low-income communities, communities of color, and many others across our country face today.
As always, actions speak louder than words or bureaucratic promises to “think about it, and get back to you!”
So hopefully somebody will ask Garland how the following things going on in HIS EOIR right now “assist access to justice:”
Continuous, ongoing “Aimless Docket Reshuffling“ at EOIR that generates an astounding, unnecessary, growing, unaddressed by Garland 1.3 million case backlog that generally disadvantages and wears down the private bar;
Elimination of reasonable continuances @ EOIR for the express purpose of favoring the DHS and making it more difficult to represent individuals in Immigration Court consistent with ethical requirements relating to adequate preparation and verification of claims;
“Courts” improperly located in obscure, out of the way DHS detention centers where lawyers are seldom readily available and substandard conditions are intentionally used to duress individuals into giving up viable claims;
Court schedules controlled by unqualified bureaucrats in Falls Church who arbitrarily and capriciously set cases without regard to the needs of parties for preparation time, ethical guidelines, or their workloads;
Unreasonable, shortened, cookie cutter “briefing schedules,” designed to expedite removals at the expense of quality and legal excellence and to artificially “stress out” private attorneys, many serving pro bono or low bono;
Kids and other vulnerable individuals forced to “represent” themselves in Immigration Courts;”
“Judges” who lack immigration expertise and practical experience, therefore forcing already overburdened immigration counsel to “train” these judges, who never should have been appointed in the first place;
Hiring of “judges” at the trial and appellate level renowned for their hostility to asylum seekers (particularly women and those of color) and sometimes with established records of bias, rudeness, hostility, and unprofessional conduct toward the private bar;
Systemic exclusion of private bar immigration, human rights, clinical advocates and experts from the Immigration Judiciary;
Bogus, due-process-denying “deportation quotas” that discourage scholarship and thoughtful complete litigation of life or death cases in favor of meeting artificial production requirements and timelines designed to keep the “EOIR deportation railroad” running;
Promulgation of “operating produces” for Immigration Courts by Falls Church bureaucrats who have never appeared in Immigration Court, without prior consultation with either sitting Immigration Judges or “stakeholders” in the private bar;
Failure after two decades of wasted effort and false starts to implement even a rudimentary nationwide e-filing system, thereby increasing the burden on private practitioners;
Wrong-headed, anti-immigrant “precedents” intended to discourage individuals from pursuing claims in Immigration Court and to require advocates to appeal to Courts of Appeals to have any chance of obtaining justice for their clients;
Following of “worst practices” designed to abuse and increase the stress for advocates in Immigration Court, including failure to follow best health and sanitation practices;
Failure to have any qualified progressive immigration practical scholar “on staff” at DOJ who has actually practiced before the Immigration Courts and could credibly lead the reform effort.
Actually, I’m just getting started! But, I have other things on my agenda today, and you get the point!
Unless progressive immigration advocates “raise hell” with the higher-up in the Biden Administration and on the Hill about Garland’s gross mismanagement of EOIR to date and his lack or expertise or genuine interest in long overdue, badly needed reforms, this is just another Dem “designed to fail” cosmetic effort; yet another insulting attempt by DOJ to fob off immigrants, the private bar, progressives, and their very legitimate needs with more BS “all talk, no action” ineffective policies and plans where immediate, radical progressive, due process reforms are needed, led by progressive experts!
To state the painfully obvious, Vanita Gupta has enough knowledge and enough contacts in the human rights/civil rights community to have gotten someone from the outside in to take control of EOIR, empowered to knock heads, transfer the Trump/Miller anti-due-process “denial club” crowd and their enablers out, and start recruiting and hiring competent administrators, well-qualified progressive judges, and instituting due process enhancing procedures. Things should already be operating much better; and, as many of us told the Biden Transition Team, having “due process take hold and start acting” would send much needed “shock waves” throughout the “go along to get along” bureaucracy at EOIR who assisted Trump and Miller in putting the “final nail in the coffin” of the already-reeling Immigration Courts.
Advocates and members of the NDPA, the first step in vindicating your clients’ legal rights is to insist that your rights, professionalism, and expertise be respected by those in power. Team Garland is effectively “giving you the big middle finger!” 🖕 If you don’t stand up to this outrageous, dismissive treatment from a Dem Administration, how can you make things better for your clients?
EOIR plans to resume non-detained hearings on July 6 at the following immigration courts: Dallas, El Paso, Ft. Snelling, Harlingen, Houston, Houston – S. Gessner Road, Houston – Greenspoint Park Drive, Kansas City, Memphis, New York – Broadway, New York – Federal Plaza, New York – Varick, Portland, San Antonio, and San Juan. Hearings in non-detained cases that are scheduled at the aforementioned courts are postponed through July 3. Noncitizens (or representatives who have entered an appearance with the court) who have not received a notice of reset hearing by June 22 should expect scheduled hearings to proceed. As of July 6, 2021, all immigration courts will be holding limited hearings, applying relevant Federal best practices related to communicable disease.
For cases scheduled from July 6 through July 30, parties (or their representatives who have entered an appearance with the court in a case) who have not received notice of a reset hearing by June 22 should plan to attend their hearing as scheduled. All parties, including those with cases scheduled after July 30, should continue to rely on official notices from the immigration court as the best source for information regarding their hearings
Please note that the option to file by email at the above-listed courts will end on Sept. 4, 2021.
NYT: Most of them are from Central America, fleeing gang violence and natural disasters. But the past few months have also brought a much different wave of migration that the Biden administration was not prepared to address: pandemic refugees. They are people arriving in ever greater numbers from far-flung countries where the coronavirus has caused unimaginable levels of illness and death and decimated economies and livelihoods.
Politico: President Joe Biden on Friday shot down a Trump proclamation that blocked potential immigrants deemed to be a “financial burden” on the nation’s health care system from coming to the United States, saying it didn’t align with U.S. interests.
Politico: Education Secretary Miguel Cardona on Tuesday finalized a new regulation that allows colleges to distribute tens of billions in federal pandemic relief grants to all students, regardless of their immigration status or whether they qualify for federal student aid.
WaPo: President Joe Biden met Friday with six immigrants who benefited from an Obama-era policy that protected those brought to the U.S. illegally as children. The president is trying to turn attention toward overhauling the nation’s immigration laws, but it’s an issue he has made scant progress on in the first months of his presidency.
Law360: U.S. Sen. Dianne Feinstein, D-Calif., urged U.S. Attorney General Merrick Garland to overturn his predecessors’ decisions that restricted asylum eligibility for victims of domestic and gang violence, saying those decisions disregarded refugee protections established 40 years ago.
ProPublica: In newly disclosed records, Trump officials cited conspiracies about Antifa to justify interrogating immigration lawyers with a special terrorism unit. The documents also show that more lawyers were targeted than previously known.
WaPo: Immigration arrests and detentions along the U.S.-Mexico border rose slightly in April to 178,622, the highest one-month total in two decades, according to U.S. Customs and Border Protection data published Tuesday, but a decline in the number of teens and children arriving without parents eased pressure on the Biden administration.
Politico: The Department of Health and Human Services has diverted more than $2 billion meant for other health initiatives toward covering the cost of caring for unaccompanied immigrant children, as the Biden administration grapples with a record influx of migrants on the southern border.
WaPo: The fate of interpreters after the troop withdrawal is one of the looming uncertainties surrounding the withdrawal, including a possible resurgence of terrorist threats and a reversal of fragile gains for women if chaos, whether from competing Kabul-based warlords or the Taliban, follows the end of America’s military engagement.
NYT: The findings suggest that their depressed vaccination rate reflects in large measure misinformation about cost and access, as well as concerns about employment and immigration issues, according to the latest edition of the Kaiser Family Foundation Covid-19 Vaccine Monitor.
Salon: Nearly all the judges on the Justice Department list have backgrounds as prosecutors or as counselors at Immigration and Customs Enforcement (ICE), while nearly none have any experience defending migrants.
TRAC: MPP cases assigned to the Brownsville, Texas hearing location continued to show the highest proportion of individuals allowed to enter the U.S.: 45 percent. However, MPP cases from Laredo, Texas which had been scheduled to start its processing over a month later made up a lot of lost ground by the end of April. Only 3 percent of its cases had been transferred into the U.S. at the end of March to await their Immigration Court hearings.
PM 21-19 (PDF) Cancellation of Policy Memoranda 19-02 (Guidelines Regarding New Regulations Governing Asylum and Protection Claims) and 19-03 (Guidelines Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States)
PM 21-20 (PDF) Cancellation of Policy Memorandum 19-12 (Guidance Regarding New Regulations Governing Asylum and Protection Claims)
PM 21-21 (PDF) Cancellation of Policy Memorandum 20-04 (Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews)
PM 21-22 (PDF) Cancellation of Policy Memorandum 21-09 (Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements)
USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that applicants, petitioners, requestors and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center.
The court held that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. (Arcos Sanchez v. Att’y Gen., 5/5/21) AILA Doc. No. 21051432
Denying the petition for review, the court held that an IJ is not deprived of jurisdiction under 8 CFR §1003.14 over removal proceedings commenced by a Notice of Referral to an IJ that lacks time and place information. (Mejia Romero v. Att’y Gen., 5/5/21) AILA Doc. No. 21051433
The court held that petitioner’s 2007 detention and beating by the Sri Lankan army did not constitute past persecution, and that extortion attempts by the Eelam People’s Democratic Party (EPDP) of Sri Lanka were not motivated by an imputed political opinion. (Thayalan v. Att’y Gen., 5/10/21) AILA Doc. No. 21051438
The court held that the petitioner’s 2000 conviction for second-degree robbery in New Jersey constituted an aggravated felony theft offense under INA §101(a)(43)(G), and thus found that the petitioner was ineligible for asylum and withholding of removal. (K.A. v. Att’y Gen., 5/4/21) AILA Doc. No. 21051435
The court held that petitioner’s grant of Temporary Protected Status (TPS) did not remove the need for him to show that he was admitted in order to be eligible for cancellation of removal, and that his grant of TPS was not an admission for cancellation purposes. (Artola v. Garland, 5/5/21) AILA Doc. No. 21051439
Law360: U.S. residents who are not granted legal permanent residency before they turn 18 can still get citizenship through their naturalized parents, a split Ninth Circuit ruled Thursday in a published en banc opinion that reexamined court precedent.
The court held that, for purposes of removability for crimes involving moral turpitude (CIMT), the phrase “the date of admission” in INA §237(a)(2)(A)(i)(I) is ambiguous, and the BIA’s interpretation of the phrase in Matter of Alyazji was permissible. (Route v. Garland, 5/6/21) AILA Doc. No. 21051440
The court upheld the BIA and IJ’s conclusion that the petitioner’s application for asylum and related relief had been abandoned under 8 CFR §1003.47(c) based on her failure to submit biometrics or establish good cause for her failure to do so. (Gonzalez-Veliz v. Garland, 5/4/21) AILA Doc. No. 21051437
Law360: An El Salvadoran woman who can’t read and whose family mixed up the month and day of her immigration court hearing can seek asylum again, after the Ninth Circuit ruled that her exceptional circumstances warranted a second shot.
Where petitioner argued that an IJ had failed to inform him he could apply for preconclusion voluntary departure, the court found it lacked jurisdiction to consider his petition, because the BIA had ruled that preconclusion voluntary departure was not warranted. (Blanc v. Att’y Gen., 5/11/21) AILA Doc. No. 21051436
Law360: Conservation groups backed by an anti-immigration think tank asked the Ninth Circuit Tuesday to revive their claims that certain U.S. Department of Homeland Security immigration programs must undergo environmental review, arguing a review exemption leads to higher immigration numbers, which then drives ecological degradation.
Verge: While that ban never came to pass, the ability for people with H-4 visas to work is still under threat from a lawsuit against the federal government. The suit, called Save Jobs USA v. US Department of Homeland Security, was brought by tech workers, who argue that H-4 holders are unfair competition for Americans looking for jobs.
ImmProf: The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes”.
DHS released a statement noting that it is “working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant humanitarian exceptions” under the CDC Order issued under its Title 42 public health authority. AILA Doc. No. 21051330
The CIS Ombudsman’s Office issued a reminder that individuals who are eligible to renew their DACA and employment authorization may submit their renewal request between 150 days and 120 days before the expiration on their current Form I-797, Notice of Approval, and on the EAD. AILA Doc. No. 21051035
DHS OIG found that from 1/1/16 through 6/30/19, 83 CBP employees violated CBP policies and guidance by posting, or commenting on, offensive content on various social media platforms. DHS OIG, however, found no evidence that senior CBP leaders were aware of more than a few of the cases, and determined that CBP and Border Patrol headquarters officials took no action to prevent further misconduct, except when directed to do so by DHS. DHS OIG found no evidence that senior CBP headquarters or field leaders were aware of offensive content posted to a private Facebook group until reported by the media in July 2019. AILA Doc. No. 21051441
Two items of particular interest:First the article from Igor Derysh in Solon ripping Garland’s inexcusable “Miller Lite” hiring practices at EOIR. I am quoted, among others.
What’s the purpose of winning an election if this guy remains in charge of EOIR? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The absolute stupidity and betrayal of awarding the Administration’s precious first 17 Federal Judicial positions to lesser qualified, non-progressive individuals hired under tainted, exclusionary, biased, restrictionist practices established by Sessions and Barr under Miller’s negative leadership should outrage all progressives and members of the NDPA. Progressives must demand that the Biden Administration get some due-process oriented, progressive competence installed at the DOJ to straighten out EOIR — a job that to date has proved to be beyond Garland’s ability!
They might also replace Garland’s incompetent “immigration PR team” at DOJ which continues to feed us BS and recycled Trump Administration propaganda that anybody with any familiarity with the Immigration Courts could tell you is pure, unadulterated BS! How insulting!
The millions of folks, including lawyers, caught up in EOIR’s web of restrictionist malicious incompetence deserve better than the insultingly tone-deaf Garland has delivered. Much better!
Progressive reform at EOIR is possible, and it isn’t a profound or long term project. Garland obviously isn’t up to the job. But, there are lots of progressive legal stars out here who can get the job done!
This also illustrates the continuing problem of Dem Administrations appointing AGs who are not experts in immigration and due process and who therefore fail to prioritize progressive immigration, human rights, and due process reforms. Far from being an “afterthought” or “low priority” these are the keys to equal justice and racial justice in America and probably the essential reforms on which the future of our entire democracy depends!
It also illustrates my point that in the future, nobody should become Attorney General, Secretary of DHS, an Article III Federal Judge, or an Immigration Judge unless they have represented individuals in Immigration Court — the critically important “retail level” of our justice system where the “rubber meets the road” of American justice. Right now, the “car is running on four flats” while Garland proves unable to change the tires!
We can’t afford any more of Garland’s “Amateur Night at the Bijou” approach to immigration, human rights, due process, personnel, and racial justice in America!
America needs to end “Amateur Night” at Garland’s EOIR and bring in qualified progressive human rights, immigration, due process leaders to fix the deadly mess before more lives are lost and more taxpayer funds wasted supporting and promoting “malicious incompetence!” PHOTO: Thomas Hawk Creative Commons Amateur Night
Second, the article about the grotesquely illegal abuse of the immigration bureaucracy by the Trump DHS to target and harass lawyers defending the due process rights and humanity of migrants shows just how deeply the cancer of the Trump kakistocracy penetrated into the broken immigration bureaucracy. Just another example of how completely broken, corrupt, and dysfunctional that bureaucracy has become.
It also demonstrates the treacherous stupidity of Garland continuing to tolerate problematic Trump/Miller “holdovers” and actually appointing “same old, same old” non-progressives recruited under Barr, Miller, and Trump to key “life or death Federal Judgeships.”
Additionally, it raises the question of how on earth will Garland’s DOJ effectively and credibly investigate racial justice issues in local policing and elections while Garland is running a White Nationalist, racist, misogynist, grotesquely unfair, regressive, “worst practices court system”at EOIR. Racial justice and competency reform needs to start “at home” — with Garland’s “wholly owned court system” that bears little or no resemblance to a “court of justice!”
Progressives who played a key role in electing Biden and Harris, on the basis of promises to return due process and progressive expertise to the Immigration Courts, and effectively getting Garland his job, need to make their opposition to Garland’s indolent, inexcusable, mis-handling of EOIR known to the Biden Administration and Dem leaders on the Hill! It’s time for progressives and due process advocates to stop letting yourselves be abused by those you have put in power!
Washington—Senator Dianne Feinstein (D-Calif.) called on Attorney General Merrick Garland to review decisions made by the Trump administration restricting asylum eligibility for victims of domestic and gang violence.
The Refugee Act of 1980 extended asylum protections to foreign nationals who fear to return to their home countries due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Trump administration rejected established precedent by restricting asylum eligibility for victims of gang and domestic violence.
“As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” wrote Senator Feinstein.
“I ask that you … consider vacating … those decisions and bring our asylum system back into alignment with the law and the values informing it,” Feinstein added.
Full text of the letter is available here and below:
May 13, 2021
The Honorable Merrick B. Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Garland:
I write regarding two decisions issued by Attorneys General Session and Barr during the Trump administration in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), as well as other opinions based on these decisions. Enclosed are copies of letters I sent the Attorneys General on these decisions, which in my opinion, ignored precedent by eliminating asylum eligibility for many victims of domestic and gang violence. I am sure you share my belief that all who Congress made eligible for asylum should receive the law’s protections.
As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution.
The Refugee Act of 1980 extends asylum to foreign nationals who are unwilling or unable to return their country of origin due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). The Trump Administration rejected established precedent when it concluded that victims of domestic or gang violence ignored by their home countries could not claim the protections of asylum.
Accordingly, I ask that you, as part of your review of “precedential decisions … governing the adjudication of asylum claims” directed by President Biden in Executive Order No. 14,010, consider vacating Matter of A-B-, Matter of L-E-A-, and subsequent opinions based on those decisions and bring our asylum system back into alignment with the law and the values informing it. This approach has been used before to provide timely relief in anticipation of formal rulemaking.
Thank you for your prompt attention to this matter.
Sincerely,
Dianne Feinstein
United States Senator
###
*******************
It’s a very modest, straightforward, well-justified, and long overdue “ask” by Senator Feinstein and others.
It’s simply shocking that Garland continues to dither and “swallow the whistle” on “Basic Day 1 Immigration/Human Rights Stuff” while abused refugee women and their children continue to suffer and die on his watch. Meanwhile, their long suffering pro bono and “low bono” attorneys tear their hair out at Garland’s lack of attention to the horrible human rights, due process disaster in his Immigration “Courts.”
“She struggled madly in the torturing Ray” — Despite outrage from progressives and women’s rights advocates, AG Garland has shown no concern for the suffering of women because of bad Trump-era precedents that he has allowed to remain in effect as well as his continuation of Trump’s lawless refusal to enforce asylum laws at border! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Stephen H. Legomsky Emeritus Professor of Law & Former USG Senior Executive Washington U. Law PHOTO: Washington U. Law website
With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.
On the campaign trail Joe Bidenpledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.
But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.
How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts.
The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.
. . . .
One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.
Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.
Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.
. . . .
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Tortured & abused refugee women’s lives continue to hang in the balance while Judge Garland diddles and runs “Miller Lite Judicial Selection Happy Hour” at failing DOJ! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Read the complete op-ed at the link.
If the current BIA were replaced with competent, expert, progressive, due-process oriented judges tomorrow, as should have happened months ago, this problem could be solved immediately.
I have no doubt that with real asylum experts like Karen as appellate judges at the BIA, Matter of A-B-would rapidly be turned into a blueprint for efficiently granting needed protection to persecuted women. It would also serve as a much needed tool for ending the “asylum free zones” unethically and unprofessionally established by some Immigration Judges throughout the country and starting the long overdue process for removing those unqualified Immigration Judges who are unable or unwilling to fairly grant asylum to qualified applicants and who have created an unacceptable anti-asylum, racist, misogynist culture in some parts of EOIR, in other words the “95% denial club” needs to go! Now!
Disgracefully, that culture was actually encouraged and rewarded by White Nationalist political hacks like Sessions and Barr — folks who never, ever should have had any role in asylum adjudication in America, let alone been permitted to unethically act as “judges” in cases they had “pre-decided” on a mass basis! “Fair and impartial adjudicator,” the core of American constitutional due process, became a sick joke under Sessions and Barr as the Supremes and many Article IIIs disgracefully and spinelessly looked the other way. And, Garland has done nothing to effectively address or reverse this toxic, anti-due-process, racist, misogynist “culture” despite having been told by experts that it was an emergency that could not wait!
Karen and Steve also point out how the BIA disintegrated from a tribunal that was supposed to guarantee fairness and due process for migrants, implement best judicial practices, and protect the most vulnerable from Government overreach into a tool and weapon of DHS enforcement! Yet, 100 days into the Biden Administration, BIA appellate judges who “toadied up” to the Trump regime’s White Nationalist agenda and aided “Dred Scottification” of “the other” by Stephen MIller remain, and experts who should have replaced them remain “on the outside looking in.”
If the Biden Administration and Garland are incapable of putting diverse, qualified progressive experts into a judiciary that they actually control, what are the prospects for progressive transformation of the Article IIIs? That makes this week’s disclosure that Garland mindlessly appointed 17“Miller Lite” Immigration Judges left over from Barr’s flawed recruitment and scummy tenure instead of properly using these valuable positions to start building a long overdue progressive, expert judiciary at EOIR all the more infuriating and outrageous!
The unmitigated, entirely unnecessary, and potentially solvable due process disaster at EOIR will prevent any meaningful progressive immigraton reforms, whether by legislation or Executive action! It’s also undermines racial justice, threatens the future of American justice, and undermines our democracy every day that it festers away, unaddressed.
Garland must fix this problem starting now! Reassigning the 17 judges who should not have been hired and are still in probation, re-competing their positions under merit criteria that encourage applications from all sources and promote diversity, and cancelling the ridiculous plans for the unneeded, due process denying Richmond Adjudication Center (“Star Chamber”) should be just the start.
“It’s a long way to Richmond,” as country singer Travis Tritt would say!
“Unit Chief Immigration Judges” are needed like a hole in the head, probably less. They were a bogus idea cooked up by now deposed former Director McHenry to aid in his misguided union busting initiative. What is needed is less bogus judicial supervision (whoever heard of qualified judges needing “supervisors”) and the accompanying time and resource wasting gimmicks, better professional judicial management, and more competent, progressive, independent, expert immigration judges with experience representing asylum applicants and other immigrants in Immigration Courts and judges with NGO and clinical experience who actually know how to manage dockets and solve problems — skills that are in perilously short supply at EOIR.
Garland needs to replace the “gang that can’t shoot straight” @ DOJ and EOIR with some progressive experts and let them start fixing problems and knocking heads of those still stuck in the Sessions/Barr era! Some of us believe that elections should have consequences. Among those is the immediate end of “Miller Lite Justice @ Justice” and the type of promised due process reforms that got Biden and Harris elected in the first place!
“Miller Lite Justice Hour” is over at DOJ — It’s time for Garland to get on the ball and install progressive judges, competent administrators, and long overdue progressive due process reforms at EOIR — America’s worst and most grotesquely dysfunctional “courts,” that don’t operate as courts at all and which daily destroy the lives of refugee women and other migrants!
The first 17 hires to the court system responsible for determining whether migrants get to remain in the country is filled with former prosecutors and counselors for Immigration and Customs Enforcement (ICE) as well as a few picks with little immigration experience.
Almost none have made their career representing migrants in court.
The Thursday announcement from the Department of Justice (DOJ) initially perplexed immigration attorneys, advocates and even some former immigration judges who wondered why the group so closely mirrored the jurists favored by the Trump administration.
. . . .
It’s also a surprising move for a president that has otherwise sought to quickly reverse a number of Trump immigration policies while calling for a more humane response to migration.
“This is a list I would have expected out of Bill Barr or Jeff Sessions, but they’re not the attorney general anymore. Elections are supposed to have consequences,” said Paul Schmidt, now an adjunct professor at Georgetown Law School after 21 years as an immigration judge. That included time serving as the chair of the Board of Immigration Appeals, the highest administrative body dealing with immigration cases.
“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring — not prosecutorial re-treads,” he added.
. . . .
DOJ pushed back against criticism that the new judges would contribute to a pattern of rulings that favor government attorneys over immigrants, saying it “takes seriously any claims of unjustified and significant anomalies in adjudicator decision-making and takes steps to evaluate disparities.”
“Note also that the Executive Office for Immigration Review (EOIR) continually evaluates its processes and procedures to ensure that immigration cases are adjudicated fairly, impartially and expeditiously and that its immigration judges uniformly interpret and administer U.S. immigration laws,” the spokesperson said.
But Schmidt said diversifying the attorneys on the bench is what will be needed to have a greater impact.
“You need to get some progressive immigration experts into the system who recognize what good asylum claims are who can establish precedent for granting cases and then move those cases through the system,” he said.
“I haven’t seen much evidence to back up their initial claim they want to be fair and just to asylum seekers. It’s just Stephen Miller Lite.”
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The DOJ’s response is preposterous, further evidence Garland is the wrong person to bring “justice” back to “Justice!” No, and I mean NO, progressive immigration expert in America would call the DOJ’s judicial hiring practices under the Trump Administration fair and merit-based! These lists and the selection process were tainted by the Trump kakistocracy at DOJ. What kind of Attorney General perpetuates this utter nonsense!
Numerous detailed reports have criticized the Trump hiring plan that Garland mindlessly and insultingly furthered! Garland has access to all of these criticisms, most of which were delivered to the Biden Transition Team in one form or another. No excuses for Garland’s atrocious handling of EOIR to date!
The claim that EOIR takes claims of glaring discrepancies “seriously” is equally ridiculous and intellectually dishonest! Current TRAC Immigration data shows asylum grant rates for currently sitting Immigration Judges varying from more than 90% to 1% with a number of Immigration Judges, including several “rewarded” with appointments to the BIA under Barr, denying 98% or 99% of claims. Duh, you don’t need to be a statistician or have an Ivy League law degree to know that there is a skunk 🦨 in these woods!
These are major, unacceptable discrepancies first highlighted by my colleagues Professor Andy Schoenholtz, Professor Phil Schrag, and Professor and now Associate Dean (Temple Law) Jaya Ramji Nogales in their seminal work “Refugee Roulette” written more than a decade ago at Georgetown Law. The system is actually immeasurably worse now than it was then, as Sessions and Barr filled the Immigration Bench and packed the BIA with unqualified judges notorious for their lack of knowledge of asylum law and their anti-asylum bias. In some cases, they combined those shortcomings with allegations of rudeness and unprofessional behavior lodged by the private bar.
The NY Times figured out exactly what is wrong with the Immigration Courts — that they are not really “courts” at all by any normal measure and are operated by individualswho place immigration enforcement above due process and equal justice. Garland is certainly smart enough to have figured out what the NYT Editorial Writers had no difficulty in documenting and describing!
Neither Biden nor Garland would be in their current jobs without the efforts of progressive immigration litigators and scholars over the past four years and the energy and resources they injected into the Biden-Harris campaign when the chips were down! Progressives can’t allow the Biden Administration and Garland to continue to treat them as “chopped liver” while coddling Stephen Miller, Billy Barr, and, outrageously, even “AG for 5 minutes” “Monty Python” Wilkinson’s clearly unjustified and highly inappropriate judicial picks!
These are NOT bureaucratic jobs. “Conditional offers” aren’t “jobs,” particularly when made in the “excepted service” on the eve of or even after a hotly contested election where immigration and human rights were major issues! Immigration Judge positions are important life or death judicial positions in what is now America’s worst and most broken judiciary. In that context, Garland’s inappropriate judicial selections are totally outrageous and set a tone of continuing disrespect and disregard for some of the Democratic Party’s most loyal supporters, their expertise, and the important communities they represent!
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-004160Woman 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-004160Gender-based asylum experts like Professor Karen Musalo, who successfully argued the landmark case Matter of Kasinga before the “Schmidt BIA,” and her protégées are among the many progressive immigration/human rights experts systematically excluded from the “Immigration Judiciary” over the past two decades. Now Garland further demeans these experts by appointing “Billy Barr/Stephen Miller Lite unqualified bureaucrats” @ EOIR rather than reaching out and seeking help from Musalo and other progressive experts in long overdue reforms of the Immigration Courts to end institutionalized racism and a culture of misogyny in asylum adjudication @ EOIR! He then has the audacity to defend his error in judgment with unadulterated BS! Whatever happened to Lisa Monaco and Vanita Gupta, as Garland’s gross mishandling of EOIR turns loyal Biden supporters into vocal, energized opponents?
It’s time for the Biden Administration to pay attention to the progressive immigration/human rights/due process bar! Otherwise, perhaps it’s time for progressives to turn their energies and talents to opposing an Administration that neither represents their views nor values their expertise and tireless efforts in support of American democracy and equal justice for all!
I, for one, did not go to the polls last fall to help more “Billy the Bigot” picks off tainted, exclusionary lists, developed in a culture that actively discouraged progressives and minority attorneys from applying, get jobs as Immigration Judges for which there is no way that they are the best candidates available! And, I’ll bet that neither did other members of the NDPA! Enough is enough! End the EOIR Clown Show!☠️🤡 And, if Garland can’t or won’t do that, then Biden needs a new AG before Garland irrevocably splinters the Democratic base with his gross mishandling of EOIR!
“Eyore In Distress” — Garland’s failure to set tone of due process, human rights, excellence, independence @ EOIR threatens U.S. Justice System — could led to downfall of American democracy! Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:
Immigration Courts Aren’t Real Courts. Time to Change That.
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
President Biden took office with a promise to “restore humanity and American values” to the immigration system. If he’s going to succeed, it will take more than shutting down construction on his predecessor’s border wall. The most formidable obstacle to making the U.S. immigration system more humane and functional is invisible to most Americans: the nation’s broken, overwhelmed immigration court system.
Every day, hundreds of immigration judges slog through thousands of cases, unable to keep up with a crushing backlog that has more than doubled since 2016. Many cases involve complex claims of asylum by those who fear for their safety in their home countries. Most end up in legal limbo, waiting years for even an initial hearing. Some people sit in detention centers for months or longer, despite posing no risk to the public. None have the right to a lawyer, which few could afford anyway.
“The system is failing, there is no doubt about it,” one immigration judge said in 2018. As long as the system is failing, it will be impossible to achieve any broad-based immigration reform — whether proposed by Mr. Biden or anyone else.
The problem with these courts isn’t new, but it became significantly worse under the Trump administration. When he took office in 2017, President Donald Trump inherited a backlog of about 540,000 cases, already a major crisis. The administration could have used numerous means to bring that number down. Instead, Mr. Trump’s team drove it up. By the time he left office in January, the backlog had ballooned to nearly 1.3 million pending cases.
How did that number get so high? Some of the increase was the result of ramped up enforcement of immigration laws, leading to many more arrests and detentions that required court attention. The Trump administration also reopened hundreds of thousands of low-priority cases that had been shelved under President Barack Obama. Finally, Mr. Trump starved the courts of funding and restricted how much control judges had over their own dockets, making the job nearly impossible for those judges who care about providing fair and impartial justice to immigrants.
At the same time, Mr. Trump hired hundreds of new judges, prioritizing ideology over experience, such as by tapping former Immigration and Customs Enforcement prosecutors and others who would help convert the courts into a conveyor belt of deportation. In 2018, then Attorney General Jeff Sessions imposed an annual quota of 700 cases per judge. One judge testified before a House committee last year that Mr. Trump’s system was “a widget factory management model of speed over substance.”
By some measures, the plan worked: In 2020, the immigration courts denied 72 percent of asylum claims, the highest portion ever, and far above the denial rates during the Obama and George W. Bush administrations.
If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice. Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.
The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration.
The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer.
In the meantime, there are shorter-term fixes that could help restore a semblance of impartiality and professionalism to the immigration courts.
First, the system must be properly staffed and funded to deal with its backlog. One way to do that is by hiring more judges, and staff members to support them. Today there are about 550 immigration judges carrying an average of almost 3,000 cases each, which makes it nearly impossible to provide anything like fair and consistent justice. Earlier this week, Attorney General Merrick Garland asked Congress for a 21 percent increase in the court system’s budget. That’s a start, but it doesn’t come close to solving the problem. Even if 600 judges were able to get through 700 cases a year each — as Mr. Sessions ordered them to — it would take years to clear up the existing backlog, and that’s before taking on a single new case.
This is why another important fix is to stop a large number of those cases from being heard in the first place. The Justice Department has the power to immediately remove as many as 700,000 cases from the courts’ calendar, most of them for low-level immigration violations — people who have entered the country illegally, most from Mexico or Central America, or those who have overstayed a visa. Many of these cases are years old, or involve people who are likely to get a green card. Forcing judges to hear cases like these clutters the docket and makes it hard to focus on the small number of more serious cases, like those involving terrorism or national-security threats, or defendants facing aggravated felony charges. At the moment, barely 1 percent of all cases in the system fall into one of these categories.
A thornier problem is how to stamp out the hard-line anti-immigrant culture that spread throughout the Justice Department under Mr. Trump, Mr. Sessions and the former president’s top immigration adviser, Stephen Miller. For instance, a 2019 department newsletter sent to immigration judges included an anti-Semitic reference and a link to VDare, an anti-immigrant group that regularly publishes white nationalists.
One of Mr. Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a central role in many of Mr. Trump’s initiatives. But it’s generally hard to fire career civil servants, like the many judges and other officials tapped to promote Mr. Trump’s agenda. The Biden administration can reduce their influence by reassigning them, but this is not a long-term fix. While these judges are subject to political pressures, there can be no true judicial process.
If there’s any silver lining here, it is to be found in Mr. Trump’s overreach. The egregiousness of his administration’s approach to immigration may have accelerated efforts to solve the deeper structural rot at the core of the nation’s immigration courts.
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We know that they aren’t “real courts;” but, they could and should be — progressive, due process oriented, model courts to boot! It will never happen, however, with the tone-deaf way Garland has approached EOIR in his first 60 days!
As progressives, immigration, human rights, women’s rights, due process, and racial justice advocates well know, Garland’s incredibly poor, downright insultingstewardship @ DOJ has already made things worse at EOIR! Every day this “fake” court system — a massive “big middle finger” to the integrity of American justice and a shocking betrayal of those who fought to preserve justice and bring the Biden Administration into power — continues is a “bad day” for equal justice, racial justice, and gender justice in America!
It’s also an inexcusable squandered opportunity for the Biden Administration to “recreate” the broken, biased, lacking in competence “Immigration Judiciary” as an independent progressive judiciary that was promised in rhetoric, but has been mocked in action.
Can any progressive imagine how the Heritage Foundation or the Federalist Society might have reacted if Trump, McConnell, Miller, and the DOJ had treated their recommendations for creating a reactionary far-right judiciary with the callous disregard and total disrespect that Garland has shown for the blueprint set forth by progressives for rapidly reforming the Immigration Judiciary into the model progressive judiciary needed to save American justice (not to mention save the lives of many of the most vulnerable, deserving, and needy among us)?
For Pete’s sake, Garland just gave Stephen Miller, “Billy the Bigot” Barr, and “Monty Python” “deference” on his first 17 totally inappropriate “judicial picks” while telling fighters for due process and human dignity to “go pound sand.” We weren’t even given the courtesy of being informed — Kowalski and I had to “smoke it out” with the help of “DT-21.”
“Courtesy and deference” for Miller, Barr, and “Monty Python;” total disrespect for the NDPA and the humans (“persons” under the Constitution) we represent? Come on, man!
The BIA has “restrictionist judges” going all the way back to the Bush II political travesty supplemented by Miller, Sessions, and Barr. Yet, there is not a single, not one, true progressive practical scholar-immigration/human rights expert among this “Gang of 23”— a group that includes a number of “appellate judges” who distinguished themselves with their overt hostility, to immigrants’ rights, rudeness to attorneys, and denial of nearly 100% of asylum claims coming before them. These are “Garland’s Judges?”
Worse, yet another totally inappropriate “insider appointment” to the BIA by Garland— bypassing the numerous far better qualified “practical scholars” in the private sector — is rumored to be in the offing! NO! This outrageous, tone-deaf performance and disrespect for progressive human rights experts by Garland must stop!
As the editorial correctly suggests, starting to fix EOIR, even in the absence of long overdue congressional action, is not rocket science! The incompetent senior “management” @ EOIR and the entire membership of the BIA can and should be reassigned. Tomorrow!
Experienced, highly competent, scholarly, creative, courageous, progressive judges already on the EOIR bench — like Judge (and former BIA Appellate Judge and DOJ Senior Executive) Noel Brennan (NY), Judge Dana Marks (SF), and Judge Amiena Kahn (NY) — should be detailed to Falls Church HQ to start fixing EOIR and getting the BIA functioning as a real appellate court — focused on due process, high quality scholarship, best practices, and holding ICE accountable for following the law — until more permanent appointments and necessary due process reforms can be made.
In the meantime, competent, progressive, temporary leadership can bring in temporary appellate judges at the BIA with sound records of fair asylum adjudication to end “refugee roulette” and eradicate the disgraceful “asylum free zones” being improperly run by unqualified IJs in some Immigration Courts. Reform of this disgustingly broken system can’t “wait for Godot” any longer!
As Judge Jeffrey Chase cogently stated in Law360, further “permanent” judicial appointments @ EOIR should be frozen pending development of merit-based criteria and active recruitment aimed at creating a more diverse, progressive judiciary. All existing “probationary judges” selected by Barr should have their positions “re-competed” under these merit-based criteria, with avenues of public input built into the permanent selection system.
Progressives, colleagues, members of the Round Table, members of the NDPA, if you’ve had enough of Garland’s lousy, insulting, tone-deaf, indolent, due-process-disparaging performance at EOIR let your voices be heard with the Biden Administration! What is going on at EOIR every day under Garland is not acceptable! The life-threatening, demeaning, totally unnecessary EOIR Clown Show must go! Now!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept — Continues to be in demand under Garland!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesAlyssa Aquino Immigration Reporter Law360 PHOTO: LinkedIn
However, former immigration judge and current private attorney Jeffrey Chase raised concerns over the apparent speed of the appointments. Immigration law and its administration changed vastly under former President Donald Trump, whose attorneys general used their self-referral powers to issue precedents that, in some cases, restricted the number of people who can qualify for asylum. The Justice Department has also curbed immigration judges’ discretionary powers, such as their ability to administratively close or continue cases, and instituted case completion quotas.
“If you’re looking at this whole system, shouldn’t you put your hirings on hold until you actually figure out your whole needs, how to train them and what law will apply to them?” Chase said.
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Some seem to “fob off” these “Miller/Barr leftover” picks as just “in the pipeline!” I call BS!
Judge Garland to EYORE: “And you thought I was going to help you get back on your feet! Fool! It “Miller Lite” time @ EOIR! Progressives and due process warriors need not apply!” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Garland has conducted more “outreach” to “Trumpist holdovers” than he has to progressive advocates and the NDPA! Was this election really about giving Garland a chance to continue the Miller, Sessions, Barr White Nationalist, misogynist, anti-asylum, anti-due-process, anti-private-bar regime @ the EOIR Clown Courts under Dem auspices?
You have no right to a Federal job until you take the oath and actually begin work. And that goes for fake “Billy Barr” and absurd “Monty Python” Wilkinson appointments too, unless these folks were in their judicial positions prior to the November elections.
IJs are classified as DOJ attorneys in the “excepted service.” They actually have fewer rights than most of those selected under the civil service competitive system who had job offers retroactively withdrawn by Reagan.
As far as I can tell from the EOIR release, whatever the gobbledygook about “Barr,” “Monty Python,” or “Garland” “appointments,” it appears that none of these folks actually entered onto duty in their judicial jobs until April, well after Biden’s inauguration and well after the election was decided. It was even after Garland’s swearing in.
Indeed, the “delayed announcement” confirms that the Garland folks knew they were screwing over progressives and individuals caught in the EOIR web of dysfunction and disrespect and were hoping to “slip this in under the radar screen.” Usually, the DOJ can’t wait to tout their new “judicial” hires at EOIR!
Given the mountains of criticism from progressives about the composition of the Immigration Judiciary under Sessions and Barr, the clear efforts by them to redesign the IJ job so that it would be unattractive to most minority attorneys, experts, and due process activists, and the intentional lack of recruitment outreach to “underrepresented communities” of lawyers (basically minority lawyers), there is no excuse for Garland’s actions! These lists were tainted!
Moreover, the Biden Transition Team knew that progressive experts recommended “sea changes” in judicial recruitment, hiring, and training at EOIR and that even those already in EOIR judicial positions under Trump be carefully re-examined under “merit criteria” as to their suitability for judicial positions and their demonstrated commitment to due process for migrants and respect for attorneys.
Additionally, all newly appointed EOIR “judges” serve a two-year probationary period during which they basically can be terminated “at will” by the AG. Even those with limited “tenure” can be transferred out of their judicial positions and moved to other jobs, as those of us “purged” from the BIA by Ashcroft for political reasons can attest. Not only was it totally inappropriate for Garland to go ahead with these “Miller Lite” hires, but he and his team should re-compete the positions of all Barr probationary appointments under revised merit criteria designed to attract a wider, more diverse, and more qualified group of applicants.
These are NOT life-tenured appointments! At most, “probationary judges” who fail to achieve merit reappointment and were previously Federal employees might be entitled to a reassignment to another government attorney position (not necessarily an adjudicator position) at the same pay level. That’s essentially what happened to those of us “purged” from the BIA by Ashcroft in 2003. We were’t even invited to apply for or interviewed for our own jobs! The whole process was done without application of any “merit principles” whatsoever!
The process under which these 17 were selected was intentionally designed to exclude progressives, minorities, and other experts who would be committed as judges to upholding due process and the legal rights of asylum seekers and other migrants! Garland’s message is clear: Immigration expertise, experience representing individuals in Immigration Court, and commitment to enforcing due process and holding ICE accountable DON’T COUNT!
Republicans play “hardball.” Garland, like Dems before him, is a wimp!
Here are the “stats” that should stand out to NDPA members for these 17 tainted “judicial selections:”
Number of known AILA members: 0 (maybe 1)
Number of clinical professors: 0
Number of human rights experts: 0
Number of noted immigration, human rights, immigration scholars: 0
Number of NGO attorneys: 0
Number who represented an individual in Immigration Court in past year: unknown, but max of 2
Number who have been involved in advocating for positive immigration reform: 0
Number who would appear on any list of the “top 100 immigration experts in America:” 0
Number who have won awards for pro bono litigation representing migrants during last 4 years: 0
Number with recently published immigration scholarship: 0
Number with experience administering major pro bono programs: 0
Number with recent community service awards: 0
Number involved with Round Table amicus briefing efforts: 0
Number who have appeared in video training sessions for immigration advocates in past year: 0
Number who have authored or contributed to “white papers” on improving due process in Immigration Court: 0
Number who applied under “Trump-era” announcements and procedures: 17
Number of progressive judges confirmed and sitting on Article III Courts under Biden: 0
Number of progressive Immigration Judges appointed under Biden: 0
Number of regressive Immigration Judges appointed under Biden: 17
17 Immigration Judges are NOT going to make a statistical difference in eliminating or reducing a largely self-created 1.3 million cases backlog! But, they will make a huge difference in the lives of individuals and their lawyers caught up in this designed to fail system. Moreover, initial appointments set a tone.
Additionally, as already pointed out by others, Garland’s continued staffing of “Miller Lite Star Chambers” like the unnecessary and due process denying “Richmond VTC ‘Court’” — without any discussion with stakeholders and advocacy groups who have unanimously opposed it — is a total disgrace!
Folks in the NDPA, Garland is sending you a message: GO POUND SAND! I CARE MORE ABOUT “HUMORING” THOSE SELECTED BY STEPHEN MILLER, BILLY BARR, & “MONTY PYTHON” THAN I DO ABOUT YOU, YOUR EXPERTISE, AND THE HUMANS YOU REPRESENT! AND, I FULLY INTEND TO SUBJECT YOU AND YOUR CLIENTS TO THE SAME “DUE PROCESS DENYING, DEMEANING VTC STAR CHAMBERS” THAT THE TRUMP ADMINISTRATION DESIGNED, OVER YOUR OBJECTIONS, TO KEEP THE “EOIR DEPORTATION RAILROAD RUNNING!”
Heck, I’m retired. But, if I were out there in the trenches like most of the members of the NDPA, I’d take this personally, as exactly the insult and put down by Garland that it is and react accordingly. After eight years of Bushie political hacks, eight years of Obama’s indolent approach to EOIR, four years of “Gonzo” Sessions, Whitaker, “Billy the Bigot,” and “Monty Python” we deserve better!
It’s up to you to get energized, get mad, get even, and force Garland and his outrageous “Star Chamber Courts” to their knees! Because if you’re waiting for him to “wake up and get religion on EOIR,” read your letters, act on your “white papers,” respect your achievements, or treat your clients as humans, you’ll be waiting in vain!
“Judge Garland loves what we do here in the VTC! He wants us to expand! This kind of ‘judging’ gets the quickest results! And, you don’t need to know any immigration law!”
Risch’s last-minute appointment at EOIR was particularly egregious, since he had no known Immigration Court experience. EOIR currently is in an existential crisis that threatens to topple the entire U.S. Justice System, with a highly politicized “judiciary” and an astounding, largely self-inflicted 1.3 million case backlog.
That backlog multiplied much faster than the additional Immigration Judges that Sessions and Barr used to “pack” the Immigration Courts with restrictionists and judges sympathetic to ICE enforcdement and often hostile to asylum seekers and their lawyers. As many experts have observed, the Trump era hires often had highly questionable judicial qualifications, many lacking any immigration law expertise or experience. Perhaps, that’s a reason why the backlog continued to grow exponentially even as Sessions and Barr tried gimmick after gimmick, a number of them blatantly illegal and enjoined by Federal Courts, to cut corners and “rev up” the “Trump Deportation Railroad @ EOIR.”
Obviously, throwing an unqualified political hack like Risch into this mess in a senior “management” position was just another example of the Trump Administration’s abuse of government resources and manipulation of personnel practices @ DOJ. It took some time for Judge Garland to get this one right. But, better late than never.
However encouraging the news of Risch’s departure might be, there is still much more “housecleaning” to be done by Garland at the EOIR Tower. That should start with BIA Chair David Wetmore, a Stephen Miller/Gene Hamilton crony with no positive reputation for scholarship or expertise in the immigration/human rights community and no known experience representing asylum seekers or other migrants in Immigration Court.
It’s little wonder that with “appellate judges” who have earned little respect in the legal community at large comprising the BIA, the system is a mess, turning out poor work product and elementary errors, “outed” by the Article IIIs on a regular basis.
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