IMMIGRATIONPROF BLOG: Law Student Essay Captures Essence Of Problem In Immigration Courts: “Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period.” Structural Problems, Indefensible Personnel Decisions, Byzantine Bureaucracy Continue To Plague Garland’s Broken Courts!☠️

https://lawprofessors.typepad.com/immigration/2021/10/good-judge-bad-judge.html

Guest blogger: Kelsea Villanueva, law student, University of San Francisco

Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period. Bad attitudes and questionable decision making within the immigration courts often cause the most noise because the impact is often more than a rude remark. While I do not believe problematic judges make up the whole picture of immigration courts, just one bad judge can be enough to impact the lives of many, and I only wonder whether it is the system that perpetuates behavior, the history and beliefs of immigration, or both that give rise to bad experiences.

Surprisingly in our own city, San Francisco Judge Nicholas Ford was the subject of a complaint that was sent to the U.S. Justice Department for being hostile and having biased treatment of immigrants in the courtroom. The accusations stated that he belittled migrants’ stories and struggles by making inappropriate comments. One account stated that he said “I can tell an indigent person when I see one, and you can afford an attorney” in response to someone who claimed they could not pay. Many accounts also made it a point to mention that he had previously been criticized for jailing a pregnant woman without bail for a nonviolent crime – this gives an idea of his character in court. When he was first appointed by the Attorney General under the Trump administration, Ford had been a judge in the criminal justice system and apparently had no prior immigration law experience. Other judges that have similar backgrounds can take biases from the criminal justice system and bring them into the immigration law field. There is the risk that the treatment of criminals becomes synonymous with the treatment of immigrants.

Even if judges like Ford represent a minority, the behavior exhibited by him is not unusual in immigration courts. In Jacinto v. INS, 208 F. 3d 725 (9th Cir. 2000), it was difficult for the respondent to even answer basic questions about her family’s struggles; she was constantly faced with interruptions by the immigration judge and a blatant lack of patience. Most people regardless of being an immigrant or not could become overwhelmed during questioning or lack of information about legal procedures. Lacking compassion and basic manners, whenever Jacinto was asked a question regarding why she was seeking asylum, the immigration judge or government attorney would interrupt her midsentence and not allow her to ask any clarifying questions. The transcripts reveal a sense of confusion and urgency, as they treated her as if they were in a rush and like she was wasting their time.

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Kelsea Villanueva, a law student, “gets” it! So why don’t Garland and his lieutenants?

Perhaps, because they are too far removed from the human trauma and and the practical problems in the broken and unfair “courts” for which they are responsible! They obviously have become indifferent to the unnecessary human suffering they cause by tolerating this systemic stain on American justice.

It’s not that there aren’t lots of exceptionally well-qualified immigration lawyers, practical scholars, and effective litigators in the Bay Area (and most other areas where Immigration Courts are located) who would make great Immigration Judges. Therefore, it has taken a concerted effort over the past four Administrations, including the Biden Administration, NOT to recruit, attract, and hire the “best and brightest” for these life or death judicial positions.

One “key to building dysfunction” has been the childish, demeaning, and disrespectful treatment heaped upon the “IJ Corps” by DOJ politicos and EOIR “Management” trying to appease their “handlers.” Attempts to enforce “assembly line justice,” lousy technology, poor training, screwed up and always changing “priorities,” micromanagement by non-judges, and favoring “quick numbers” over thoughtful high quality judicial work product obviously discourages many of the most talented and well-qualified lawyers in the business from even applying.

Some of those who do make the effort are then demoralized and discouraged when clearly inferior candidates, some lacking even basic immigration and asylum knowledge, are hired by a DOJ bureaucratic system that too often seeks and rewards complicity and “following orders” over intellectual excellence, proven immigration and human rights expertise, and the courage to make the right decisions even in the face of political pressure from above to “go along to get along” with each Administration’s enforcement agenda.

Surely, no panel of immigration/human rights experts would have recommended hiring someone like Judge Ford for the job! So, why was he even on the Immigration Bench in the first place?

In every way, Judge Ford was EOIR’s self-created problem! It tied up both private resources and Government investigative resources that could have been better used. It further damaged EOIR’s reputation and ruined human lives. In the end, the “Ford brouhaha” produced no transparent results, thus further eroding public confidence in Government. It prompted neither accountability nor reforms to insure a better judicial selection process!

The best way to limit the administrative nonsense, unnecessary and inappropriate meddling, and time and resources wasted building a needless, ineffective bureaucracy to “monitor performance” and investigate complaints is to hire exceptionally well-qualified judges in the first place — good judges need neither much supervision nor significant monitoring. All they need is support, independence, professional training, continuing judicial education, and some inspirational encouragement from dynamic, well-qualified judicial leadership — things that generally have been in short supply within the EOIR bureaucracy, particularly over the past four years!

Leaders should be sitting judges — not just disconnected bureaucratic “managers” — who continue to handle regular dockets so they have the necessary perspective and first-hand experience to lead this broken system back to functionality. In what other “real” judicial system do the “chief judges and chief justices” largely or completely cease to perform judicial duties?

For example, Chief Justice John Roberts has no shortage of administrative and leadership tasks. Yet, somehow, he finds time to participate in every merits case coming before the Court!

Almost every day, we see Court of Appeals decisions in which the Chief Judge of the Circuit was a panel member, sometimes even writing the opinion. Chief U.S. District Judges hear cases and sometimes author lengthy opinions in notable and controversial cases.

There are few, if any, examples of successful judiciaries in which those in leadership positions isolate and insulate themselves from the judicial tasks of their colleagues! Yet, this has become “standard operating practice” at DOJ/EOIR. This is despite “clear and convincing evidence” that DOJ/EOIR’s bloated “Vatican style” (a/k/a “Legacy INS style”) bureaucracy is incapable of practical problem solving and has presided over the demise of a court system that once aspired to greatness, even if the efforts sometimes fell short!

The taxpayer money wasted on ludicrous “Immigration Judge Dashboards,” unnecessary “supervisors” who almost never go to court, ineffective and inefficient “Dedicated Dockets,” establishing “TV Adjudication Centers” in strange places, and running “kangaroo courts” embedded in the DHS Gulag could be repurposed into funding legal representation programs, a functioning e-filing system, more Judicial Law Clerks, judicial training by experts, and other badly needed and long overdue improvements and reforms. These things would actually help the system achieve justice with efficiency, rather than aggravating existing problems!

EOIR’s “customer service,” transparency, and engagement with the public get consistently low marks from Government watchdogs. I see no improvement under Garland.

Any legitimate system for judicial tenure or retention relies on robust public input and some peer involvement — things that are foreign to the DOJ/EOIR model which, if I do say so myself, bears a disturbing resemblance to the Byzantine bureaucracy of the “Legacy INS” (although the there are only a few us still around who experienced the latter “first hand”).

Ironically, EOIR was originally established as an independent agency within DOJ to “free” it from the “Legacy INS;” over the years it has come more and more to look, feel, and operate like the worst aspects of that long-disbanded agency.

In particular, it has “retaken on” the image of “being just another appendage of immigration enforcement” — a complete abandonment of the original goal of increased judicial independence in both fact and appearance!

Numerous private lawyers have related to me that being in an EOIR “courtroom” is too often “like facing two prosecutors.” Some say that their already traumatized clients are “re-traumatized” by the rude, disrespectful, and inhumane treatment they receive in Immigration Court as they attempt to plead for their lives and their families’ futures! What kind of judiciary “operates” in this manner?

For heaven’s sake, even former AG Alberto “Gonzo I” Gonzalez, hardly a “due process warrior,” spoke out publicly against demeaning treatment of migrants by Immigration Judges! Article III Courts continue to document instances of bias, incompetence, and cavalier treatment of human lives in Garland’s Immigration Courts at both trial and appellate levels. Yet, he says nothing and has taken few actions to solve the myriad of festering problems! We deserve better, much better, from the “people’s top lawyer!”

It’s also worth contemplating why law students understand the systemic problems and potential solutions better than the senior Government lawyers and officials we are employing and paying to mismanage it!

You can read the rest of Kelsea’s excellent piece at the above link!

🇺🇸Due Process Forever!

PWS

10-20-21

DESIGNED & STAFFED BY THE GRIM REAPER! ☠️⚰️— Star Chambers 🤮⚰️ Masquerading As “Courts” Are A Hotbed Of Institutionalized Racism, Cruelty, Bias, Bad Law, Worst Practices & A Refuge For Maliciously Incompetent Administrators 🤡 & Patently Unqualified “Judges”🤮 — All The Talent Has Been Exiled, Buried In The Field, Or Driven Out! — The Biden-Harris Presidency & The Future Of America As A Nation Of Laws Depend On An Immediate Fix To This Grotesque Affront To Due Process, Fundamental Fairness, Human Dignity & Good Government Called “EOIR 🏴‍☠️!”

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Star Chamber Justice — “Justice”
Star Chamber
Style

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.google.com/url?q=https://www.justsecurity.org/73337/the-urgent-need-to-restore-independence-to-americas-politicized-immigration-courts/?utm_source%3DRecent%2520Postings%2520Alert%26utm_medium%3DEmail%26utm_campaign%3DRP%2520Daily&source=gmail-imap&ust=1605992548000000&usg=AOvVaw2Lv6qMLlyAHGvI3TEwjt62

Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:

The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.

In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.

Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.

The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.

The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.

Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.

Packing the Board of Immigration Appeals

The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.

The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.

The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.

A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.

Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)

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Read Gregory’s complete article at the link.

Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)

According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area: “In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”

Read about it from the Bay City News here: https://www.nbcbayarea.com/news/local/san-francisco/compliant-filed-against-sf-immigration-judge-accused-of-hostile-treatment/2399398/

With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!

Enough of the malicious incompetence, institutionalized racism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing “crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.

The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!

There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!

This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!

Due Process Forever!

PWS

11-15-20