"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.
Excerpts from “A New Opportunity to Build a 21st-Century Immigration Court System” by Elizabeth M. Mendoza:
This lack of judicial independence, along with heavy dockets and the vulnerability of the EOIR to the political influence of the administration in power, has created the crisis we have today. It also presents the Biden-Harris administration with the opportunity to course-correct and put the EOIR on a path to effectively, nimbly, and fairly navigate the 21st century and beyond.
. . . .
Immigration judges need to be able to manage their dockets. A practical tool to help them do so is the use of administrative closure. This tool allows judges to “freeze” cases, or make them inactive, at their discretion or when requested to do so by the UP or the Department of Homeland Security. The case remains in the court system under the control of the immigration judge, but it is not on an active docket requiring hearings in court. This tool is commonly used when the UP has a petition pending with another agency, usually Citizenship and Immigration Services (CIS), that if approved would allow the UP to apply for permanent residency in court or with CIS. Through administrative closure, the judge can put the UP’s case on inactive status, allowing the UP to process the petition with another agency. This allows the judge to free up docket slots for other cases and thereby process more cases that do not have collateral relief or are higher priority.
. . . .
It is against this backdrop that the EOIR currently uses quotas. The quota metric imposed by the last presidential administration does little to promote a fair, nimble, effective court system. It is a policy that should be rescinded as soon as possible.
. . . .
Certifying cases without transparency or regard to the reality of the immigration situation at our borders, in our communities, and in the EOIR system itself does not engender confidence that the EOIR is independent. Indeed, case certification is the antithesis of an immigration judge’s judicial independence. And, while an administration may be tempted to use the certification tool to achieve its political and policy goals, it is not appropriate within the judicial context unless it is used to undo precedents clearly at odds with statutes, regulations, or congressional intent.
. . . .
With over 1 million cases pending in its system, the EOIR cannot continue down this path. It should institute reasonable, practical, real-world solutions to manage its docket and afford due process and fairness to those who come before it presenting their cases for relief.
. . . .
The EOIR must be effective, nimble, and fair. The Biden-Harris administration has all the tools at its disposal to recreate an EOIR that embodies these traits. It will require a thoughtful approach, competent management, consistent policy deployment, and transparency to achieve these goals. The last four years saw numerous policy and regulatory changes to the EOIR that fundamentally changed the focus of the immigration court system into what could be considered a “deportation machine.” As noted earlier, the EOIR is a civil court system housed inside a law enforcement agency. It is not an independent court.
. . . .
The people who appear before the EOIR deserve a well-functioning court system. Our communities deserve a court system that promptly adjudicates the cases of bad actors so they can be quickly removed. And our nation deserves an EOIR that reflects the best of American principles—that all people are equal under the law.
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“Nimble” certainly isn’t a word I’ve ever used to describe EOIR. But, it shows exactly why new thinking and dynamic creative leadership is required @ DOJ and EOIR. And, Elizabeth and others are more than ready to provide it! I just don’t think anyone asked them to come on board.
Something I learned as a Senior Executive in the Government and in private practice: If you want to change the composition of your workforce and attract the”best and the brightest” you must ACTIVELY recruit! It’s also something that I learned from rebuilding the Legacy INS legal program under General Counsel Maurice C. “Iron Mike” Inman, Jr.
Mike told me to treat every law school appearance, public speech, CLE, bar luncheon, or training session as a “recruitment opportunity” and never, never to rely solely on the “USG system” for getting out the word to the folks we wanted to reach to improve our program and provide better legal services to the Commissioner. He also insisted that I deliver that message to each member of our senior legal staff: every engagement was a potential selling and recruiting opportunity!
So, here’s Elizabeth’s “resume” —
About Attorney Elizabeth M. Mendoza
Attorney Elizabeth M. Mendoza practices exclusively immigration law since 1993. She is a graduate of Rice University and the University of Houston Law Center.
Attorney Mendoza represents immigrants and their families in family-based immigration, removal defense in immigration court (asylum, CAT, withholding of removal, cancellation of removal, voluntary departure), appeals and motions, consular processing, waivers, citizenship, work permits, TPS, NACARA, VAWA, U and T visas, Deferred Action, widow\er petitions, removal of conditionals of residency, and renewals of residency card.
For over two decades Attorney Mendoza has provided pro bono legal assistance to non-profit organizations throughout the Houston area, such as Catholic Charities. She volunteered at Bush Airport in Houston, Texas to assist travelers affected by the travel ban. Attorney Mendoza volunteered in Matamoros, Mexico in a camp along the Rio Grande helping asylum seekers.
Committed to supporting fair and just immigration laws, Attorney Mendoza has lobbied at the Texas capitol and in Washington, D.C. for comprehensive immigration legislation.
Advocating for immigrants and their families, Attorney Mendoza is a frequent speaker at community know your rights talks in churches and schools.
Attorney Mendoza is a speaker at workshops for the University of Houston Law Center and the state bar of Texas where she presents to colleagues about different immigration law topics.
Currently, Attorney Mendoza serves as the liaison to immigration courts (Executive Office for Immigration Review) in the Houston area on behalf of the American Immigration Lawyers Association (AILA).
Attorney Mendoza is licensed by the state bar of Texas since 1993. She is a member of the American Immigration Lawyers Association since 1996.
So, here’s someone who not only has intellectual brilliance, comprehensive knowledge of immigration, human rights, and due process, organizational skills, presentation and writing skills, creativity, and demonstrated leadership and inspirational mentoring ability, but has actually used them to represent individuals in Immigration Court and to solve real life problems!
Everything a real judge or a competent judicial administrator should be!
Compare Elizabeth’s qualifications and background with the ridiculously thin qualifications of the “Miller Lite Holdover Gang of 17” that Garland had the audacity to announce publicly yesterday! (Only after “DT-21,” Kowalski, and I “outed” the sordid story.) You can’t compare them because there is no comparison! Elizabeth and other NDPA superstars are the folks we need in charge of EOIR, replacing the existing BIA, and on the Immigration Bench across the country. And, they aren’t hiding under rocks!
For obvious reasons many exceptionally well qualified practical scholars and advocates did not apply for largely fraudulent Immigration “Judgeships” that were more like “Deportation Clerkships” operating under a scofflaw, unethical, xenophobic, racist, misogynistic Trump DOJ.
For Pete’s sake, this is a life or death court system, not a stupid bureaucracy! It’s up to folks like Garland to actively recruit the “best and brightest” from the private sector, NGOs, academia, and minority communities to build a diverse, progressive judiciary that eventually will model “best judicial practices” and “feed” the Article IIIs “battle tested” judicial talent unswervingly committed to due process and equal justice for all.
Part of that is “repackaging and reinventing” these jobs as independent judgeships, with good working conditions, adequate support, no political interference, and where courage, integrity, and top flight scholarship in pursuit of due process, fundamental fairness, and equal justice for all will be encouraged, respected, and honored! In simple terms, “more Elizabeth Mendozas.” It’s also why all “recruitments” conducted under the Trump DOJ should be considered tainted and inherently suspect!
Not only was Barr being personally “disingenuous” by announcing his decision before the Mueller report was released and pretending he used the report to reach a conclusion instead of simply announcing the one he’d come to beforethe special counsel’s work had even finished his work, she wrote, “but DOJ has been disingenuous to this Court.”
“The fact that (Trump) would not be prosecuted was a given,” the judge wrote. In reality, it was a given from the moment Barr was appointed by Trump, as the past inevitably became prelude given his first stint as attorney general under George H.W. Bush. Back then, DOJ resisted efforts to get to the bottom of U.S. government-backed financing of Iraq in the run-up to Saddam Hussein’s invasion of Kuwait.
. . . .
Think of Barr as an updated version of Roy Cohn, an earlier Trump lawyer. Both men attended Horace Mann, the swank private school in the Riverdale section of New York City, and Columbia University. As with Cohn, things are not ending well for Barr.
. . . .
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This is actually just the “tip of the ethics iceberg” at the DOJ. Unethical behavior was a staple of the DOJ’s various defenses of the Trump/Miller/Sessions/Barr White Nationalist agenda.
How about things like:
There is no child separation policy;
The “Muslim ban” isn’t a Muslim ban even though Trump said that was exactly what it was;
DHS is taking proper COVID-19 precautions in detention centers;
We can’t find children separated from their families under our child separation policy that we previously said didn’t exist;
The proposed census changes were necessary to protect the civil rights of minorities;
The need to prevent refugees from legally seeking asylum at our borders is a “national emergency” requiring Supreme intervention.
That just a small sampling of the “disingenuous” arguments that were a regular part of defending basically indefensible (and often clearly illegal) positions and policies in immigration cases presented by OIL and the SG’s Office during the Trump regime.
As a number of us have observed, the DOJ needed an immediate and thorough “housecleaning” which there is no sign of Garland being willing to undertake. Most DOJ attorneys are in the “excepted service” or “management officials” meaning that they largely are exempted from civil service protections and basically serve at the AG’s pleasure.
Just this week, we discovered that Garland had “honored” all of the Barr/Miller “holdover” appointments of Immigration Judges. There was absolutely no requirement that he do so, and every single reason why he should have withdrawn and cancelled these inappropriate, if not outright illegal, “holdover appointments” of judges who clearly and beyond any doubt were not the “best and brightest” selections for these important, life-determining Federal judgeships!
Who needs Mitch McConnell to gum up the works when you have Judge Garland to shoot himself and his Administration in the foot 17 times over while their (perhaps soon to be former) supporters look on in outrage and horror at yet another “unforced error” by the Biden Administration on immigration?
Honestly, doesn’t any Dem know how to play “hardball?” Maybe they need to take a seminar from the GOP!
“Can’t anyone here play this game?” Casey Stengel might understand Judge Garland’s strategy. The rest of us not so much. PHOTO: Rudi Reit Creative Commons
As all of us who served in the Federal Government know, you don’t have a Federal job until you take the oath of office and enter on duty. Until then, appointments can, and have in the past been, withdrawn and/or cancelled.
Given the nearly universal condemnation of the Trump Administration’s Immigration Judge and BIA selection criteria — from conservative commentators like Nolan Rappaport (The Hill), as well as liberals and progressives — a moratorium on further judicial appointments generated by the Trump Administration as many recommended should have been a “no brainer” for Garland.
At a minimum, these jobs should have been re-competed under new merit-based criteria that required immigration expertise and fairly credited experience gained through actually representing individuals in Immigration Court or teaching or supervising others doing so. Another requirement should be legitimate recruitment efforts within communities of minority attorneys and the immigration, human rights, and constitutional due process litigation bars.
Additionally, to state the blatantly obvious, the overt racism, misogyny, and improper and unethical enforcement weaponization of the Immigration Judiciary during the Trump regime discouraged many well-qualified progressive candidates from applying! Indeed, a number who were already in Immigration Judge positions, like some esteemed members of our Round Table, felt compelled to resign their judicial positions because of unethical or illegal interference by the Trump DOJ and their EOIR toadies with their quasi-judicial independence and their sworn obligation to uphold the Constitution.
Therefore, the 17 holdover Barr/Miller IJ appointments are necessarily tainted! Far beyond not making further appointments from Barr/Miller lists, a competent Dem AG would institute a review of all Barr IJ appointments still within the two-year probation period and apply merit-based retention criteria — with avenues for comment from the private immigration bar — to decisions as to whether these “probationary judges” should remain on the bench. Based on the anecdotal comments I have received at Courtside from across the country, a number of the Barr-appointed judges should not be on the bench under any circumstances.
This is not about the imaginary “job rights” of Barr/Miller selectees and appointees. No, it’s about the due process rights of migrants in Immigration Court — rights to a fair hearing before a qualified, impartial judge that are being violated on a wide-scale, daily basis in EOIR “courts” (a/k/a “Garland’s Star Chambers”) throughout the nation! It’s also about the right of those representing individuals in Immigration Court, many pro bono or “low-bono,” to respectful, professional treatment by well-qualified Immigration Judges.
Right now, attorneys are sometimes forced to appear before “judges” who know far less about asylum and immigration laws than they do. Many believe that they actually have to “train” these new judges in the law, only to have them go on and deny their meritorious cases on specious grounds.
How would Judge Garland and his “ivory tower lieutenants” like to “practice law” under these conditions! To be honest, “retail level experience” representing humans (not government agencies) in Immigration Count should be a minimum requirement for all Federal Judges up to the Supremes, not just for Immigration Judges! The caviler attitudes and fundamental misunderstandings that Federal Judges at all levels of our broken justice system too often exhibit toward the lives and rights of asylum seekers and migrants are both appalling and unacceptable in a functioning democracy.
This system is broken, and despite having the blueprints for reform in his hands, and hundreds of NDPA experts he could tap to help, Garland hasn’t done squat to fix it!
All and all, Judge Garland is off to a disappointing, actually horrible, start at Justice. And, the idea that he can fix racial justice, equal justice, voting rights, and civil rights while running “Star Chambers” at EOIR is total non-starter. Not going to happen!
“Justice” Star Chamber Style
Those of us who actually recognize what justice is, and who know there will be neither equal justice nor racial justice unless and until there is justice for asylum seekers and immigrants in the Immigration Courts, have an obligation to keep up the criticism until these problems are solved. It’s not rocket science. 🚀 But, it does require a far different approach, much different personnel choices, and bolder, more courageous actions than we have seen to date from the Biden Administration!
The Biden administration’s approach to the border and immigration has been heavily criticized. With Trump-era policies still in place, some advocates object to the way the rules are being enforced right now, specifically a provision known as Title 42.
Geoffrey Hoffman is a clinical professor and director of the immigration clinic at the University of Houston Law Center. Hoffman told Texas Standard that Title 42 authorizes the surgeon general to suspend immigration into the United States on public health grounds. It has been on the books since the 1940s, and though Title 42 has been evoked several times, its use increased significantly during the Trump administration.
“Back in March of 2020, the Trump administration used Title 42 to curtail, basically, entry of almost everyone from the Mexican border coming in to try to seek asylum,” Hoffman said. “And so that was a very, very big impact on those people.”
Hoffman says 600,000 people have been expelled from the country under Title 42.
Immigration advocates say Title 42 is being used as an “end run” around laws allowing asylum-seekers to enter the United States and pursue their claims.
“The issue is really that it’s being used at the land border in Mexico and Canada, and not through other entries. So it’s been seen as being discriminatory, and a racial-justice issue,” Hoffman said.
The Biden administration has continued to use Title 42, carving out an exception for unaccompanied minors who are being allowed into the country to pursue asylum claims. Some immigration advocates say applying Title 42 differently to different populations should be ended.
“You have Title 42 being used, according to immigration advocates, as a pretext,” Hoffman said. “It’s a pretext to prevent people who are otherwise legitimately seeking asylum, preventing them from seeking that relief.”
Hoffman says the United States has an obligation under the nation’s own laws, and under international law, to provide a means by which asylum-seekers can make their claims. Forcing migrants out of the country without a hearing, under Title 42, violates those laws, he says.
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Remember how Jeff “Gonzo Apocalypto” Sessions was never shy about intervening in matters outside his agencyjurisdiction, like child separation and DACA, when it fit his White Nationalist political agenda?
But, Judge Garland has not only failed to restore an operating legal asylum system @ EOIR, but also has stood by and watched while DHS daily commits gross violations of international, constitutional, and statutory law — violations that threaten life and safety — under a pretext carried over from the Trumpists.
Significantly, a U.S. District Judge in D.C. recently ruled that:
It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” she continued. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.
This rationale appears equally applicable to CDC’s legal authority to suspend international conventions, asylum statutes, immigration laws, and constitutional due process on a cosmic scale as pretext for ending our legal asylum system without passing legislation!
Sure, there are problems at the border. But, the solution is to:
restore legal screening at the ports of entry;
reinstate a fair and robust legal asylum process using more trained Asylum Officers and better Immigration Judges — progressive experts in asylum law (NOT like the “gang of 17” same old, same old “bureaucratic retreads” the tone-deaf Judge Garland just put on the bench);
repeal of the Sessions/Barr anti-asylum precedents and replacing the BIA with judges who are asylum experts;
creating more opportunities for legal immigration for both refugees and needed workers;
enlisting the support of the UNHCR, NGOs, religious organizations, universities, and local governments to aid in the processing, representation, and resettlement of asylum seekers; and
slashing artificial and unnecessary Immigration Court backlogs to allow qualified expert Immigration Judges to adjudicate on a “real time” basis represented asylum cases that can’t quickly be granted at the Asylum Office and to establish some positive precedents in asylum law to govern and guide practitioners, Immigration Judges, and Asylum Officers.
It’s not rocket science. But, it very clearly is beyond the capability of Mayorkas, Garland, and the other folks Biden has put in charge of the Administration’s immigration policies. There are folks out there who can do the job — Professor Hoffman is just one of many.
The responsible positions necessary to reform, restore, and revitalize our nation’s refugee, asylum, and immigration laws are mostly at the sub-cabinet level, not requiring Senate confirmation. EOIR is a prime example of a great opportunity for progressive change being inexplicably squandered by Garland and his clueless lieutenants. What is important, and has been conspicuously absent from Biden immigration policies to date, is some inspired leadership and enlightened personnel choices from Mayorkas, Garland, and Becerra.
For example, Jeff “Gonzo Apocalypto” Sessions had no hesitation about spreading false narratives about asylum seekers, demeaning their humanity, disrespecting their hard-working attorneys, and encouraging “his” judges to deny more cases (particularly those involving women of color), and to elevate productivity, cutting corners, and obedience to his policies over quality, fairness, due process, and protecting the legal rights of asylum seekers and other immigrants from DHS overreach.
But, what inspiring statement has Judge Garland made about the necessity of making adherence to fundamental fairness, due process, best practices, quasi-judicial independence, and humane treatment of all respondents the touchstone of EOIR? What visible appointments of widely respected practical scholars and human rights experts has he made in EOIR management, the Immigration Judiciary, OIL, or elsewhere in the DOJ. NONE! Sometimes silence speaks more loudly than words!
With the pandemic and Trump’s xenophobic illegal attack on our legal immigration system, in the face of a sharply declining birth rate, we have plenty room for more immigrants, be they refugees, family members, or essential workers. As Professor Hoffman and others of us had predicted, the racist attack on our immigration system by Trump, unfortunately largely continued by the Biden Administration, has turned our immigration system over to smugglers, cartels, gangs, and pure chance.
A rational, orderly, humane, and most of all legal and constitutional immigration system would benefit all of us. It’s a shame that those currently in Government can’t or won’t make it happen.
“We are fully persuaded that, as discussed in Romero and Meza Morales, the regulations afford IJs and the Board authority to take any action (including administrative closure) as is appropriate and necessary (in the context of each case) for the disposition of such case to resolve questions in a timely and impartial manner consistent with the Act and regulations. After applying the standard tools of interpretation, by considering the text, structure, history, and purpose of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), we hold that the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations. … For the reasons stated above, we conclude that the relevant regulations confer the general authority to administratively close cases to IJs and the Board. We therefore grant the petition for review, vacate the Board’s order, and remand for proceedings consistent with this opinion.”
So, the Third joins the Fourth and the Seventh in rejecting Castro-Tum, while the Sixth (wrongly) upheld it. In the other Circuits, Castro-Tum remains in effect “by default.” I’ve received reports, though, that some IJ’s in the Fourth Circuit simply ignore the Circuit precedent, emboldened by the “in your face contemptuous attitude” inculcated by the Trump Administration. Apparently, they fear their “enforcement boss” — the AG — more than life-tenured Article III judges. And, to date, Garland has done little or nothing to dispel that attitude.
Shortly after the election, many experts pointed out to the incoming Biden Administration the critical importance of “hitting the ground running” on EOIR reform: immediately vacating the Sessions/Barr precedents; ousting incompetents and restrictionists from EOIR “management,” replacing the BIA with expert progressive judges who could issue correct guidance and keep nativist judges in line; slashing artificial backlogs; reinstating the NAIJ; establishing progressive criteria for hiring and retaining judges; re-establishing a legal asylum system, particularly at the border; ending misogynistic attitudes and treatment of women of color; and bringing in nationally recognized immigration/human rights experts to reestablish due process and best practices nationwide.
Garland has basically ignored the experts in favor of an incomprehensible “Stephen Miller Lite” program of continued injustice, disrespecting and ignoring the needs of stakeholders and foreign nationals, and promoting chaos, inconsistency, and inept practices.
For example, without Castro-Tum, the majority of cases languishing in the 1.3 million backlog probably would be prime candidates for administrative closing under the Biden Administration’s own criteria of what constitutes a “priority.” Having differing and uncertain rules from Circuit to Circuit, along with tolerating IJs who feel empowered to ignore Circuit law, is a recipe for further disaster.
So far, 75% of the Circuits to consider the question have rightly rejected Castro-Tum. If this plays out, hundreds of thousands of cases will be subject to redos, reconsideration, and reopening because of Sessions’s poor judgment combined with Garland’s failure to engage with the endemic problems in “his” courts.
but yesterday the Director’s message indicated that the 17 new judges were – In April, we welcomed 17 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge, six Unit Chief Immigration Judges, and ten IJs. They will serve in the following locations: Adelanto, Atlanta, Chicago, Houston, New York, Portland, and Richmond
A thought to share – I suppose one who is familiar with the above courts could check out each court website listing the judges snd see who is new. Then some web searching can get backgrounds. Takes time, yes, but perhaps more fruitful than waiting for EOIR to respond.
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So, EOIR “welcomed” new IJs in April without bothering to introduce them to the community whose lives and professional futures will be in their hands. This is how Garland intends to “do business” with those in the advocacy community who helped put him in his job! Nice touch, Judge G!
Heck, even Sessions & Barr were willing to announce publicly the names and backgrounds of those with whom the were “packing” their Immigration Courts. They actually were quite proud of their anti-due-process, anti-progressive, non-expert picks that they could “shove down the throats” of the advocacy community (“dirty lawyers” as Gonzo Sessions called them) and their clients — the “other” in our society, not worthy of the legal and human rights conferred on “real persons.”
But, Team Garland is neither as honest nor as forthcoming. “Get it though the rumor mill” or find out the day of your “star chamber proceeding” is apparently the new attitude of contempt at DOJ/EOIR for the NDPA!
Obviously, expansion and staffing of the “Richmond VTC” — a “kangaroo court” arrangement opposed and panned by most immigration and human rights experts is a slap in the face to ethnic communities and activists who helped put Biden and Harris (and indirectly Garland, Monaco, and Gupta) in office.
Fortunately, the NDPA knows a thing or two about how to “speak through litigation and political agitation” if that’s the game the Biden Administration wants to play. It’s now becoming clear that any positive changes and due process in the Immigration Courts over the next four years will come from outside the Administration.
So be it! It might not bode so well, though, for the Biden Administration when they come around seeking support from the immigration/human rights/civil rights communities for the next election!
The GOP treats the immigration advocacy community with consistent contempt. With Dems, the contempt is also pretty consistent — but with an exception every fourth year during Presidential campaigns.
Reincarnated @ EOIR? — Creative Commons LicenseDeep Throat — Well, there used to be theaters below the EOIR HQ Tower @ Falls Church, but I don’t think they ever showed this feature film. Is “DT” a girl, a boy, a man, a woman, a group, or something else? We’ll never know! The “Adults Only” tag is a reminder that “adult supervision” remains missing @ the EOIR Clown Show. And, apparently, Judge Garland has no intention of providing it! — Creative Commons License
Courtside Exclusive
By Paul Wickham Schmidt
May 4, 2021
Recently, some of America’s top legal minds were “wordsmithing” their “practical scholarly” advice on what actions Judge Garland should take to begin straightening out his EOIR mess. Common sense steps to slash the largely self-created Immigration Court backlog of an astounding 1.3 million cases actually could and should have been taken within hours of Garland’s swearing in as Attorney General. But, unknown to these experts, the battle they steadfastly had been fighting for the past four years in behalf of due process, common sense, and humanity in a broken system already was lost.
Basically, Garland and his team had secretly delivered the “big middle finger” to progressives earnestly seeking to assist and guide them in the right direction on long overdue reforms at Garland’s incredibly backlogged, totally dysfunctional, anti-due-process, Immigration “Courts” that don’t fit any known American definition of “court.” For while the wheels of scholarly, problem-solving brainpower were grinding away, Garland had cavalierly and clandestinely handed out 17 of the most important (and certainly most readily available to progressive judicial candidates) Federal Judicial positions to unqualified insiders and prosecutors basically “in the Stephen Miller White Nationalist pipeline.” Adding insult to injury, Garland and his lieutenants covered up their disgraceful actions. But, thanks to a reincarnated “Deep Throat” @ EOIR (see, Watergate for newer generations), we now know the truth.
According to “Deep Throat 2021,” (“DT-21”) it’s worse than I previously thought about Immigration Judge appointments. (And, I thought it was bad.) Garland actually secretly appointed 17 new IJs in April, but EOIR hasn’t released the names publicly because they (rightly) fear “the blowback” from Dems and progressives.
So, who is Team Garland” trying to please? “Gauleiter” Stephen Miller? “Billy the Bigot” Barr? Gene Hamilton? Donald Trump? Jeff “Gonzo Apocalypto” Sessions? Chad “Wolfman” Wolf? Ken “Cooch Cooch” Cuccinelli? “Teddy the Traitor” Cruz? Tom “Blacks & Hispanics Should be Pickin’” Cotton?
The 17 include some for the VTC black box “court” in Richmond. The only one that went public was a story a judge himself placed. That’s apparently the one that Dan Kowalski and I picked up. According to sources, none of Garland’s new judges are good for due process or for progressive, expert, independent judging.
Also, there’s a rumor that the open BIA position is going to go to an “EOIR insider,” not someone from the outside who could help restore due process and fundamental fairness.
Let’s see, so far the Biden Administration has had exactly zero progressive Federal Judges confirmed by the Senate. Meanwhile, over at DOJ, Garland has handed out these 17 powerful judgeships with life or death authority serving on the front lines of racial justice in America to non-progressives apparently recommended and tapped by his restrictionist predecessor.
Make sense? Only if you’ve watched past Dem Administrations’ inept handling of the Immigration Courts.
In positive news, there’s “internal chatter” that EOIR Deputy Director Carl C. Risch, a political hack “burrower” from the Trump Administration, is leaving EOIR.
But, “DT-21” is still gravely concerned that “Millerite” BIA Chair David Wetmore (Maury Roberts must be turning over in his grave) has yet to be removed with his “probationary period” set to expire at the end of this month. What, exactly, have been Wetmore’s contributions to human rights scholarship, “applied due process,” fundamental fairness, racial justice, and fair treatment of female asylum seekers that justify his continued tenure as essentially the “Chief Justice of Immigration?”
Garland’s malfeasance at EOIR is not just disappointing, but totally outrageous! On Tuesday, he disingenuously asked the House for more money to promote civil rights while running Star Chambers of institutionalized racism that are undermining the American justice system at the critical “retail level.”
“Civil Rights” in Garland’s Star Chambers have a peculiar meaning! — Creative Commons License
Those advocates who almost single handedly kept the American justice system afloat by successfully challenging many of the unconstitutional racist actions of the Trump immigration kakistocracy once again find themselves “on the outside looking in.” Meanwhile, Judge Garland, who was hiding out above the fray @ the DC Circuit, treats them as “chopped liver” while continuing White Nationalist, anti-due-process policies and precedents initiated by Trump and his cronies.
How out of touch is Garland’s proposal to the House yesterday to address the Immigration Court backlog by casting 100 new Immigration Judges into this mess? (Presumably, these positions will be handed out “like candy” to more non-expert, non-diverse, non-due-process oriented insiders and former government prosecutors.) Well, even with many more Immigration Judges on the bench (more than twice as many as at the end of the Obama Administration), it’s been about two decades since EOIR has decided more cases than it has docketed! That’s how “Aimless Docket Reshuffling” by DOJ politicos and EOIR bureaucrats builds uncontrollable backlogs!
Assume the highly unlikely, that under Garland, without any more quotas, corner cutting, or other anti-due-process gimmicks, the existing nearly 600 judges could keep “even” with new filings. Then, once selected, trained, and on duty (a process that took the Obama Administration an astounding average of two years), “Garland’s 100 new judges” could devote themselves to “backlog reduction.” At the DOJ’s quota of 700 cases per judge, the new judges could decide 70,000 cases per year. At that rate, it would take them approximately two decades (or five 4-year Administrations) to “wipe out” the backlog.
Sound like a plan? Only if you don’t understand the fundamental, endemic problems plaguing EOIR and have no “real life experience” representing individuals whose hopes, lives, and futures are being ground to dust by EOIR malfeasance on a daily basis!
Folks, this has to stop! Keep pressing those constitutional arguments that eventually will bring Garland’s corrupt, dysfunctional system to a screeching halt. And keep pushing for legislation to take this ungodly mess out of the DOJ. Also, keep reminding President Biden who helped get out the vote and get him his job. And, where is our African/Asian American/daughter of immigrants Vice President while this outrage at “Justice” is playing out?
How do supposedly progressive women legal luminaries like Lisa Monaco and Vanita Gupta justify their role in Garland’s misogynist, due process farce @ EOIR?
“She struggled madly in the torturing Ray” — Lisa Monaco & Vanita Gupta have wandered into a strange vision of “justice” for refugee women of color @ “Justice!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
As for “DT-21,” he/she/them remains as enigmatic, unverifiable, unabashed, and unafraid as ever! This is a 21st Century “patriot” tired of the abuse of due process, racism, incompetence, and misogyny that EOIR has fostered over Administrations of both parties. EOIR under Garland is a progressive’s continuing nightmare!
Does “DT-21” lurk in the shadows of a parking garage, beyond the view of security cameras, as did the famous 1970’s namesake? Or, at the outskirts of an interstate rest area? Perhaps in a dark unwatched corner of an overcrowded Zoom chat room?
And, while you’re at it, say a prayer for Linda Lovelace (1949-2002), the original “Deep Throat” (1972), who later said she was an abused spouse coerced into a career as an adult actress that she eventually rejected. Somehow, there is a tie-in between Lovelace’s exploitation in the 1970s and the systemic mistreatment of asylum seeking domestic violence victims that went into high gear during the Trump regime and continues unabated under Garland! Interestingly, before her untimely death in 2002, Lovelace became an anti-porn activist who testified before the Attorney General’s Commission on Pornography (a/k/a “The Meese Commission”) in 1986.
Stay tuned for more “truth from the Tower.” You certainly won’t get it from “Team Garland.”
April 30, 2021
The Honorable Merrick B. Garland Attorney General of the United States U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530-0001
RE: U.S. Department of Justice Authority to Remove Non-Priority Cases from the Active Docket of the Nation’s Immigration Courts
To Attorney General Garland:
As immigration law teachers and scholars, we write to express our opinion on the scope of executive branch legal authority for the Executive Office for Immigration Review (EOIR) to utilize well-established administrative tools to address the historic backlog of cases pending in immigration courts. Each case in the backlog involves an immigrant, many waiting for years to have a “day in court” to defend against charges of removability or to have an application for relief adjudicated. The Attorney General, through EOIR, has the authority to address the immigration court backlog by rapidly and systemically removing nonpriority cases from the active docket.1
For years, the immigration court docket remained relatively steady, hovering between 100,000 and 200,000 cases.2 During the Obama administration, however, the system began to accumulate a substantial backlog, eventually rising to over 500,000 cases.3 These numbers continued to spike during the Trump administration. Currently, the immigration court backlog sits at 1.3 million cases,4 which Lisa Monaco, President Biden’s nominee for Deputy Attorney General, has acknowledged is a “direct impediment to a fair and effective system.”5 Addressing the immigration court backlog is critical to restoring the integrity of the immigration court system.
As a consequence of the immigration court backlog, the average wait time for respondents’ next immigration court hearing, measured from the time a case entered the immigration court docket, is now over 1,600 days.6 Less than 50% of all cases now pending in the immigration backlog are even set for an individual merits hearing, which means many cases will require subsequent hearings, resulting in additional delay.7 This backlog impedes the proper functioning of the immigration court system and its ability to dispense justice. It also undermines core administrative law values that include but are not limited to consistency, efficiency, public acceptability, and transparency.
The immigration backlog also impacts immigration judges, who face crushing caseloads, now approaching 3,000 cases per judge.8 Such caseloads undermine the ability of immigration judges to reliably and competently complete the complex legal analysis and careful credibility and discretionary determinations that removal cases demand.9 The backlog also harms immigrants, who face years of legal limbo while their cases are pending. This legal limbo can be destabilizing to families and communities and delay immigrants’ access to the legal status many are ultimately granted.
AILA Doc. No. 21050334. (Posted 5/3/21)
The Attorney General has the legal authority to create a more functional and fair immigration court system, using existing tools of discretion and deferred adjudication. Specifically, the EOIR has the authority under regulations to identify and defer the adjudication of nonpriority cases. The EOIR Director has clear authority to defer adjudication of cases pursuant to 8 C.F.R. § 1003.0(b)(1)(ii). Specifically, the Director has the “power, in his discretion, to set priorities or time frames for the resolution of cases [and] to direct that the adjudication of certain cases be deferred…”10 Further, the Director has the authority to “issue operational instructions on policy” pursuant to 8 C.F.R. § 1003.0(b)(1). The Attorney General also has broad discretionary authority pursuant to 8 U.S.C. § 1103(g) to “issue such instructions, . . . delegate such authority, and perform such other acts as the Attorney General determines to be necessary” for the administration of the nation’s immigration courts.11
The use of deferral authority is not merely theoretical. Systemwide deferrals have recently been implemented by EOIR leadership through policy memorandum.12 Deferral acts as a pause in adjudication, akin to the historic use of the status docket, as opposed to a final resolution.13 Indeed, the deferral mechanism can be used as an alternative to the status docket, grounded more firmly in the regulatory scheme, or in tandem, such that deferred cases are placed on the status docket to free up capacity for priority cases. At a future point in time, deferred cases could be recalendared when a determination is made as to the appropriate path to final resolution.14 Based on current agency authority, termination, generally requires a legal deficiency;15 dismissal, generally requires a motion from DHS;16 and administrative closure, is severely constrained.17 However, deferral power remains available as a mechanism that EOIR leadership can independently and immediately deploy at its discretion. Removing nonpriority cases from the immigration courts’ active docket will substantially improve the functioning of the courts and shrink the proverbial haystack, thereby allowing immigration judges to fairly and expeditiously adjudicate priority cases.
Less than one percent of the cases in the EOIR backlog satisfy the Biden administration’s current enforcement priorities.18 Accordingly, consistent with the administration’s own priorities, EOIR could exercise its discretion to defer nonpriority immigration cases. As a first step, EOIR could establish categories of nonpriority cases that can be identified and deferred at a headquarters level without the need for a case-by-case file review.19 This is the path recently recommended by a group of United States Senators and over 150 leading immigration, civil rights, and human rights organizations.20 These Senators and organizations have proposed specific categories of such nonpriority cases that could be systematically identified through existing EOIR data, including: cases that have been pending for more than five years and cases that involve respondents who have potential affirmative pathways to status, such as applications for adjustment of status or new asylum claims, that could be adjudicated by the USCIS.21 These are non-exhaustive examples of the types of nonpriority cases that could be systematically identified and deferred. EOIR should explore these and other similarly identifiable nonpriority categories.
This letter outlines the legal foundation and method by which the Attorney General can restore the fairness and integrity of the nation’s immigration courts. The legal authority, under the existing statutory and regulatory framework, to remove nonpriority cases from the active docket of the immigration courts is clear. Thank you for your attention. For any follow up inquiries, please contact Professor Peter L. Markowitz at peter.marowitz@yu.edu or at 646-592-6537. _____________________________________________________________________________
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AILA Doc. No. 21050334. (Posted 5/3/21)
1 While this letter focuses on EOIR’s authority to manage the court docket, we do not mean to suggest that the Department of Homeland Security (DHS) does not play an important corresponding role in establishing enforcement policies and priorities for the initiation and resolution of proceedings. In fact, DHS has exclusive authority to decide whether to institute proceedings, see Matter of W-Y-U-, 27 I. & N. Dec. 17, 19 (BIA 2017) and, as noted infra note 21, DHS’s discretion to dismiss removal proceedings could also play a critical role in permanently removing nonpriority cases from the immigration court docket.
2 TRAC Immigration, Backlog of Pending Cases in Immigration Courts (data through Feb. 2021), https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.
3 Id.
4 Id.
5 The Nomination of the Honorable Lisa Oudens Monaco to be Deputy Attorney General Before the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Hon. Lisa Oudens Monaco).
6 TRAC Immigration, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts (data through Feb. 2021) [hereinafter “TRAC, The State of the Immigration Courts”], https://trac.syr.edu/immigration/reports/637/#f1.9.
7 Id.
8 According to EOIR, there are approximately 466 immigration judges nationwide sharing the 1.3 million cases. EOIR, Adjudication Statistics, Immigration Judge (IJ) Hiring (Jan. 2020), https://www.justice.gov/eoir/page/file/1104846/download. However, an unknown number of these judges serve in an administrative capacity and thus do not carry a docket of their own. TRAC Immigration, Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times (data through Oct. 25, 2019), https://trac.syr.edu/immigration/reports/579/. The crushing caseloads are driving many experienced immigration judges to leave EOIR, further exacerbating the backlog. Amulya Shankar, Why US Immigration Judges Are Leaving the Bench In Record Numbers, THE WORLD (July 20, 2020), https://www.pri.org/stories/2020-07-20/why-us- immigration-judges-are-leaving-bench-record-numbers (interview with former Immigration Judge Ashley Tabaddor, then president of the National Association of Immigration Judges).
9 See Quinteros v. Att’y Gen. of United States, 945 F.3d 772, 794 (3d Cir. 2019) (McKee, J. concurring) (acknowledging the “incredible caseload foisted upon [immigration courts]” and how immigration judges being “horrendously overworked” contributes to the denial of fair and impartial hearings); Chavarria-Reyes v. Lynch, 845 F.3d 275, 280 (7th Cir. 2016) (J., Posner dissenting) (noting how “crushing workloads” cause immigration judges to routinely “botch” cases); United States Government Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges 30-1 (June 2017), https://www.gao.gov/assets/gao-17-438.pdf (reporting that increased caseloads have prevented immigration judges from “conduct[ing] administrative tasks, such as case-related legal research or staying updated on changes to immigration law”); see also Julia Preston, Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle, N.Y. TIMES (Dec. 1, 2016), www.nytimes.com/2016/12/01/us/deluged-immigration-courts-where-cases- stall-for-years-begin-to-buckle.html?_r=0.
10 8 C.F.R. § 1003.0(b)(1)(ii). This management authority can also be exercised by the Chairman of the Board of Immigration Appeals (BIA) and the Chief Immigration Judge. 8 C.F.R. §§ 1003.1(a)(2)(i)(C), 1003.9(b)(3) (identifying the similar subordinate authority of the Chairman of the BIA and the Chief Immigration Judge).
11 See also, 8 U.S.C. § 1103(a)(1) (reserving to the Attorney General certain powers related to the “administration and enforcement of . . . laws relating to the immigration and naturalization of aliens”); 6 U.S.C. § 521(“[T]he Executive Office for Immigration Review . . . shall be subject to the direction and regulation of the Attorney General”).
12 See e.g., EOIR, Policy Memorandum: Immigration Court Practices During The Declared National Emergency Concerning the COVID-19 Outbreak, PM 20-10, fn.2 (Mar. 18, 2020), available at https://www.justice.gov/eoir/file/1259226/download (deferring all non-detained cases at the outset of the pandemic for a limited period of time); EOIR, Notice: Executive Office for Immigration Review Operation During Lapse in Government Funding (Oct. 1, 2013), available at https://www.justice.gov/eoir/legacy/2013/10/24/Shutdown09302013.pdf (deferring all non-detained cases during government shutdown).
13 See Memorandum from EOIR Director James R. McHenry III, EOIR Policy for Use of Status Dockets in Immigration Court Proceedings (Aug. 16, 2019), https://www.justice.gov/eoir/page/file/1196336/download (explaining how “[v]arious types of status dockets under different labels have existed at individual immigration
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courts for many years”). While the McHenry Memorandum established historically narrow criteria for use of the status docket, the parameters for such use have been subject to change as a matter of administration policy. Id.
14 Such eventual pathways may include later individualized determinations to administratively close or dismiss cases or to return them to the active docket, once capacity exists, for full adjudication. Notably, while individuals await final resolution, a deferral order, like administrative closure, would neither confer nor disturb respondents’ entitlement to work authorization.
15 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465-67 (A.G. 2018). But see, e.g., 8 C.F.R. § 214.14(c)(1)(i) (providing for termination pursuant to joint motion for adjudication of a U visa); 8 C.F.R. § 1245.13(l) (providing for termination upon the of adjustment of status to certain Cubans and Nicaraguans); 8 C.F.R. § 1239.2(f) (providing for termination to pursue naturalization in certain circumstances).
16 8 C.F.R. § 239.2(c); 8 C.F.R. § 1239.2(c); see also Matter of S-O-G- & F-D-B-, 27 I&N Dec. at 466.
17 8 C.F.R. § 1003.10(b); see also Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). Ultimately, EOIR should individually evaluate all pending cases to determine whether they meet the administration’s priorities. To achieve this, the Attorney General should also ensure that immigration judges have the ability to prioritize their cases and “exercise their independent judgment and discretion.” 8 C.F.R. § 1003.10(b). Indeed, you were clear in your confirmation hearing that the solution to the immigration court backlog must include “some ability to give to the judges to prioritize their cases.” The Nomination of the Honorable Merrick Brian Garland to be Attorney General of the United States: Day 1 Before the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Hon. Merrick B. Garland). The primary tool used by immigration judges to remove cases from the active docket has historically been “administrative closure.” However, this authority was recently and imprudently curtailed, such that § 1003.10(b) now divests judges of administrative closure authority. See also Matter of Castro-Tum, supra. You can reaffirm and restore the authority for all immigration judges to administratively close nonpriority cases on a case-by-case basis. We express no opinion herein on the merits of current agency precedent regarding termination or dismissal but note that such precedent is subject to your review and could potentially be expanded in the future.
18 There are currently three enforcement priorities: (1) people suspected of engaging in terrorism or who pose a national security threat; (2) people apprehended at the border after November 1, 2020; and (3) people deemed to be a public safety threat, which includes primarily certain individuals with aggravated felony convictions. Memorandum from ICE Acting Director Tae Johnson, Interim Guidance: Civil Enforcement and Removal Guidance (Feb. 18, 2021), https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim- guidance.pdf. Out of the 1.3 million people with cases pending in immigration court right now: less than 100 have any type of terrorism or national security charge, virtually all had cases initiated before November 1, 2020, and less than 0.01% involve aggravated felony charges. TRAC, The State of the Immigration Courts, supra note 6. There is no publicly available data on the number of cases that would fall within the new narrowed gang-based public safety priority group, but it is doubtful this category would substantially increase the percentage of priority cases since less than 0.01% of all cases involve any type of criminal removal ground.
19 While it is critical that such cases can be systematically identified this does not mean that consideration of individualized circumstances is foreclosed. Notices of intent to defer could permit respondents to lodge objections if they would be prejudiced by deferral and DHS attorneys to object if it believes a respondent’s case is not appropriate for deferral. Indeed, deferral could act to facilitate individualized prosecutorial discretion determinations, if DHS coordinates to consider whether deferred cases are appropriate for dismissal, and if affirmative applications in deferred cases are ultimately processed by U.S. Citizenship and Immigration Services (USCIS).
20 Letter from Eight U.S. Senators to Attorney General Garland (Mar. 23, 2021), https://www.aila.org/File/DownloadEmbeddedFile/88403; Letter from 165 Organizations to President Biden (Feb. 1, 2021), https://www.aila.org/advo-media/aila-correspondence/2021/aila-and-partners-send-letter-to-president-biden. 21 For the affirmative pathway to ultimately be realized, in most instances, the removal proceedings will eventually need to be dismissed or terminated. In this regard, DOJ should coordinate its docket review effort with DHS. DHS has the authority to move to dismiss such cases, and immigration judges have the authority to dismiss such cases, because the notice to appear was “improvidently issued” or continuation is “no longer in the best interest of the government.” 8 C.F.R. § 239.2(c) (permitting DHS to move to dismiss any case where the notice to appear was “improvidently issued” or where “continuation is no longer in the best interest of the government” (incorporating grounds enumerated in 8 C.F.R. § 239.2(a))); 8 C.F.R. § 1239.2 (same); see also Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. at 464 (reaffirming DHS authority to move to dismiss on such bases). Indeed, DHS has previously made clear that when relief is “appropriate for adjudication by [US]CIS” DHS attorneys “should consider moving to dismiss proceedings.” Memorandum from William J. Howard, U.S. Immigration and Customs Enforcement, Principle Legal Advisor, Prosecutorial Discretion, (Oct. 24, 2005), AILA Doc. No. 06050511.
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AILA Doc. No. 21050334. (Posted 5/3/21)
Cori Alonso-Yoder
Visiting Professor of Law & Director of the Federal Legislation Clinic Georgetown University Law Center
Jojo Annobil Adjunct Professor NYU School of law
Lauren Aronson
Associate Clinical Professor, Director Immigration Law Clinic University of Illinois, Champaign/Urbana
David Baluarte
Associate Dean for Academic Affairs Washington and Lee University School of Law
Jon Bauer
Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law
David Bedingfield
Visiting Professor Florida State University College of Law Florida State University
Lenni Benson
Distinguish Professor of Immigration and Human Rights Law New York Law School
Kaci Bishop
Clinical Professor of Law
The University of North Carolina School of Law
Linda Bosniak Distinguished Professor Rutgers Law School
Stella Burch Elias
Professor of Law
University of Iowa College of Law
Jason Cade
Associate Dean for Clinical Programs and Experiential Learning J. Alton Hosch Associate Professor of Law
Director, Community Health Law Partnership Clinic
University of Georgia School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)
Kristina Campbell
Professor of Law
UDC David A Clarke School of Law
Stacy Caplow Professor of Law Brooklyn Law School
Violeta Chapin
Clinical Professor of Law University of Colorado Law School
Michael Churgin
Raybournee Thompson Centennial Professor in Law University of Texas at Austin
Julie Dahlstrom
Clinical Associate Professor Boston University School of Law
Alina Das
Professor of Clinical Law
New York University School of Law
Ingrid Eagly Professor of Law UCLA School of Law
Bram Elias
Clinical Professor
University of Iowa College of Law
Kate Evans
Clinical Professor of Law
Duke University School of Law
Jill Family
Commonwealth Professor of Law and Government Widener University Commonwealth Law School
Paula Galowitz
Clinical Professor of Law Emerita New York University School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)
Denise Gilman
Director, Immigration Clinic University of Texas School of Law
Lindsay Harris
Associate Professor,
Director, Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law
Laura Hernandez Professor of Law Baylor Law School
Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law
Geoffrey Hoffman
Director, Immigration Clinic University of Houston Law Center
Alan Hyde Distinguished Professor Rutgers Law School
Anil Kalhan
Professor of Law
Drexel University Kline School of Law
Kathleen Kim
Associate Dean and Professor of Law LMU Loyola Law School, Los Angeles
Jennifer Koh
Visiting Lecturer
University of Washington School of Law
Yoana Kuzmova
Staff Attorney Northeast Justice Center
Eunice Lee
Associate Professor of Law
University of Arizona James E. Rogers College of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)
Lynn Marcus
Clinical Law Professor
Director, Community Immigration Law Placement Clinic University of Arizona James E. Rogers College of Law
Peter L. Markowitz
Professor of Law
Benjamin N. Cardozo School of Law
Fatma Marouf
Professor of Law
Texas A&M School of Law
Amelia McGowan
Adjunct Professor, Immigration Clinic Mississippi College School of Law
M Isabel
Medina Ferris Distinguished Professor of Law Loyola University New Orleans College of Law
Jennifer Moore
Professor of Law and Pamela Minzner Chair in Professionalism University of New Mexico School of Law
Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Director, Immigrants’ Rights Clinic Columbia Law School
Raquel Muñiz Assistant Professor Boston College
Natalie Nanasi
Assistant Professor
SMU Dedman School of Law
Lindsay Nash
Clinical Assistant Professor of Law Benjamin N. Cardozo School of Law
Lori Nessel
Professor of Law
Seton Hall University School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)
Mauricio Noroña
Clinical Teaching Fellow
Benjamin N. Cardozo School of Law
Michael A. Olivas
Wm B. Bates Distinguished Chair (Emeritus) University of Houston Law Center
Maria Pabon
Professor of Law Loyola College of Law
John Palmer
Professor Agregat Interí Universitat Pompeu Fabra
Reena Parikh
Assistant Clinical Professor Boston College Law School
Helen Parsonage
Adjunct Professor of Immigration Law Wake Forest University School of Law
Sarah Plastino
Adjunct Professor of Law
University of Denver, Sturm College of Law
Anam Rahman
Adjunct Professor of Law Georgetown University Law Center
Jaya Ramji-Nogales Professor of Law Temple Law School
Shruti Rana
Assistant Dean & Professor
Hamilton Lugar School of Global & International Studies Indiana University Bloomington
Victor Romero
Professor of Law
Penn State Law, University Park
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Rachel Rosenbloom
Professor of Law
Northeastern University School of Law
Kevin Ruser
Richard and Margaret Larson Professor of Law M.S. Hevelone Professor of Law
Director of Clinical Programs
University of Nebraska College of Law
Mario Russell
Adjunct Professor of Law
St John’s University, School of Law
Faiza Sayed
Visiting Professor of Clinical Law Brooklyn Law School
Andrew Schoenholtz
Professor from Practice Georgetown University Law Center
Erica Schommer
Clinical Professor of Law
St. Mary’s University School of Law
Kim Thuy Seelinger
Visiting Professor
Washington University School of Law
Rebecca Sharpless
Professor of Law
University of Miami School of Law
Anna Shavers
Cline Williams Professor of Citizenship Law Associate Dean for Diversity and Inclusion University of Nebraska College of Law
Gemma Solimene
Clinical Associate Professor of Law Fordham University School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)
Jayashri Srikantiah
Associate Dean for Clinical Education Director, Immigrants’ Rights Clinic Stanford Law School
Elissa Steglich
Clinical Professor
University of Texas School of Law
Mark Steiner
Professor of Law
South Texas College of Law Houston
Maureen Sweeney
Law School Professor
University of Maryland Carey School of Law
Margaret Taylor
Professor of Law
Wake Forest University School of Law
Claire Thomas Director, Asylum Clinic New York Law School
David Thronson
Alan S. Zekelman Professor of International Human Rights Law Michigan State University College of Law
Emily Torstveit Ngara
Assistant Clinical Professor of Law Georgia State University College of Law
Enid Trucios-Haynes
Professor of Law
Brandeis School of Law, University of Louisville
Diane Uchimiya
Director of Clinical Programs Creighton University School of Law
Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law in Access to Justice UC Berkeley School of Law
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Shoba Sivaprasad Wadhia
Associate Dean for Diversity, Equity, and Inclusion
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law, University Park
Jonathan Weinberg
Professor of Law and Associate Dean for Research Wayne State University
Anna Welch
Clinical Professor
University of Maine School of Law
Michael Wishnie
William O. Douglas Clinical Professor of Law Yale Law School
Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University
Elliott Young Professor of History Lewis & Clark College
cc: Susan Rice, White House
Esther Olavarria, White House
Tyler Moran, White House
Matt Clapper, DOJ
Margy O’Herron, DOJ
Jean King, EOIR
Secretary Alejandro Mayorkas, DHS Angie Kelley, DHS
Kamal Essaheb, DHS
David Shahoulian, DHS
Tom Jawetz, DHS
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AILA Doc. No. 21050334. (Posted 5/3/21)
*****************************
All the familiar problems that have plagued the DOJ under past Dem Administrations and helped create the due process and human rights disaster in today’s dysfunctional Immigration “Courts,” that aren’t “courts” at all as operated by Judge Garland, are on display here!
First, I know that I’m not the only person who made this or a similar recommendation to the Biden Transition Team. So, 100 days in, why are we still writing letters while those supposedly “in charge” dawdle over common sense “day one stuff” that would dramatically improve the delivery of justice in America?
Second, the “sign on” list here looks like a “who’s who” of the practical experts who should be running EOIR, comprising the entire BIA, and filling vacant Immigration Judge positions! That they are writing letters from the “outside” rather than running the system from “the inside” shows dramatically why Judge Garland is on a course for failure at DOJ — a failure that American democracy can’t afford!
To date, to my knowledge, Judge Garland has made only one Immigraton Judge appointment — a white, male former prosecutor with no prior immigration, human rights, or judicial experience! In other words, same old, same old ignorant devaluing of Immigration Judge positions and the power they hold over human lives and the future of our nation. When will they ever learn?
The irony or ironies — in all of history, there has been only one Attorney General to recognize the true power and potential of the Immigration Judiciary — for good or evil — and act accordingly. Unfortunately, that happened to be White Nationalist, misogynist, xenophobic, racist Jeff “Gonzo Apocalypto” Sessions! Why is he effectively “still in charge” under Judge Garland and an Administration that ran on a platform of fair and just treatment of asylum seekers and other migrants?
Letters are nice — but they are no substitute for action to solve festering problems!
Who REALLY ‘runs” our disgraceful and dysfunctional Immigration “Courts”
This guy?
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Or, this guy?
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm
I personally don’t make much of Scott’s ability to reason. This is the same man who said in March that “woke supremacy,” whatever that is, “is as bad as white supremacy.” There is no world in which recent efforts at enlightenment can be equated to enslavement, lynching and mass incarceration. None.
It seems to me that the disingenuousness on the question of racism is largely a question of language. The question turns on another question: “What, to you, is America?” Is America the people who now inhabit the land, divorced from its systems and its history? Or, is the meaning of America inclusive of those systems and history?
When people say that America is a racist country, they don’t necessarily mean that all or even most Americans are consciously racist. However, it is important to remember that nearly half the country just voted for a full-on racist in Donald Trump, and they did so by either denying his racism, becoming apologists for it, or applauding it. What do you call a country thus composed?
Historically, however, there is no question that the country was founded by racists and white supremacists, and that much of the early wealth of this country was built on the backs of enslaved Africans, and much of the early expansion came at the expense of the massacre of the land’s Indigenous people and broken treaties with them.
Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873
Eight of the first 10 presidents personally enslaved Africans. In 1856, the chief justice of the United States wrote in the infamous ruling on the Dred Scott case that Black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”
The country went on to fight a Civil War over whether some states could maintain slavery as they wished. Even some of the people arguing for, and fighting for, an end to slavery had expressed their white supremacist beliefs.
Abraham Lincoln said during his famous debates against Stephen A. Douglas in 1858 that among white people and Black ones “there must be the position of superior and inferior, and I, as much as any other man, am in favor of the superior position being assigned to the white man.”
Some will concede the historical point and insist on the progress point, arguing that was then and this is now, that racism simply doesn’t exist now as it did then. I would agree. American racism has evolved and become less blunt, but it has not become less effective. The knife has simply been sharpened. Now systems do the work that once required the overt actions of masses of individual racists.
. . . .
As Mark Twain once put it: “The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.”
Being imprecise or undecided with our language on this subject contributes to the murkiness — and to the myth that the question of whether America is racist is difficult to answer and therefore the subject of genuine debate among honest intellectuals.
Saying that America is racist is not a radical statement. If that requires a longer explanation or definition, so be it. The fact, in the end, is not altered.
***************
Read Blow’s full article at the link.
Four things that are clear to me:
The “history” that most of us in my generation learned in high school was “whitewashed;”
The monumental achievements of non-white Americans, women, and children which allowed this country to exist, prosper, and flourish have consistently been ignored or downplayed;
America still has race issues;
The GOP, in particular, has failed to come to grips with the issue of race in 21st century America (apologists Scott & Graham notwithstanding).
🇺🇸⚖️🗽Due Process For All Persons Under Law, Forever!
“Reading the broad language of §§ 1003.10(b) and 1240.1(a)(1)(iv), we conclude that these regulations give the IJ the Attorney General’s discretionary authority to grant a § 1182(d)(3)(A)(ii) waiver. … [W]e grant the petition, vacate the BIA’s final removal order, and remand for further proceedings consistent with this opinion.”
Seldom has a supposed quasi-judicial tribunal worked as hard as the current BIA to find limits on its ability to solve legal and humanitarian problems. That leaves the work to the Circuits, as in this case.
So, why have EOIR at all? The system clearly is unconstitutional because it lacks fair and impartial adjudicators and even minimally competent administration of due process. If Garland, Monaco, and Gupta have no interest in fixing these glaring problems, then why not just transfer EOIR’s functions to the U.S. District Courts and U.S. Magistrate Judges under the supervision of the Courts of Appeals?
Dems talk big about the need for a more progressive Federal Judiciary to achieve racial justice. But, given the chance actually to create one, they sit on their hands!
Not so the GOP! Restrictionists, nativists, reactionaries and White Nationalists recognize the repressive power of a captive and co-opted Immigration Judiciary and act accordingly. “Act” — that’s the operative word that doesn’t appear to be in the Dem’s vocabulary when it comes to building a better Federal Judiciary for a better America.
Progressives might initially have cheered the appointment of these three to top leadership posts @ the DOJ. But, to date, they have shown no interest in rescinding Stephen Miller’s White Nationalist immigration policies or replacing Miller’s nativist judges with progressive expert judges @ EOIR.
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public RealmLisa Monaco Deputy AG Official USG Photo, Public RealmVanita Gupta Associate Attorney General Photo: Brookings Institution, Paul Morigi, Creative Commons License.
Grundoon From Walt Kelly’s “Pogo” SOURCE: Pininterest
Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]
In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13. In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1 In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.” The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum. In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.
The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General. Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:
Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.
Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.
The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2
The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.” Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?
As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees. Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval. In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts. I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.
Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3 The indictment was filed in December, 2020, while the Trump Administration was still in office. The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).
The indictment contains a specific section titled “Political Influence in El Salvador.” The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.” It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence. The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.” According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits. The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”
The indictment also contains a section explaining the purpose of the Ranfla Nacional. The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”
The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice. They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law. In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.” Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.
So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature? And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments? Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.
In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:
immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4
This matter deserves the immediate attention of Attorney General Merrick Garland. The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death. At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).
APRIL 29, 2021
Reprinted by permission.
*************
As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties” with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.
At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!
Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.
Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!
A few historical notes:
I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.
Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in!
Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) By Pieter Bruegel The Elder Public Domain
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During the Trump administration, Alison Peck started to see more of her cases have an outcome she describes as “a door just slammed” in the clients’ faces. A law professor and co-director of the Immigration Law Clinic at West Virginia University College of Law, Peck grew concerned that paths to immigration relief previously available to them were no longer an option. The explanation for it was an increasingly common practice whereby the US Attorney General, who is a political appointee, would self-refer cases previously decided by an immigration judge and then use them as vehicles for broad policy changes. These precedent-setting determinations included restricting asylum for victims of domestic violence and gang violence, and limiting immigration judges’ power to manage their dockets by temporarily closing low-priority cases. Some of Peck’s clients were impacted by both decisions. “It was very distressing to see this happen and have to tell people midway through the game that the rules had been changed,” she says. Hence, the experience of the door slammed shut.
Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency. “It didn’t make sense to me, and it didn’t fit with anything I knew about administrative law theory,” she says. So Peck decided to look for an explanation for how this anomalous system had been set up in the first place, and what rationale, if any, sustained it despite a general consensus that the existing structure is nothing if not broken.
Peck shares her findings in the upcoming book The Accidental History of the US Immigration Courts: War, Fear, and the Roots of Dysfunction, a revealing account of how wartime paranoia and xenophobia shaped a system that has been with us for over 80 years. “As long as the immigration courts remain under the authority of the Attorney General, the administration of immigration justice will remain a game of political football—with people’s lives on the line,” Peck writes. I called Peck to discuss what World War II and Nazi Germany have to do with modern-day US immigration courts, and how Congress can fix an “irrationally constructed” system.
You trace the origins of the architecture of immigration courts back to two pivotal moments. The first is 1940, when President Franklin D. Roosevelt moved the immigration services from the Department of Labor into the Department of Justice. How did that come about?
Immigration services had long been treated as kind of a stepchild within the Department of Labor. With the New Deal and the labor strife throughout the 20s and into the 1930s, the Secretary of Labor had the obligation to deal fairly and impartially with union leaders, many of whom were immigrants, but then also had the responsibility of investigating and deporting immigrants who were in the country unlawfully. That tension started to become pretty extreme. Francis Perkins, the Secretary of Labor at the time, ended up being in the political crosshairs in part because of her handling of immigration cases. She was in favor of immigration being moved out of the Department of Labor, but she didn’t think it was very appropriate to have it in the Department of Justice because it shouldn’t be associated with crime and law enforcement.
In fact, Roosevelt had resisted members of Congress and the public for over a year. He had lawyers in the DOJ study the issue, and they sent him a report concluding that moving the immigration services into the DOJ would be inappropriate and could change the understanding of immigration for the country. His attorney general at the time, Robert H. Jackson—who later became a Supreme Court justice and also presided at the Nuremberg trials—advised him against it, calling for a sort of temporary wartime agency that dealt with the threat of sabotage, rather than setting up a system that invites an entry of politics into immigration cases. So it’s not as if Roosevelt and his advisers didn’t understand the risks of what they were doing. They did, and they resisted it for some time. But because of the fear and the nature of the threat and things that they just couldn’t have known at the time, they decided, for lack of any better option, that they would do this.
At the time, the Roosevelt administration justified the move as a necessary response to a national security threat. How exactly did the war in Europe ultimately influence his decision?
In 1939, much of Congress was still pretty isolationist, and there was a lot of skepticism about Roosevelt’s willingness to get involved in the war and make the United States a leading force. The occupation of Denmark by the Nazis in April 1940 was really a game changer. The isolationism of the United States up until that point was based on this notion that we’re an ocean apart and protected by geography—what happens in Europe can’t affect us directly. But Denmark had possession of Greenland, so the Nazis had a base in North America where they could refuel, restock, and plan attacks from there.
By that time, the State Department and the FBI were both actively tracking what they saw as the “Fifth Column” threat: this idea that foreign nationals might be plotting to take over from within the country without anyone ever knowing what happened. When the invasion of France and the Low Countries occurred in May [1940], many people assumed that this must have been because people in high level positions within these countries were simply raising the drawbridge and letting the Nazis through without resistance. [Roosevelt] was very influenced by the visit that the Undersecretary of State Sumner Welles had paid to the Axis powers. He came back very worried and told Roosevelt “I think we need to make this move.” After Roosevelt had said no for a year, he changed his mind and within three days, it was done.
This decision looks very different in retrospect, doesn’t it?
It’s understandable in historical context that Roosevelt felt that he needed to do something to protect against what could be a serious threat. But in hindsight, he realized the fears were misplaced. As it happened, the Nazis kept their plans very close to the vest and didn’t trust people outside their inner circle. This “Fifth Column” was actually just propaganda and the enemy stoking fear in order to create insecurity and undermine Allies’ morale.
“What happened was that people were understandably fearful at times of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.”
Looking back now, 80 years later, it certainly has had the effect that Roosevelt and his advisors feared of making immigration be equated with crime and caught up with the political process. It really is sort of a function of historical accidents that we have the system where it is. It’s not the case that anyone ever said it would make good sense from an administrative law perspective to have immigration adjudication done in the Department of Justice under the control of the Attorney General. That was not a conversation that ever occurred. What happened was that people were understandably fearful at the time of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.
You write that the scenario Roosevelt had feared sixty years earlier of a foreign attack from within the country came to be in the early 2000’s with 9/11, and that in turn overhauled immigration policy in the twenty-first century. What did that overhaul mean specifically for immigration courts?
I looked to see whether there had ever been serious consideration of changing this system in the last 80 years, particularly after the realization that this so-called “Fifth Column” never really existed, and this was really just a response to Nazi propaganda that we are still stuck with. What I found was that in the 90s, there was some movement toward reform, but then 9/11 happened and changed the way Americans were thinking about foreign nationals, immigration, visas, and the relationship between the State Department and the FBI or other domestic law enforcement. For some time, it appeared that the immigration courts would be moved into [the recently created Department of] Homeland Security. Many people in Congress, especially Democrats, but some Republicans as well, were concerned about this. Maybe having it in a law enforcement agency wasn’t perfect, but having it in this national security agency, where it would once again be closely aligned with the prosecutors, would be even worse. With relatively little focus on the immigration courts at the time, the best that could be accomplished was to keep them in the Department of Justice instead of moving them into the Department of Homeland Security. It was an opportunity for reform that then got swept away by the events of 9/11.
After that, the issue sort of went underground again, until it started to appear on people’s radar screens during the Trump administration. Until then, the immigration courts were mostly allowed to function independently, and so people weren’t as up in arms about it. For the most part, Attorney Generals were pretty hands off and so people thought: Well, it’s a system that doesn’t make a whole lot of sense, but it mostly works, so it’s not that important to make this institutional change. I think it’s an unfortunate combination of political forces that has led the immigration courts to sort of limp along in this way.
“The Trump administration exposed the vulnerability that was already there in the system.”
Immigration courts were dysfunctional in nature long before Trump took office, but under his administration that gained a new dimension. What did this unprecedented politicization of the courts look like?
The Trump administration exposed the vulnerability that was already in the system. What we saw was a much higher level of intervention, about four times higher than even the George W. Bush administration, which had been the most active prior. One of the ways that happened was through the frequency with which the Trump administration used the Attorney General’s self-referral power, which means the Attorney General can take a case away from an immigration judge at any time and decide it as he wishes. In the Trump administration, that power was used 17 times in four years. Previously, the highest number had been 10 times over eight years.
In one case, the Attorney General made a statement that victims of domestic violence and gang violence would generally not meet the asylum standard. Officers within the Department of Homeland Security were confused by the scope of the decisions that were unprecedented. That confusion is still ongoing, and it affects what happens every day in the immigration courts. Immigration judges are feeling that their independence has been highly compromised, and they are hamstrung by the decisions of the Attorney General to do things that they actually think are just. This system that everyone tolerated for a while, assuming and hoping there wouldn’t be abuses, has now shown to be very clearly subject to abuses.
Jeff “Gonzo Apocalypto” Sessions’s outrageously wrong, unethical decision in Matter of A-B- illegally condemned many brown-skinned refugee women from Central America to abuse, torture, and even death. So far, Judge Garland has failed to intervene to correct the record, restore the rule of law, and end the unnecessary suffering! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
There’s currently a backlog of more than 1.3 million cases. Yet, despite what seems to be a consensus that immigration courts are not working as they should, we still have the same system from 80 years ago. Are there any solid arguments to justify keeping the immigration courts under the DOJ?
There may be an assumption by people that it was set up this way for a reason, and that we might be losing something if we changed it. When we look at the history, it makes clear that it really was a historical accident that we ended up with this system. There never was a coherent rationale. It was something that was done as a matter of exigency, when there wasn’t a good solution. And so they took a bad solution instead and stuck with it. There’s not a whole lot of efficiency or institutional knowledge that’s being gained by having these immigration courts within the Department of Justice.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up.” Largely self-created backlogs resulting from “Aimless Docket Reshuffling” by unqualified, xenophobic DOJ politicos and incompetent EOIR bureaucrats have become endemic at the totally dysfunctional Immigration Courts. There are lots of great ideas in the NDPA on how to slash the backlog immediately without denying anyone due process. But, Judge Garland to date has ignored them.
I think most people in the United States are not even aware that the immigrant courts are not part of our federal judiciary. They may be assuming that there’s a certain fairness built in that we expect from the federal courts when, in fact, it isn’t there. These are not courts; they are part of a law enforcement agency. The system is actually set up in such a way that it allows for political decision-making to become part of these court cases in a way that Americans don’t usually think of court cases being decided. That’s really inconsistent with American notions of justice, fairness, and due process. We think that those are decided by what we hope and aspire to be independent judges who are not part of the political branches and not subject to the whims of politics. From that fundamental misunderstanding, if we look deeper, we can see a desire for change. We have the choice to change that now.
Your book seems to suggest that the problem runs way deeper than what stopgap measures like hiring more immigration judges could accomplish. What do you think is an appropriate approach to creating independent immigration courts?
Adding more immigration judges or changing the way immigration judges are hired to have more diversity are not bad ideas in and of themselves, but they don’t get at the root of the problem. The root of the problem is that the immigration courts were never really intended to be impartial courts. Under our basic founding Constitutional principles of due process and separation of powers, we can and should protect the adjudication process and make it separate from the law enforcement process. The Biden administration could play a role by urging Congress to seriously consider and to pass legislation that would separate immigration courts into an Article I court system. Article I courts are a relatively independent system set up by Congress and, by definition, would create separation between the immigration courts and the executive branch. That would give us something that approaches the fairness that people deserve.
This interview has been edited for length and clarity.
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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!
“Justice” Star Chamber StyleWoman 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-004160BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
*****************
Clearly, experts like Professor Alison Peck, who understand and have personally experienced the abominable, unconstitutional, life threatening unfairness of this broken and totally dysfunctional system should be the judges and intellectual leaders, particularly at the appellate level, of a reformed, independent Immigration Court system.
In a functioning legal system, successful asylum seekers would fill their essential role in increased legal immigration that has been denied them by a distorted, racist, misogynist system that treats them as a “problem to be solved” — largely because of their skin color — rather than humans entitled to our protection who will contribute to our future.
Indeed, every day we illegally turn away many of those we need for our future in their hour of direst need! Such selfishness, cruelty, mockery of the rule of law, and short-sightedness does not reflect well on our nation!
“It’s not rocket science,” but so far Garland, Monaco, and Gupta have “blown off” the advice of human rights experts like Professor Peck and refused to consult, elevate, or otherwise empower those who could bring due process, order, and expert, professional judging to the Immigration Courts!
Judge Merrick B. Garland, U.S. Attorney General. Why is he carrying out Stephen Miller’s White Nationalist policies @ EOIR? Official White House Photo Public RealmVanita Gupta Associate AG, previously a widely respected expert in civil rights, human rights, and racial justice has so far failed to have an impact on institutionalized racism, misogyny, and reactionary “judging” at EOIR! Photo: Brookings Institution, Paul Morigi, Creative Commons LicenseLisa Monaco Deputy AG, newly confirmed, but appears to have little awareness and no plans for aggressively reforming the worst “courts” in America, spewing out injustice at the DOJ. Official USG Photo, Public Realm
Suzanne Monyak Senior Reporter, Immigration
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets.
“There’s no reason that Attorney General Garland hasn’t done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”
. . . .
The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases.
The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.
Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.
“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said.
While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said.
. . . .
Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.
Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside.
“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it’s going to collapse under its own weight.”
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Thanks, Sue!
Today’s Immigration Courts, hotbeds of inefficiency, worst practices, racial bias, misogyny, and unnecessary backlogs, undermine everything that Biden and Harris campaigned on. They also make Judge Garland’s pledge to return justice and independenceto the Department of Justice look like a farce.
You simply can’t be responsible for something as totally broken, biased, and due process denying as the current Immigration Courts and have ANY shred of credibility on racial justice, independence, and “good government!”
“Eyore In Distress” “Why won’t Judge Garland help me get back on my feet? I”m so tired of being ‘belly up!’”“We were waiting for Judge Garland to free us from this chamber designed by Sessions, Miller, and Barr? Why is Garland diddling as we suffer and die?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Judge Garland’s concept of “justice” for refugee women and people of color seems a little out of touch — anti-asylum, misogynistic, anti-due process, xenophobic, racially charged precedents remain in place; regressive, unqualified judges on the bench; “worst practices” continue to flourish; 1.3 million case backlog builds; & He hasn’t spoken to the naij:
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
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-004160He doesn’t look like Jeff “Gonzo Apocalypto” Sessions or “Billy the Bigot” Barr, but does he think like them? Or does he just not care about the lives of people of color at the border and in his Immigration “Courts” that aren’t “courts” at all by any Constitutional or rational standard? Has he ever studied “The St. Louis Incident?” He’s basically repeating it! Official White House Photo Public Realm
Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place! PHOTO: Thomas Hawk Creative Commons
Fed up with “Garland’s Clown Show🤡” @ Justice?
Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!
Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!
Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!
Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!
Thankfully, he’s gone, but he left plenty of his friends @ EOIR. Judge Garland might be enjoying his “Continuing Clown Show.” But, the human beings whose rights and humanity are degraded daily and their long-suffering lawyers, not so much! (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permission
WASHINGTON — An immigration judge in the San Francisco court abruptly quit his post this week, issuing a scathing letter upon his retirement expressing frustration with the entire court system and its U.S. Justice Department management.
The letter does not acknowledge that Judge Nicholas Ford himself was also the subject of criticism from local attorneys representing immigrants, many of whom banded together to file a formal complaint against him alleging hostile and biased treatment of their clients with the Justice Department last year.
In his departure letter addressed to “wonderful” colleagues in the San Francisco immigration court, a copy of which was obtained by The Chronicle, Ford said he had “profound” frustration with Justice Department court managers. Ford said his supervisors were “a fearful community whose primary interest has never been the growth of those they oversee but rather their own continued employment.”
Ford, a former criminal court judge in Cook County, Ill., said he wanted to issue a “warning” to other immigration judges.
“I am an older judge and it is hard to understand how any court system can function like this,” Ford wrote. “These managers I have spoken of from the director to those in management below her will not support you. As we used to say in Chicago ‘they will throw you under the bus in a minute.’ Stay on your toes and view skeptically anything they tell you.”
Ford did not immediately respond to a voice mail seeking comment.
Ford was named to the immigration court bench in 2019 by then-Attorney General William Barr, after a controversial tenure in Chicago during which he was criticized for jailing a pregnant woman without bail for a nonviolent crime and had a high number of rulings overturned by appellate courts, according to a justice watchdog group.
In San Francisco’s immigration court, the criticism from private attorneys continued. In a complaint filed by more than a dozen law firms and legal organizations that represent immigrants, including the local chapter of the National Lawyers Guild, attorneys said Ford regularly acted in an “aggressive, unprofessional and demeaning” manner toward immigrants and displayed shocking in-court behavior.
. . . . .
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Tal Kopan Washington Reporter, SF Chronicle
Read the rest of Tal’s article at the link.
The problems are well-documented;
The need for reform is immediate;
The solutions are obvious;
The expert progressive talent to shake up this system and get it back on track to due process and fundamental fairness is readily available!
So, what’s missing: Progressive leadership, recognition, engagement, and action from Judge Garland!
The Biden Administration continues at their peril to demean, dismiss, and disrespect progressive immigration experts, their supporters, and the human lives at stake! It’s incredibly stupid! But, sadly, not unprecedented in Dem Administrations. That explains a lot about how we got to the current unacceptable situation.
Outside the West Wing, the legal community is aghast at Judge Garland’s failure to address the ongoing, deadly, debilitating, mess @ EOIR! And, although reform is achievable, it’s “mission impossible” with the folks currently on Garland’s staff and @ EOIR HQ.
Oh, and did I mention that Garland’s EOIR is sitting on a largely self-created 1.3 million (known) case backlog? Even if no new cases were put in the system, they wouldn’t get done with the existing cases by the end of Joe Biden’s first term in 2025! And, that’s without counting the cases that inevitably are completely “off docket” — lost in EOIR’s sea of technical and management incompetence.
Still, no sense of urgency and recognition whatsoever from Judge G! Why “study and muse” about what dozens, perhaps hundreds, of experts have already told you how to fix — some many times over?
Judge, those of us who who have been dealing with this disgraceful, dysfunctional system for years know what the problems are and how to fix them. What we need from you is intelligent, decisive, progressive, due-process-focused action, not more “dithering and studying!” You can’t and won’t get the job done with the current staff at DOJ and the clowns at Falls Church!
Heck, they just mindlessly “pissed off” every “stakeholder” in the country with yet another inane, “top-down,” “your views don’t count,” unworkable, detached from reality, “policy memo” and a series of disastrous (that’s one of the more “printable” adjectives I heard) “Town Halls!” What other “court system” in America spends time and resources on nonsense like this? The clowns might be Sessions-Barr-Miller holdovers. But, they are performing in YOUR NAME, Your Honor. And, let me give you a clue: It’s not going over well with the audience!
Judges Dana Marks, Amiena Khan, Noel Brennan, Janette Allen, Dorothy Harbeck, Mimi Tsankov, Samuel Cole, and other progressive jurists like them, with courage and executive ability, are ready to take over the Falls Church Tower, on an immediate temporary basis, start fixing the problems, and restoring due process, fundamental fairness, sound leadership, and best practices at our now-dysfunctional U.S. Immigration Courts. The NAIJ are the only folks at EOIR conducting competent professional training emphasizing due process and best practices. They are actually solving problems, but EOIR HQ is creating new ones!
The forces of due process and competence @ EOIR are just waiting for the call from Judge Garland. Will it come before it’s too late for him and for America?
“Through teamwork and innovation, become the world’s best tribunals guaranteeing fairness and due process for all.” Not, “rocket science,” 🚀 by a long shot. So, why does it continue to elude Judge Garland?
The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their
ALVARADO-HERRERA V. GARLAND 5
apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!
“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”
[Hats off to Stephen W. Spurgin!]
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Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized”BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful.
Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.
Roger Taney PHOTO: Matthew Brady Public Realm Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!
The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!
Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection.
Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear?
The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing.
Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.
It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health.
Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!
Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.
Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! PHOTO: Thomas Hawk Creative Commons
Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system.
It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”
Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!
As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.
Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridgefundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.
Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.
Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.
Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.
They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.
They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!
They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.
And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”
(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)
Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them!
Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!
Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.
They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.
Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.
Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.
Yesterday’s stunning“unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.
It’s not rocket science:
Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?
Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.
Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.
It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿♂️🏴☠️!
6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”
If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!
