⚖️HOPEFUL SIGN ON ARTICLE 1? — At Oversight Hearing, Garland Expresses Modest Endorsement Of Judicial Independence & Open Mind On Article 1 — “As independent as possible,” whatever that means.

Judge Merrick Garland — Attorney General Merrick B. Garland — “Is he open to Article I? It would be nice to think so, but still plenty of reason to be skeptical about his intent for EOIR!’
Official White House Photo
Public Realm

Here’s the audio:

https://www.appropriations.senate.gov/hearings/a-review-of-the-presidents-fiscal-year-2022-funding-request-for-the-us-department-of-justice

The relevant remarks are at 1:59.

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

While it’s always good to be optimistic, to date, “as independent as possible” has meant “as independent as four years of White Nationalist weaponization and meddling from Trump, Miller, Sessions, Barr, Whitaker, Hamilton, McHenry, et al, left them.” That’s NOT independent at all! Quite the OPPOSITE. In many ways there is less judicial independence and more political interference at EOIR now than there was when it was located within the “Legacy INS” before EOIR was created in 1983.

I personally will believe it to the extent that it’s reflected in actions. That means things like vacating restrictive anti-immigrant precedents, restoring asylum for gender-based violence, re-instituting and encouraging Administrative Closing, slashing the backlog by working with parties to remove the vast majority of “non-priority” cases that could be handled in alternative ways, installing e-filing, eliminating bogus “performance work plans,” repudiating “production quotas,” replacing Trump’s BIA with better-qualified judges, revising judicial recruiting and hiring practices to attract more diverse expert candidates from the private/NGO sector, considering stakeholders’ views and recommendations on important policies BEFORE announcing them, establishing a transparent complaint and tenure review process involving the private bar, re-establishing a robust asylum system at the border, upgrading judicial training and using “outside DOJ” experts to conduct it, eliminating the unnecessary “Office of POlicy” from the bloated bureaucracy, hiring experts in judicial management for administrative positions, encouraging written over oral decisions on cases likely to be appealed, expanding the number of judicial law clerks assigned to judges, eliminating agency bureaucracy and redirecting resources to improving local courts and furthering independence, re-recognizing the NAIJ and listening to their suggestions, working cooperatively with the pro bono bar to increase representation, rethinking the overuse of televideo and the presence of “courts” in detention center settings (e.g., prisons in the “New American Gulag”), selecting and retaining only judges who will treat all parties, counsel, and court personnel with respect and professionalism, actively working to overcome the “culture of denial, White Nationalism, and misogyny” that has permeated EOIR over the past four years and still exists, ending docket meddling from Falls Church and DOJ and returning control to local judges, eliminating “Aimless Docket Reshuffling” by politicos and their enablers, reducing the use of single-judge orders at the BIA, selecting expert Appellate Judges for the BIA who will issue some positive as opposed to only negative precedents, refusing to open and closing “courts” located in obscure, out of the way prison locations selected by DHS in large part because of the absence of pro bono lawyers, returning full authority to grant continuances to local judges, no longer referring to DHS (but not respondents’ counsel) as “our partners,” ending the use of derogatory terms and false claims by DOJ officials to Immigration Judges about private lawyers, stopping the intentional manipulation of statistics bv DOJ and EOIR management to further political agendas, ending the “muzzle” on Immigration Judges and encouraging them to participate in public professional activities, promoting best practices rather than institutionalizing worst practices, and again making “through teamwork and and innovation, guaranteeing fairness and due process for all” the absolute touchstone at EOIR, for starters.

To date, NONE of the things on the foregoing list has been accomplished or proposed by Garland and his team. Indeed, a number of his actions, like engaging in “Aimless Docket Reshuffling” by establishing a “Dedicated Docket” for new asylum cases without consulting the stakeholders in advance, and appointing 17 new judges selected by Barr under defective and flawed procedures that discouraged diversity and “disfavored” private sector candidates, are in direct contravention of due process and best practices and serve to discourage, rather than nurture, judicial independence.

Moreover, as I have previously said, I see no evidence that Garland has hired or reached out to any of the types of progressive experts who could actually implement these reforms necessary to achieve judicial independence and promote due process. You can’t get the job done for judicial independence and due process without a radical personnel shakeup at EOIR! The current group at both DOJ and EOIR just doesn’t cut it, as ever a casual observer could tell Garland.

So, until I see some ACTUAL progress, beyond mushy rhetoric, color me skeptical about Garland’s plans for EOIR.

🇺🇸🗽⚖️Due Process Forever!

PWS

06-10-21

⚖️🌟🗽NDPA SUPERSTARS, PRACTICAL EXPERT PROFESSORS LINDSAY M. HARRIS AND SARAH R. SHERMAN-STOKES SCORE BIDEN ADMINISTRATION’S CONTINUED RELIANCE ON BOGUS 🏴‍☠️ TRUMP-ERA, WHITE NATIONALIST COVID-19 RESTRICTIONS TO RETURN REFUGEES TO DANGER & DEATH @ SOUTHERN BORDER!☠️🤮⚰️

https://apple.news/A9hXjuI8xTQ6Zle8aVf4Dgg

Lindsay and Sarah write in USA Today:

. . . .

However, despite advice from public health experts and condemnation by UNHCR, expulsions under Title 42 continue and the human cost has been devastating. Though refugees come from countries all over the world, the Department of Homeland Security expels them to Mexico, just on the other side of the border.

Reports by Human Rights First document the terrifying realities they face once there: kidnappings, violence, sexual assault, extortion and even murder in border towns where criminal gangs and cartels prey on recently expelled children and families. Just this spring, a 4-year-old Honduran boy and his asylum-seeking mother were kidnapped in Nuevo Laredo immediately after they were expelled under Title 42.

Expulsions don’t just impact migrants from Mexico and Central America. Despite the recent designation of temporary protected status for Haitian migrants within the United States, the Biden administration has sent plane after plane of asylum-seeking families back to Haiti, with some Haitians being expelled to Mexico. The UndocuBlack Network and the Haitian Bridge Alliance, for example, document a Haitian woman expelled to Mexico with her three-day-old baby, where she will face extreme anti-Black discrimination and be at risk of violence and homelessness.

Just the start: Biden will no longer detain migrants at two county jails. That’s good but not enough.

Public health has often been used as a pretext for restrictionist immigration policies. Beginning as early as 1793, when Haitians were blamed for bringing yellow fever to Philadelphia, nativism and xenophobia have long merged with concerns about public health to exclude immigrants and refugees. These concerns were not justified by science then, and they certainly are not justified now.

. . . .

Lindsay M. Harris (@Prof_LMHarris) is associate professor and director of the Immigration and Human Rights Clinic at the University of the District of Columbia’s Law School. Sarah Sherman-Stokes (@sshermanstokes) is clinical associate professor and associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.

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

Read the rest of the USA Today op-ed at the link!

Thanks, my friends, for speaking out about the continuing outrages perpetrated by the Biden Administration at our Southern Border. So many, many “practical experts” out here in the “real world,” like Lindsay and Sarah, who would be heads and shoulders above current immigration “leadership” at DHS, DOJ, and EOIR and who would bring “real, qualified, expert judging” to the BIA and the Immigration Courts.

The Biden Administration’s failure to actively recruit, attract, and promptly bring on board the “best and the brightest” that American law has to offer for these critical jobs (which do NOT require Senate confirmation) is a disgrace! Betcha Stephen Miller could tell them how to do it! But, curiously, the Biden Immigration Team seems to think that alienating the best progressive minds in the business, the folks who helped them get elected and can fix their immigration problems, is smart politics and great public policy! Go figure!

Suspending the rule of law and international treaty obligations is never “OK” and it’s not something to be “studied.” “Gee whiz, should we comply with the law or continue to violate it; should we continue to send people to possible kidnapping, rape, torture, extortion, and/or death with no process or should we give them fair hearings; should we continue unqualified Trump hacks in key positions and keep defending illegal policies or should we hire qualified experts from the NDPA to restore and promote due process?” These are the “questions” that folks like Garland, Mayorkas, and their “spear carriers” are being paid to “study” while innocent humans are daily being abused and dying in the “real world” that these Biden Cabinet officers appear to have absented themselves from? Gimme a break!

We need an end to the deadly nonsense at DHS, DOJ, and EOIR NOW! Keep the outrage, the op-eds, the law suits, and the exposure and documenting of Mayorkas’s and Garland’s illegal, immoral, and incompetent actions coming until we get change and our Government delivers on the Constitutionally-required promise of due process, equal protection, and racial justice for all persons!

🇺🇸⚖️🗽Due Process Forever! The Garland/Mayorkas “Miller Lite Nonsense” at the border, never!

PWS

06-04-21

⚖️🗽Round Table Adds Voice To Crescendo Of Civil Rights, Human Rights, Racial Justice, Social Justice, Immigrants’ Rights, Good Government Groups Asking Garland For Progressive Due Process Reforms @ Dysfunctional EOIR! — Failure To Vacate Trump-Era “Killer Precedents” Adds To The Injustice & Chaos In Garland’s Disgracefully Failed “Courts!”

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Here’s a link to the letter:

AG Garland letter Precedents FInal

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

Thanks to Round Table “Fearless Knightess” Judge Sue Roy of NJ for spearheading this effort and taking the drafting lead. Now, a private practitioner, Sue is one of the thousands of lawyers and millions of individuals and family members directly affected by the continuing dysfunction at EOIR and Garland’s failure to bring in progressive leadership from the NDPA to make long-overdue “no brainer” reforms @ EOIR.🆘

In an interesting coincidence, the 17 improperly certified precedents from Sessions, Whitaker, and Barr matches the 17 inappropriate and insulting “Miller Lite/Barr Leftover” Immigration Judge appointments that Garland just made!

One thing is for sure: Garland its NOT getting the job done for progressives nor is he restoring due process at EOIR. Instead, the deadly,☠️ disgusting 🤮downward spiral continues every day!

🇺🇸🗽Due Process Forever!

PWS

05-25-21

GARLAND & MAYORKAS DON’T “GET IT” — Who Makes Key Asylum Evaluations, Their Training, & Their “Group Culture” Are “Outcome Determinative” In “Life Or Death” Asylum Decisions — Failing To Recognize The Miller White Nationalist Culture @ DOJ & DHS & Not Bringing In Progressive Experts To Lead, Train, Adjudicate, & Judge Is A Killer, ☠️⚰️ Literally! — “The Biden administration now faces the Herculean task of restructuring our immigration system, not just by walking back Trump policies but also by building new ones that represent a country built on freedom, hope, and asylum. And it starts by properly and fairly listening to our asylum seekers.”

ElizabethL. Silver — Elizabeth L. Silver
American Author & Attorney
PHOTO: By David Zaugh on Elizabeth L. Silver Wevsite

https://lareviewofbooks.org/article/what-does-credible-fear-really-mean/

What Does “Credible Fear” Really Mean?

May 24, 2021 • By Elizabeth L. Silver

A FEW MONTHS BEFORE COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.

I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter.

Right now, our country again faces a critical point in defining our identity: are we in fact a country founded on freedom and designed to welcome those in need? The Biden administration states that it aims to help asylum seekers, but in order to do so we need to reevaluate how we approach asylum at all levels. That begins with reassessing how we determine credible fear.

During my brief time working in Dilley, I helped women prepare for their credible fear interviews. Many asylum seekers might not understand the process, nor necessarily know which details of their stories determine what the United States has deemed credible fear. Asylum is not a guaranteed right, and attorneys are not permitted to help during the interview; thus, preparation is key.

I spoke with a woman who fled five countries to escape her abusive boyfriend. The man followed her from country to country, raping her and threatening her life in each country. No matter where she fled in South and Central America, he followed her. Her five-year-old son, a product of one of these rapes, held her hand during our conversation in the detention center. I spoke with another woman who was threatened by a well-known drug cartel. Through her tears, she could barely communicate to me that they had already killed her brother, taken her money, patrolled the school where she taught, and routinely policed her town, spitting bullets as easily as words. As I interviewed the women, they cradled their young children, who were also visibly traumatized by what they had experienced in their home countries, by their journeys to the United States, and finally by the process to gain safety on this side of the border.

The credible fear interview places the burden of establishing fear on the applicant and is supposed to be non-adversarial, but given the nature of everything that precedes the interview — the lack of representation during the process, the jail-like location in which it takes place, the asylum officer’s constant questions — it feels adversarial. And this is just the first step. If the officer determines that she does have credible fear, the next step is to present her case to an immigration judge in a proper hearing.

. . . .

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

Sadly, and completely unnecessarily and inappropriately, there is nobody in a leadership position at DOJ right now with Elizabeth Silver’s practical insights and understanding of our broken asylum system and how it can be fixed! I’ll bet that neither Garland nor anyone on his senior staff has spent a week at Dilley or any comparable site in the “New American Gulag” trying to represent vulnerable asylum seekers in Garland’s “wholly owned star chamber courts.”

Has Garland even taken the time to observe what’s happening in Dilley, Pearsall, Texas (“home of the Big Peanut”); Jena, Louisiana; Lumpkin, Georgia (“where asylum cases go to die”), or any of the other comparable “courts” (that don’t function like “courts” at all)? Has he ever spoken to asylum applicants and their pro bono lawyers trying to negotiate his fatally flawed and intentionally “user unfriendly” system? Has he gone out and hired progressive “practical scholars” to fill in his “blind spots?”

Schmidt, Richardson, Big Peanut, Pearsall — Round Table Judges John Richardson and I have “seen the Peanut” and lived to tell about it! Pictured here in 2015 with then Pearsall JLC B. Atenis Madico.

That says loads about AG Merrick Garland — none of it good! “Ignorance,” “intransigence,” and “good enough for government work” are not acceptable approaches for the Biden Administration! Yet that’s exactly what Garland has “delivered” on immigration, human rights, racial justice, and gender equity during his first three months at “Justice.”

Of course it’s adversarial! Totally, these days!

The White Nationalist racists in the Trump regime like Miller, “Gonzo” Sessions, “Wolfman,” “Cooch Cooch,” and “Billy the Bigot” hated asylum seekers, people of color, and women and “biased out” the system and selection processes accordingly. Heck, in clear violation of the statute, Trump even replaced USCIS Asylum Officers with totally unqualified Border Patrol Agents to insure denial of even the most compelling claims!

Sessions bogusly bellyached about too many individuals passing “credible fear.” To the contrary, this was totally appropriate, given the “super generous” standards that are supposed to be applied at the “access to the system gateway.” The real systemic problem was in the historically poor performance of the Immigration Courts on asylum grants that got immeasurably worse under Sessions and Barr. (And has remained beyond horrible under Garland’s non-existent “leadership!”)

As almost all legitimate human rights experts would confirm, the “high rejection rate” later in Immigration Court results from far, far, far too many unqualified, non-expert, improperly selected, poorly trained, Immigration “Judges” — at both the trial and appellate levels — operating in a “culture of institutionalized racism, misogyny, and default denial” rather than the generous atmosphere and culture required by the Supremes in INS v. Cardoza-Fonseca but never truly implemented at EOIR.

“Herculean” although the task might appear, there are thousands of well-qualified immigration and human rights experts, most of them in the private sector right now, who could solve this problem and establish due process, fundamental fairness, real asylum expertise, and the rule of law in short order. But, Garland and Mayorkas have failed to remove the deadwood and the Trump/Miller holdovers and have not brought in the expert problem solvers to get this currently deadly, defective, illegal, and blatantly unconstitutional system under control. Additionally, qualified, expert Immigration Judges, REAL independent, courageous Federal Judges, not “go along to get along “bureaucratic retreads,” could also train and effectively supervise the Asylum Officer Corps, rather than woodenly and often ignorantly “rubber stamping” defective denials of “credible fear.”

Incredibly, Garland aggravated this festering problem “right off the bat” by improperly hiring 17 new, non-expert, not judicial quality Immigration Judges from flawed recruitments, skewed lists, and bogus recommendations developed by “Billy the Bigot” Barr! What an amazing lack of awareness and “open dissing” of humane progressive values and commitment to quality in Government!

Does this group represent the type of diverse, progressive candidates that President Biden would nominate for Article III Judgeships? OF COURSE NOT! Then, what possible excuse is there for “gifting” them some of the most powerful and important Federal Judgeships — those with probably more “life or death” authority and discretion over individuals than even the Supremes? No excuse whatsoever!

Our asylum system is totally “fixable.” Immediate improvements can be made and noticeable systemic changes could and should be in place before the end of this year! But, not the way that Garland and Mayorkas are going about it! The deadwood needs to go NOW, and be replaced with expert, progressive leadership, judges, and adjudicators!

🇺🇸Due Process Forever!

PWS

05-25-21

🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼BREAKING — THE NDPA STRIKES BACK WITH VIGOR: 70 Human Rights, Civil Rights, Due Process, Good Government, Immigration, Equal Justice, Racial Justice, Progressive, Gender Justice Organizations Rip Garland, Monaco In Letter Protesting Their Abject Failure To Address Due Process, Racial Justice, Rule Of Law Disaster At EOIR — New, Competent, Diverse, Progressive Leadership & Judges Needed To Counteract 4 Years Of White Nationalism, Biased Hiring, “Malicious Incompetence!” — No More “Miller Lite Unhappy Hour” @ DOJ!

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons — This picture must be changed @ EOIR NOW! There is no excuse for Garland’s & Monaco’s failure to make the end of White Nationalist bias, immediate progressive reforms, and progressive expert personnel appointments at EOIR their HIGHEST national priority. There can be NO racial and gender justice in America while Garland operates Miller’s White Nationalist Star Chambers @ EOIR! DUE PROCESS FOR MIGRANTS CAN’T “WAIT FOR GODOT!”

https://drive.google.com/file/d/1mpZhBGsqCWULOqOVQDw-16lxigY2OTRL/view

May 19, 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

The Honorable Lisa O. Monaco

Deputy Attorney General of the United States U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

RE: The U.S. Department of Justice Must Review EOIR Personnel and Install New Leadership

To Attorney General Garland and Deputy Attorney General Monaco:

We, the undersigned immigration, civil rights, human rights, and democracy protection organizations, are deeply concerned that politically motivated personnel installed under the Trump administration remain in key leadership positions at the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR). The prior administration appointed highly problematic personnel in positions of power throughout the EOIR, from Immigration Judges to the Board of Immigration Appeals (BIA) members to EOIR headquarters staff. After numerous allegations of politicized hiring and mismanagement of the immigration courts, the U.S. Government Accountability Office (GAO) has launched an investigation into EOIR.i The DOJ plays a critical role in the oversight and management of the immigration court system and we urge you to conduct a review of all EOIR personnel decisions made by the previous administration, immediately install new leadership to all key posts, and diversify the immigration judge corps.

DOJ and EOIR must overhaul the agency’s culture

The prior administration turned the immigration courts into a conveyor belt for deportation, systematically hiring personnel to carry out President Trump’s anti-immigrant agenda and introducing new hiring, training, and courtroom policies.ii Recent reporting has also exposed widespread sexual harassment and sexism within the agency.iii Following this investigation, the Director of EOIR was transferred to another division but DOJ and EOIR have yet to provide any plans to address the rampant misconduct.iv Critical and urgent personnel changes are needed to rehabilitate the radically transformed immigration court system that continues to cause irreparable harm and suffering for immigrants and their families.

EOIR Headquarters

We are deeply concerned that the Trump administration embedded multiple political appointees into career government leadership positions at EOIR headquarters. As Senator Durbin outlined in his recent letter, “Any such conversions to civil positions at EOIR deserve substantial scrutiny given the Trump Administration’s pernicious attempts to implement and enforce an ideological agenda by politicizing the immigration court system.”v Below are examples of Trump administration political appointees that burrowed into career positions in just the last year.

● In May of 2020, David Wetmore was hired to be the Chief Appellate Immigration Judge.vi Prior to this position, he was a political appointee for the Trump Administration, working as the Associate Deputy Attorney General in the Office of the Deputy Attorney General and, in 2017-2018, as an immigration advisor to the White House Domestic Policy Counsel.vii While in these positions, he worked closely with Stephen Miller, the well-known architect of President Trump’s anti-immigrant policies.viii David Wetmore did not have prior experience as a judge or a manager, yet he was installed in a position that serves as the general manager of all aspects of the BIA’s operation, both legal and operational.

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● In June of 2020, Tracy Short was hired to be the Chief Immigration Judge.ix Prior to this position, Tracy Short was a political appointee for the Trump Administration working as the Principal Legal Advisor for the U.S. Immigration and Customs Enforcement (ICE).x While in this role, Tracy Short issued a memo on immigration enforcement, restricting ICE trial attorneys’ ability to exercise prosecutorial discretion, contributing to an immigration court backlog of over 1.3 million cases.xi Tracy Short did not have prior experience as a judge yet the position of Chief Immigration Judge is responsible for running all of the immigration courts and managing more than 500 immigration judges.xii

Appellate Judges, BIA Members, and Immigration Judges

Under the leadership of Trump Administration Attorneys General, the DOJ faced allegations of politicized hiring based on candidates perceived political or ideological views. On April 11, 2017, then-Attorney General Sessions announced that he “implemented a new, streamlined hiring plan” to reduce the time it takes to hire immigration judges.xiii However, the new plan amended the hiring process to provide political appointees with greater influence in the final selection of IJs. In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.” Both Senate and House Democrats requested an investigation with the DOJ Inspector General to examine allegations that DOJ had targeted candidates and withdrew or delayed offers for IJ and BIA positions based on their perceived political or ideological views.xiv Moreover, on March 8, 2019, then-Attorney General Barr approved a redesigned hiring plan for both immigration judges and the BIA which allowed EOIR to pack the courts with judges biased towards enforcement and/or with histories of poor judicial conduct.xv

The effects of such bias are evident in the makeup of the BIA and the immigration courts.

● BIA. Under the Trump administration, EOIR rapidly expanded the BIA from 17 to 23 members and appointed several immigration trial judges with troubling records of bias and/or abusive behavior to serve as appellate judges.xvi EOIR promoted primarily former immigration judges from the harshest immigration court jurisdictions with the lowest asylum grant rates in the nation.xvii According to a Reuters analysis, those appointments had ordered immigrants deported 87% of the time, compared to 58% for all other judges over the last 20 years.xviii

● Immigration Judges. The new hiring policies allowed the Trump administration to hire two-thirds of the more than 500 sitting immigration judges and an investigation by Reuters revealed that “judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan.”xix In addition to hiring an excess of former prosecutors, EOIR appointed a former employee of the Federation for American Immigration Reform (FAIR) – an organization designated as a hate group by the Southern Poverty Law Center (SPLC) – to be an immigration judge.xx

New EOIR Hires

Despite the Biden-Harris administration’s stated commitment to restoring fairness and balance to the immigration courts, the DOJ continues to rely on Trump-era policies and hiring practices that bias the immigration court system towards prosecution.xxi We are deeply concerned that instead of taking immediate steps to diversify the bench, the DOJ just appointed 17 new immigration judges and all but 1 of these judges come from enforcement-oriented backgrounds.xxii In order to begin to restore credibility to the immigration courts, DOJ and EOIR must take immediate steps to hire diverse judges who have worked for non-profits

2

or in private practice. This recommendation is consistent with a 2017 EOIR-commissioned study that advised DOJ to broaden the hiring pools and outreach programs to increase diversity of experience among judges.xxvii

Sincerely,

Advancing Justice – Asian Law Caucus

Alianza Nacional de Campesinas

American Constitution Society

American Immigration Lawyers Association American-Arab Anti-Discrimination Committee (ADC) America’s Voice

Arab American Association of New York

Bend the Arc: Jewish Action – Prince George’s County, MD Bridges Faith Initiative

CAIR-SV/CC

Capital Area Immigrants’ Rights Coalition

Catholic Charities of the Archdiocese of Washington Catholic Charities, NY // Immigrant and Refugee Services Catholic Legal Immigration Network, Inc.

Catholic Legal Services, Archdiocese of Miami

Catholic Migration Services

Center for Gender & Refugee Studies

Chhaya CDC

Cleveland Jobs with Justice

Farmworker Association of Florida

Free the People Roc

Government Accountability Project

Government Information Watch

Human Rights First

Human Rights Initiative of North Texas

Immigrant ARC

Immigrant Legal Advocacy Project

Immigrant Legal Defense

Immigrant Legal Resource Center (ILRC)

Immigration Center for Women and Children

Immigration Hub

Inland Coalition for Immigrant Justice

Interfaith Community for Detained Immigrants International Refugee Assistance Project (IRAP)

Jewish Activists for Immigration Justice of Western MA

La Resistencia

League of Women Voters of U.S.

Legal Aid Justice Center

Louisiana Advocates for Immigrants in Detention

Lutheran Social Services of New York

Make the Road New York

Maryland Legislative Coalition

Memphis United Methodist Immigrant Relief

National Equality Action Team (NEAT)

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National Immigrant Justice Center

National Immigration Law Center

National Immigration Project (NIP-NLG)

National Network for Immigrant & Refugee Rights Neighbors Link – Community Law Practice NETWORK Lobby for Social Justice

New Mexico Immigrant Law Center New Sanctuary Coalition’s Northwest Immigrant Rights Project People’s Parity Project

Public Counsel

RAICES

Refugees International

Revolving Door Project

Rocky Mountain Immigrant Advocacy Network Safe Horizon

Sikh American Legal Defense and Education Fund (SALDEF)

South Asian Americans Leading Together (SAALT)

Takoma Park Mobilization, Equal Justice Committee

TASSC (Torture Abolition & Survivors’ Support Coalition) International The Legal Aid Society (New York)

UndocuBlack Network

Unitarian Universalist Service Committee UnLocal

Women Watch Afrika

Young Center for Immigrant Children’s Rights

CC:

Jean King, Acting Director of the Executive Office of Immigration Review

Margy O’Herron, Senior Counsel, Office of the Deputy Attorney General, Department of Justice Susan Rice, Assistant to the President for Domestic Policy

Tyler Moran, Special Assistant to the President for Immigration, Domestic Policy Council Esther Olavarria, Deputy Director of the Domestic Policy Council for Immigration

i Senators Announce GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages, (Sept. 14, 2020), https://www.whitehouse.senate.gov/news/release/senators-announce-gao-investigation-of-trump- politicization-of-immigration-courts-as-covid-19-crisis-rages.

ii AILA Policy Brief: Why President Biden Needs to Make Immediate Changes to Rehabilitate the Immigration Courts, (Feb. 12, 2021), https://www.aila.org/advo-media/aila-policy-briefs/policy-brief-why-president-biden-needs- to-make.

iii Tal Kopan, Bad Conduct, Leering ‘Jokes’ — Immigration Judges Stay on Bench, San Francisco Chronicle (Jan. 22, 2021), https://www.sfchronicle.com/politics/article/Sexually-inappropriate-behavior-runs-rife-in-15889003.php. iv Tal Kopan, Immigration courts director transferred – oversaw judges on bench despite misconduct, San Francisco Chronicle, (Jan. 27, 2021), https://www.sfchronicle.com/politics/article/Immigration-courts-director-transferred- 15902142.php.

v Letter from Senator Durbin to Attorney General Garland, (Apr. 20, 2021), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20DOJ%20- %20RFI%20Trump%20Appointees%20EOIR.pdf.

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vi Executive Office for Immigration Review Announces New Board of Immigration Appeals Chairman, (May 29, 2020), https://www.justice.gov/eoir/page/file/1281596/download.

vii Felipe De La Hoz, The Shadow Court Cementing Trump’s Immigration Policy, The Nation, (June 30, 2020), https://www.thenation.com/article/society/trump-immigration-bia/.

viii Tanvi Misra, Roll Call, Tweet on July 21, 2020, https://twitter.com/Tanvim/status/1285738577087934465.

ix EOIR Announces New Chief Immigration Judge, (Jul. 2, 2020), https://www.justice.gov/eoir/page/file/1291891/download.

x Hamed Aleaziz, A Top Immigration Court Official Called For Impartiality In A Memo He Sent As He Resigned, Buzzfeed News, (Jul. 3, 2020), https://www.buzzfeednews.com/article/hamedaleaziz/immigration-court-official- called-impartiality-memo.

xi Hamed Aleaziz, An ICE Memo Lays Out the Differences Between Trump and Obama on Immigration Enforcement, Buzzfeed News, (Oct. 8, 2018), https://www.buzzfeednews.com/article/hamedaleaziz/trump-ice- attorneys-foia-memo-discretion.

xii Lydia DePillis, How Dozens of Trump’s Political Appointees Will Stay in Government After Biden Takes Over, ProPublica, (Dec. 3, 2020), https://www.propublica.org/article/how-dozens-of-trumps-political-appointees-will- stay-in-government-after-biden-takes-over.

xiii Human Rights First, Immigration Court Hiring Politicization, (Oct. 18, 2018), https://www.humanrightsfirst.org/resource/immigration-court-hiring-polticization.

xiv Congressional Letter to DOJ’s Office of Inspector General, (May 8, 2018), https://www.feinstein.senate.gov/public/_cache/files/e/f/efd39e65-d848-487c-be07- 903b481046c2/483B788842A2BF3791F0585EBACFD50A.dems-to-horowitz.pdf.

xv AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation, (May 5, 2020), https://www.aila.org/EOIRHiringPlan.

xvi EOIR Interim Final Rule, Expanding the Size of the Board of Immigration Appeals, 85 Fed. Reg. 18105 (Apr. 1, 2020), https://www.federalregister.gov/documents/2020/04/01/2020-06846/expanding-the-size-of-the-board-of- immigration-appeals; EOIR Interim Final Rule, Expanding the Size of the Board of Immigration Appeals, 83 Fed. Reg. 8321, (Feb. 27, 2018), https://www.federalregister.gov/documents/2018/02/27/2018-03980/expanding-the-size- of-the-board-of-immigration-appeals.

xvii Tal Kopan, AG William Barr promotes immigration judges with high asylum denial rates, San Francisco Chronicle (Aug. 23, 2019), https://www.sfchronicle.com/politics/article/AG-William-Barr-promotes-immigration- judges-with-14373344.php; Suzanne Monyak, Immigration Board Picks Under Trump to Set Lasting Policy, Law360, May 8, 2020, https://www.law360.com/articles/1271825/immigration-board-picks-under-trump-to-set- lasting-policy.

xviii Reade Levinson, Kristina Cooke, Mica Rosenberg, Special Report: How Trump administration left indelible mark on U.S. immigration courts, Reuters, (Mar. 8, 2021), https://www.reuters.com/article/us-usa-immigration- trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts- idUSKBN2B0179.

xix Id.

xx Colin Kalmbacher, Barr Appoints Former Research Director of SPLC-Alleged ’Hate Group’ as Immigration Judge, Law & Crime, (Jul. 18, 2020), https://lawandcrime.com/immigration/barr-appoints-former-research-director- of-splc-alleged-hate-group-as-immigration-judge/.

xxi The White House has issued several Executive Orders and proposed legislation, the U.S. Citizenship Act of 2021, conveying the Administration’s transformative vision and vision and commitment to building a 21st century immigration system that welcomes immigrants and refugees and keeps families together.

xxii EOIR Announces 17 New Immigration Judges, (May 6, 2021), https://www.justice.gov/eoir/file/1392116/download.

5

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

Thanks, friends and colleagues, for letting your collective voices for due process, human dignity, humane values, competency, common sense, racial justice, and accountability be heard! Loud and clear!

Restoring some semblance of due process, fundamental fairness, simple human decency, and competent government should NOT be so hard and time consuming in a Dem Administration that ran and was elected on promises too do just that!

The grotesque administrative incompetence and squandering of resources continuing in EOIR’s failed, “bad joke” court system demand IMMEDIATE CORRECTIVE ACTION, NOT more wasteful studying of well-documented problems for which experts have developed clear, straightforward, well-known, readily achievable, fiscally feasible solutions!

We must keep up the fight and not let up the pressure on Garland until the egregious misconduct and gross abuses at EOIR and DOJ end, progressive leadership is brought in and empowered to solve problems, and due process, expertise, and competence are restored, promoted, and honored! That’s what we voted for, not the continuing “Miller Lite” Clown Show @ EOIR! And certainly not totally inappropriate, unjustifiable continuing appointments of “Trump-list judges!” Just beyond outrageous, compounded by the lame, disingenuous, inaccurate explanation put forth by Garland’s DOJ!

Let me make it simple: NOBODY has a “RIGHT” to be an Immigration Judge! Those with legal rights are the MIGRANTS appearing before Immigration Judges. Those legal rights are being trampled every single day at EOIR under Garland just as they were under Trump! It must stop! Now!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-19-21

☠️🏴‍☠️⚰️🤮NO JUSTICE @ JUSTICE! — GARLAND ISSUES WEAK-KNEED, PERFUNCTORY “NOTHINGBURGER” PROMISING “ACCESS TO JUSTICE REFORMS” WHILE DAILY MOCKING THEM IN PRACTICE IN HIS DYSFUNCTIONAL, ANTI-DUE PROCSS, INTENTIONALLY “USER UNFRIENDLY” IMMIGRATION “COURTS” — Talk About “Lack of Credibility!”

Star Chamber Justice — “Justice”
Star Chamber Style @ EOIR; Despite the glaring problems, obvious answers, and wide availability of new progressive leadership who should already be removing the deadwood, changing ill-conceived policies, and actually SOLVING representation and other problems at EOIR — America’s most dysfunctional “court” system — Judge Garland would like to study (while ignoring) what’s wrong rather than take needed progressive action!

https://www.justice.gov/opa/pr/attorney-general-launches-review-reinvigorate-justice-department-s-commitment-access-justice

You can read it here in all of its glorious bureaucratic nothingness and hollow rhetoric:

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, May 18, 2021

Attorney General Launches Review to Reinvigorate the Justice Department’s Commitment to Access to Justice

U.S. Attorney General Merrick B. Garland today announced that the Justice Department will immediately begin work to reinvigorate its Office for Access to Justice and to restore the Justice Department’s role in leading efforts across government to seek and secure meaningful access to justice.

“Trust in the rule of law – the foundation of American democracy – depends upon the public’s faith that government seeks equal justice for all. That is the Justice Department’s core duty, and the mission upon which it was built. But without equal access to justice, the promise of equal justice under law rings hollow,” wrote Attorney General Garland in a memo to departmental leadership this afternoon.

The Attorney General directed the Justice Department’s leadership offices to immediately begin a review process that will engage all relevant stakeholders, both within the department and beyond. The review will initially explore, among other things, how the Justice Department and partners across federal, state, territorial, and tribal governments can alleviate entrenched disparities in our criminal justice system, address barriers to access in our immigration and civil legal systems, and advance health, economic, and environmental justice efforts. The Attorney General’s memo also charged Deputy Attorney General Lisa M. Monaco and Associate Attorney General Vanita Gupta with developing recommendations regarding the resources that will be required to reinvigorate the department’s Office for Access to Justice including a staffing strategy and placement within the department in light of its responsibilities.

The Attorney General will submit a detailed plan to the President for expanding the department’s role in leading access to justice initiatives across government within 120 days.

The Justice Department first launched an access to justice initiative in 2010. Building upon that important effort, the Office for Access to Justice was formally established in 2016 to plan, develop, and coordinate the implementation of access to justice policy initiatives of high priority to the department and the executive branch, including in the areas of criminal indigent defense and civil legal aid. However, during the prior administration, the office was effectively shuttered.

In addition to leading this strategic review within the Justice Department, Attorney General Garland will also help to lead access to justice initiatives across government as co-chair of the Legal Aid Interagency Roundtable, which the President reconvened today. That initiative will bring together more than two dozen federal departments and agencies to address the most pressing legal services challenges that low-income communities, communities of color, and many others across our country face today.

Component(s):

Office of the Attorney General

Press Release Number:

21-456

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

As always, actions speak louder than words or bureaucratic promises to “think about it, and get back to you!”

So hopefully somebody will ask Garland how the following things going on in HIS EOIR right now “assist access to justice:”

Continuous, ongoing “Aimless Docket Reshuffling“ at EOIR that generates an astounding, unnecessary, growing, unaddressed by Garland 1.3 million case backlog that generally disadvantages and wears down the private bar;
Elimination of reasonable continuances @ EOIR for the express purpose of favoring the DHS and making it more difficult to represent individuals in Immigration Court consistent with ethical requirements relating to adequate preparation and verification of claims;
“Courts” improperly located in obscure, out of the way DHS detention centers where lawyers are seldom readily available and substandard conditions are intentionally used to duress individuals into giving up viable claims;
Court schedules controlled by unqualified bureaucrats in Falls Church who arbitrarily and capriciously set cases without regard to the needs of parties for preparation time, ethical guidelines, or their workloads;
Unreasonable, shortened, cookie cutter “briefing schedules,” designed to expedite removals at the expense of quality and legal excellence and to artificially “stress out” private attorneys, many serving pro bono or low bono;
Kids and other vulnerable individuals forced to “represent” themselves in Immigration Courts;”
“Judges” who lack immigration expertise and practical experience, therefore forcing already overburdened immigration counsel to “train” these judges, who never should have been appointed in the first place;
Hiring of “judges” at the trial and appellate level renowned for their hostility to asylum seekers (particularly women and those of color) and sometimes with established records of bias, rudeness, hostility, and unprofessional conduct toward the private bar;
Systemic exclusion of private bar immigration, human rights, clinical advocates and experts from the Immigration Judiciary;
Bogus, due-process-denying “deportation quotas” that discourage scholarship and thoughtful complete litigation of life or death cases in favor of meeting artificial production requirements and timelines designed to keep the “EOIR deportation railroad” running;
Promulgation of “operating produces” for Immigration Courts by Falls Church bureaucrats who have never appeared in Immigration Court, without prior consultation with either sitting Immigration Judges or “stakeholders” in the private bar;
Failure after two decades of wasted effort and false starts to implement even a rudimentary nationwide e-filing system, thereby increasing the burden on private practitioners;
Wrong-headed, anti-immigrant “precedents” intended to discourage individuals from pursuing claims in Immigration Court and to require advocates to appeal to Courts of Appeals to have any chance of obtaining justice for their clients;
Following of “worst practices” designed to abuse and increase the stress for advocates in Immigration Court, including failure to follow best health and sanitation practices;
Failure to have any qualified progressive immigration practical scholar “on staff” at DOJ who has actually practiced before the Immigration Courts and could credibly lead the reform effort.

Actually, I’m just getting started! But, I have other things on my agenda today, and you get the point!

Unless progressive immigration advocates “raise hell” with the higher-up in the Biden Administration and on the Hill about Garland’s gross mismanagement of EOIR to date and his lack or expertise or genuine interest in long overdue, badly needed reforms, this is just another Dem “designed to fail” cosmetic effort; yet another insulting attempt by DOJ to fob off immigrants, the private bar, progressives, and their very legitimate needs with more BS “all talk, no action” ineffective policies and plans where immediate, radical progressive, due process reforms are needed, led by progressive experts!

To state the painfully obvious, Vanita Gupta has enough knowledge and enough contacts in the human rights/civil rights community to have gotten someone from the outside in to take control of EOIR, empowered to knock heads, transfer the Trump/Miller anti-due-process “denial club” crowd and their enablers out, and start recruiting and hiring competent administrators, well-qualified progressive judges, and instituting due process enhancing procedures. Things should already be operating much better; and, as many of us told the Biden Transition Team, having “due process take hold and start acting” would send much needed “shock waves” throughout the “go along to get along” bureaucracy at EOIR who assisted Trump and Miller in putting the “final nail in the coffin” of the already-reeling Immigration Courts.

Advocates and members of the NDPA, the first step in vindicating your clients’ legal rights is to insist that your rights, professionalism, and expertise be respected by those in power. Team Garland is effectively “giving you the big middle finger!” 🖕 If you don’t stand up to this outrageous, dismissive treatment from a Dem Administration, how can you make things better for your clients?

🇺🇸🗽⚖️Due Process Forever!

PWS

05-19-21

THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List:

EOIR plans to resume non-detained hearings on July 6 at the following immigration courts: Dallas, El Paso, Ft. Snelling, Harlingen, Houston, Houston – S. Gessner Road, Houston – Greenspoint Park Drive, Kansas City, Memphis, New York – Broadway, New York – Federal Plaza, New York – Varick, Portland, San Antonio, and San Juan. Hearings in non-detained cases that are scheduled at the aforementioned courts are postponed through July 3. Noncitizens (or representatives who have entered an appearance with the court) who have not received a notice of reset hearing by June 22 should expect scheduled hearings to proceed. As of July 6, 2021, all immigration courts will be holding limited hearings, applying relevant Federal best practices related to communicable disease.

For cases scheduled from July 6 through July 30, parties (or their representatives who have entered an appearance with the court in a case) who have not received notice of a reset hearing by June 22 should plan to attend their hearing as scheduled. All parties, including those with cases scheduled after July 30, should continue to rely on official notices from the immigration court as the best source for information regarding their hearings

Please note that the option to file by email at the above-listed courts will end on Sept. 4, 2021.

TOP NEWS

From India, Brazil and Beyond: Pandemic Refugees at the Border

NYT: Most of them are from Central America, fleeing gang violence and natural disasters. But the past few months have also brought a much different wave of migration that the Biden administration was not prepared to address: pandemic refugees. They are people arriving in ever greater numbers from far-flung countries where the coronavirus has caused unimaginable levels of illness and death and decimated economies and livelihoods.

Biden revokes Trump order on immigrants’ health care costs

Politico: President Joe Biden on Friday shot down a Trump proclamation that blocked potential immigrants deemed to be a “financial burden” on the nation’s health care system from coming to the United States, saying it didn’t align with U.S. interests.

Biden ends Trump ban on pandemic aid for undocumented college students

Politico: Education Secretary Miguel Cardona on Tuesday finalized a new regulation that allows colleges to distribute tens of billions in federal pandemic relief grants to all students, regardless of their immigration status or whether they qualify for federal student aid.

Biden meets DACA recipients in immigration overhaul push

WaPo: President Joe Biden met Friday with six immigrants who benefited from an Obama-era policy that protected those brought to the U.S. illegally as children. The president is trying to turn attention toward overhauling the nation’s immigration laws, but it’s an issue he has made scant progress on in the first months of his presidency.

Feinstein Asks Garland To Review, Expand Asylum Eligibility

Law360: U.S. Sen. Dianne Feinstein, D-Calif., urged U.S. Attorney General Merrick Garland to overturn his predecessors’ decisions that restricted asylum eligibility for victims of domestic and gang violence, saying those decisions disregarded refugee protections established 40 years ago.

Documents Show Trump Officials Used Secret Terrorism Unit to Question Lawyers at the Border

ProPublica: In newly disclosed records, Trump officials cited conspiracies about Antifa to justify interrogating immigration lawyers with a special terrorism unit. The documents also show that more lawyers were targeted than previously known.

Border arrests rose slightly in April, but fewer minors crossing without parents eases pressure on Biden administration

WaPo: Immigration arrests and detentions along the U.S.-Mexico border rose slightly in April to 178,622, the highest one-month total in two decades, according to U.S. Customs and Border Protection data published Tuesday, but a decline in the number of teens and children arriving without parents eased pressure on the Biden administration.

Biden admin reroutes billions in emergency stockpile, Covid funds to border crunch

Politico: The Department of Health and Human Services has diverted more than $2 billion meant for other health initiatives toward covering the cost of caring for unaccompanied immigrant children, as the Biden administration grapples with a record influx of migrants on the southern border.

Afghans who helped the US now fear being left behind

WaPo: The fate of interpreters after the troop withdrawal is one of the looming uncertainties surrounding the withdrawal, including a possible resurgence of terrorist threats and a reversal of fragile gains for women if chaos, whether from competing Kabul-based warlords or the Taliban, follows the end of America’s military engagement.

Many Unvaccinated Latinos in the U.S. Want the Shot, New Survey Finds

NYT: The findings suggest that their depressed vaccination rate reflects in large measure misinformation about cost and access, as well as concerns about employment and immigration issues, according to the latest edition of the Kaiser Family Foundation Covid-19 Vaccine Monitor.

“Is Stephen Miller still in charge?”: Biden’s first immigration court appointees are all Trump picks

Salon: Nearly all the judges on the Justice Department list have backgrounds as prosecutors or as counselors at Immigration and Customs Enforcement (ICE), while nearly none have any experience defending migrants.

Now Over 8,000 MPP Cases Transferred Into United States Under Biden

TRAC: MPP cases assigned to the Brownsville, Texas hearing location continued to show the highest proportion of individuals allowed to enter the U.S.: 45 percent. However, MPP cases from Laredo, Texas which had been scheduled to start its processing over a month later made up a lot of lost ground by the end of April. Only 3 percent of its cases had been transferred into the U.S. at the end of March to await their Immigration Court hearings.

LITIGATION/CASELAW/RULES/MEMOS

New EOIR Memos Dismantling MPP

PM 21-19 (PDF) Cancellation of Policy Memoranda 19-02 (Guidelines Regarding New Regulations Governing Asylum and Protection Claims) and 19-03 (Guidelines Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States)

PM 21-20 (PDF) Cancellation of Policy Memorandum 19-12 (Guidance Regarding New Regulations Governing Asylum and Protection Claims)

PM 21-21 (PDF) Cancellation of Policy Memorandum 20-04 (Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews)

PM 21-22 (PDF) Cancellation of Policy Memorandum 21-09 (Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements)

Rescheduling Biometric Services Appointments by Phone

USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that applicants, petitioners, requestors and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center.

CA3 Holds That IJs and the BIA Have General Authority to Administratively Close Cases

The court held that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. (Arcos Sanchez v. Att’y Gen., 5/5/21) AILA Doc. No. 21051432

CA3 Says IJs Have Jurisdiction over Removal Proceedings Started by a Notice of Referral to an IJ Lacking Time and Place Information

Denying the petition for review, the court held that an IJ is not deprived of jurisdiction under 8 CFR §1003.14 over removal proceedings commenced by a Notice of Referral to an IJ that lacks time and place information. (Mejia Romero v. Att’y Gen., 5/5/21) AILA Doc. No. 21051433

CA3 Finds Sri Lankan Army’s Mistreatment of Petitioner Did Not Rise to Level of Past Persecution

The court held that petitioner’s 2007 detention and beating by the Sri Lankan army did not constitute past persecution, and that extortion attempts by the Eelam People’s Democratic Party (EPDP) of Sri Lanka were not motivated by an imputed political opinion. (Thayalan v. Att’y Gen., 5/10/21) AILA Doc. No. 21051438

CA3 Finds That Conviction for Second-Degree Robbery in New Jersey Is an Aggravated Felony Theft Offense

The court held that the petitioner’s 2000 conviction for second-degree robbery in New Jersey constituted an aggravated felony theft offense under INA §101(a)(43)(G), and thus found that the petitioner was ineligible for asylum and withholding of removal. (K.A. v. Att’y Gen., 5/4/21) AILA Doc. No. 21051435

CA8 Says a Grant of TPS Does Not Excuse INA §240A(a)’s Admission Requirement for TPS Recipients

The court held that petitioner’s grant of Temporary Protected Status (TPS) did not remove the need for him to show that he was admitted in order to be eligible for cancellation of removal, and that his grant of TPS was not an admission for cancellation purposes. (Artola v. Garland, 5/5/21) AILA Doc. No. 21051439

CA9 Bucks Precedent For Immigrants With Citizen Parents

Law360: U.S. residents who are not granted legal permanent residency before they turn 18 can still get citizenship through their naturalized parents, a split Ninth Circuit ruled Thursday in a published en banc opinion that reexamined court precedent.

CA9 Defers to BIA’s Permissible Interpretation of Ambiguous “Date of Admission” Phrase in INA §237(a)(2)(A)(i)(I)

The court held that, for purposes of removability for crimes involving moral turpitude (CIMT), the phrase “the date of admission” in INA §237(a)(2)(A)(i)(I) is ambiguous, and the BIA’s interpretation of the phrase in Matter of Alyazji was permissible. (Route v. Garland, 5/6/21) AILA Doc. No. 21051440

CA9 Holds That Petitioner’s Asylum Application Was Abandoned Based on Her Failure to Submit Required Biometrics

The court upheld the BIA and IJ’s conclusion that the petitioner’s application for asylum and related relief had been abandoned under 8 CFR §1003.47(c) based on her failure to submit biometrics or establish good cause for her failure to do so. (Gonzalez-Veliz v. Garland, 5/4/21) AILA Doc. No. 21051437

CA9 Revives Asylum Case Over Reading Disability

Law360: An El Salvadoran woman who can’t read and whose family mixed up the month and day of her immigration court hearing can seek asylum again, after the Ninth Circuit ruled that her exceptional circumstances warranted a second shot.

CA11 Says BIA’s Determination That Petitioner Was Ineligible for Preconclusion Voluntary Departure Was Within Its Independent Discretion

Where petitioner argued that an IJ had failed to inform him he could apply for preconclusion voluntary departure, the court found it lacked jurisdiction to consider his petition, because the BIA had ruled that preconclusion voluntary departure was not warranted. (Blanc v. Att’y Gen., 5/11/21) AILA Doc. No. 21051436

Activists Ask 9th Circ. For Enviro Review Of DHS Programs

Law360: Conservation groups backed by an anti-immigration think tank asked the Ninth Circuit Tuesday to revive their claims that certain U.S. Department of Homeland Security immigration programs must undergo environmental review, arguing a review exemption leads to higher immigration numbers, which then drives ecological degradation.

Google files legal brief to protect work program for immigrant spouses

Verge: While that ban never came to pass, the ability for people with H-4 visas to work is still under threat from a lawsuit against the federal government. The suit, called Save Jobs USA v. US Department of Homeland Security, was brought by tech workers, who argue that H-4 holders are unfair competition for Americans looking for jobs.

Another Twist on Niz-Chavez

ImmProf: The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes”.

DHS Announces Process for Identifying Humanitarian Exceptions to Title 42

DHS released a statement noting that it is “working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant humanitarian exceptions” under the CDC Order issued under its Title 42 public health authority. AILA Doc. No. 21051330

CIS Ombudsman’s Office Issues Reminder for DACA Renewals

The CIS Ombudsman’s Office issued a reminder that individuals who are eligible to renew their DACA and employment authorization may submit their renewal request between 150 days and 120 days before the expiration on their current Form I-797, Notice of Approval, and on the EAD. AILA Doc. No. 21051035

DHS OIG Issues Report on CBP Senior Leaders’ Handling of Social Media Misconduct

DHS OIG found that from 1/1/16 through 6/30/19, 83 CBP employees violated CBP policies and guidance by posting, or commenting on, offensive content on various social media platforms. DHS OIG, however, found no evidence that senior CBP leaders were aware of more than a few of the cases, and determined that CBP and Border Patrol headquarters officials took no action to prevent further misconduct, except when directed to do so by DHS. DHS OIG found no evidence that senior CBP headquarters or field leaders were aware of offensive content posted to a private Facebook group until reported by the media in July 2019. AILA Doc. No. 21051441

ACTIONS

USCIS Request for Public Input on Reducing Administrative Barriers: Comments are due 5/19 2021.

EOIR 60-Day Notice and Request for Comment on Proposed Revisions to Form EOIR-26A: comments due 5/28/21.

DHS 60-Day Notice and Request for Comments on New “Public Perceptions of Emerging Technologies” Survey: Comments are due 7/12/21.

· New York For All Virtual Lobby Day 5/20/2021

Sign-On: Haiti TPS Redesignation

Sign-On: MPP Wind Down Letter 2 – Organizational Sign On

Sign-On: End SIJS Backlog

Sign-On: Repeal of Trump’s Draconian Fee Increases for Immigration Court and BIA Filings

RESOURCES

ACLU: Stories of People Released from ICE Detention During the COVID-19 Pandemic

AIC: Right to Appointed Counsel for Children in Immigration Proceedings

AILA: The Ethics of Representing a Client in Person During the Pandemic

AILA: Practice Pointer: How to File DHS OBIM FOIA Requests

CLINIC: Practitioners’ Guide to Obtaining Release From Immigration Detention

CRS: Temporary Protected Status and Deferred Enforced Departure

HRF: Biden Administration Title 42 Expulsions of Families and Adults to Nuevo Laredo Fuel Kidnappings and Endanger Lives

IDP: Legal Analysis of April 27, 2021 DHS Memorandum

ILRC: DACA: Continuous Residence

NIP/NLG: The INA’s Distorted Definition of “Conviction”

NYCBA: Recording – 100 Days: Accountability on Immigration

Tahirih: Adding Gender as a Sixth Ground of Asylum FAQ

USCIS: The CIS Ombudsman’s Webinar Series: USCIS’ Online Filing and Customer Service Tools Follow Up Questions and Answers

EVENTS

5/17/21-5/20/21 CLINIC Convening 2021

5/18/21 DOJ Recognition & Accreditation

5/18/21 Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/19/21 EOIR to Host National Stakeholder Meeting

5/19/21 Phase 1 of a SIJS case: the intersection of immigration law and family law

5/19/21 Jurisdictional Issues in the Federal Court of Appeals

5/19/21 COVID-19 LPR Admission Issues/Consular Practice Updates with AILA’s CBP and DOS Committees

5/20/21 Understanding your Client’s Contact with the Criminal Legal System in New York City

5/20/21 A Trauma-Informed, Anti-Rascist Approach to Legal Advocacy

5/21/21 Virtual Immigration Representation: Practical And Ethical Considerations

5/24/21 What Every Non-Immigration Lawyer Should Know About Immigration Law

5/26/21 Hot Topics in Removal Defense

5/26/21 “Immigration Relief Under the Violence Against Women Act”

5/27/21 Handling Your First Pro Bono Asylum Case

6/1/21 VAWA Adjustment of Status Fundamentals

6/2/21-6/23/21 CLINIC Webinar Series: Overview of Immigration Consequences of Crimes

6/3/21 Steps to Analyze the Immigration Impact of Criminal Contact and Convictions for Immigrant Clients

6/8/21-6/29/21 CLINIC Webinar Series: Citizenship and Naturalization

6/9/21-6/11/21 ‘Ageing Gracefully? The 1951 Refugee Convention at 70’

6/9/21-6/12/21 2021 AILA Virtual Annual Conference on Immigration Law

6/9/21 Hot topics: Adjudication and Enforcement Trends

6/10/21 Public Charge and Hot Topics in Consular Processing

6/14/21 Taxes at the Border: Understanding the Tax Consequences of Immigration Status

6/15/21 U Visa Hot Topics

6/15/21 Motions to Reopen in Immigration Court: Part III – VAWA Self-petitioners

6/16/21 Phase 2 of a SIJS case: Preparation & submission of the immigration forms to USCIS

6/17/21 Practice tips for representing clients with criminal legal system contacts in affirmative applications

6/22/21 EADs and Delays in Work Authorization for Your Family– and Employment-Based Clients

6/22/21 Defending Immigration Removal Proceedings 2021

6/25/21 Understanding and Screening for Statelessness

6/30/21 Immigration Update – June 2021

7/7/21-7/21/21 Webinar Series: Navigating Refugee and Asylee Issues

7/8/21-7/29/21 Webinar Series: Overview of Removal Proceedings and Orders of Removal

7/21/21 The ethics of dual representation (child and guardian) in SIJS practice

7/22/21 PLI: Defending Immigration Removal Proceedings 2021

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, May 17, 2021

LSA 2021 Citizenship and Migration Panels (Day 1)

Immigration Article of the Day: “Who Does America Want” by Jarienn James

Sunday, May 16, 2021

CNN Follows Brothers & People Smugglers in Ciudad Juarez

Immigration Article of the Day: Help Me to Find My Children: A Thirteenth Amendment Challenge to Family Separation by Ndjuoh Mehchu

Saturday, May 15, 2021

Glaswegian Crowd Rallies To Release Migrants Caught in Raid on Eid

The Racist Roots of the Anti-Immigration Tanton Network

Documents Show Trump Officials Used Secret Terrorism Unit to Question Lawyers at the Border

Immigration Article of the Day: Protecting Mixed-Status Families: Equal Protection Analysis of the Social Security Number Requirement by Nena Gallegos

President Biden Continues Trump Rollbacks

Friday, May 14, 2021

Bringing Racial Justice to Immigration Law

Another Twist on Niz-Chavez . . . by Geoffrey Hoffman

Immigration Article of the Day: Executive Control of Agency Adjudication: Capacity, Selection and Precedential Rulemaking by David Hausman, Daniel E. Ho, Mark Krass, and Anne M. McDonough

Cambridge Negotiation Institute Roundtable – The Role of Negotiation in the Migration Crisis

Thursday, May 13, 2021

A Journey of Hope: Haitian Women’s Migration to Tapachula, Mexico

Wednesday, May 12, 2021

The Invisible Wall: Title 42 and its Impact on Haitian Migrants

Staff attorney wanted at the Safe Passage Project (Long Island)

Did Trump Immigration Policies Contribute to Tight Labor Market?

Biden ends Trump ban on pandemic aid for undocumented college students in need

Immigration Article of the Day: El Salvador: Root Causes and Just Asylum Policy Responses by Karen Musalo

Tuesday, May 11, 2021

Webinar: Public Attitudes towards Immigration and Immigrants

From the Bookshelves: After the Last Border by Jessica Goudeau

NBER Report: Immigrants Benefits Educational Performance of U.S. Born Students

From the Bookshelves: The Racial Muslim: When Racism Quashes Religious Freedom by Sahar F. Aziz

Leading Newspapers Call for Meaningful Reform of Immigration System

Biden Administration to Continue International Entrepreneur (IE) parole program

Immigration Article of the Day: Immigration Detention and the Illusory Alternatives to Habeas by Fatma Marouf

Monday, May 10, 2021

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Thanks, Elizabeth!

Two items of particular interest: First the article from Igor Derysh in Solon ripping Garland’s inexcusable “Miller Lite” hiring practices at EOIR. I am quoted, among others.

What’s the purpose of winning an election if this guy remains in charge of EOIR? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

The absolute stupidity and betrayal of awarding the Administration’s precious first 17 Federal Judicial positions to lesser qualified, non-progressive individuals hired under tainted, exclusionary, biased, restrictionist practices established by Sessions and Barr under Miller’s negative leadership should outrage all progressives and members of the NDPA. Progressives must demand that the Biden Administration get some due-process oriented, progressive competence installed at the DOJ to straighten out EOIR — a job that to date has proved to be beyond Garland’s ability!

They might also replace Garland’s incompetent “immigration PR team” at DOJ which continues to feed us BS and recycled Trump Administration propaganda that anybody with any familiarity with the Immigration Courts could tell you is pure, unadulterated BS! How insulting!

The millions of folks, including lawyers, caught up in EOIR’s web of restrictionist malicious incompetence deserve better than the insultingly tone-deaf Garland has delivered. Much better!

Progressive reform at EOIR is possible, and it isn’t a profound or long term project. Garland obviously isn’t up to the job. But, there are lots of progressive legal stars out here who can get the job done!

This also illustrates the continuing problem of Dem Administrations appointing AGs who are not experts in immigration and due process and who therefore fail to prioritize progressive immigration, human rights, and due process reforms. Far from being an “afterthought” or “low priority” these are the keys to equal justice and racial justice in America and probably the essential reforms on which the future of our entire democracy depends!

It also illustrates my point that in the future, nobody should become Attorney General, Secretary of DHS, an Article III Federal Judge, or an Immigration Judge unless they have represented individuals in Immigration Court — the critically important “retail level” of our justice system where the “rubber meets the road” of American justice. Right now, the “car is running on four flats” while Garland proves unable to change the tires!

We can’t afford any more of Garland’s “Amateur Night at the Bijou” approach to immigration, human rights, due process, personnel, and racial justice in America!

Second, the article about the grotesquely illegal abuse of the immigration bureaucracy by the Trump DHS to target and harass lawyers defending the due process rights and humanity of migrants shows just how deeply the cancer of the Trump kakistocracy penetrated into the broken immigration bureaucracy. Just another example of how completely broken, corrupt, and dysfunctional that bureaucracy has become.

It also demonstrates the treacherous stupidity of Garland continuing to tolerate problematic Trump/Miller “holdovers” and actually appointing “same old, same old” non-progressives recruited under Barr, Miller, and Trump to key “life or death Federal Judgeships.”

Additionally, it raises the question of how on earth will Garland’s DOJ effectively and credibly investigate racial justice issues in local policing and elections while Garland is running a White Nationalist, racist, misogynist, grotesquely unfair, regressive, “worst practices court system”at EOIR. Racial justice and competency reform needs to start “at home” — with Garland’s “wholly owned court system” that bears little or no resemblance to a “court of justice!”

Progressives who played a key role in electing Biden and Harris, on the basis of promises to return due process and progressive expertise to the Immigration Courts, and effectively getting Garland his job, need to make their opposition to Garland’s indolent, inexcusable, mis-handling of EOIR known to the Biden Administration and Dem leaders on the Hill! It’s time for progressives and due process advocates to stop letting yourselves be abused by those you have put in power!

This is NOT OK!

🇺🇸⚖️🗽Due Process Forever!

PWS

05-19-21

REBEKAH WOLF @ AMERICAN IMMIGRATION COUNCIL ECHOES MY CRITICISM OF GARLAND’S INEXCUSABLE FAILURE TO PROMOTE DIVERSITY, SELECT PROGRESSIVE EXPERTS IN INITIAL IJ PICKS — A Wasted Opportunity That Neither Progressives Nor The Biden Administration Can Afford!

https://immigrationimpact.com/2021/05/13/immigration-judges-under-biden/

First Round of Biden Immigration Judges Fails to Increase Diversity

Posted by Rebekah Wolf | May 13, 2021 | Due Process & the Courts, Immigration Courts

The Biden administration announced its first round of immigration judge appointments on May 6. Unfortunately, the immigration court appointments do not show the commitment to diversity that President Biden has demonstrated in his federal court appointments.

All of the new judges had received conditional offers from the Trump administration. The current administration was under no obligation to continue with the appointments, however. Advocates expressed disappointment in the hires and lack of balanced perspectives and backgrounds. Most of the 17 new immigration judges have experience as prosecutors and/or working for U.S. Immigration and Customs Enforcement (ICE)—and no experience defending immigrants.

Of the 17 new immigration judges, seven have worked for ICE and five have worked as prosecutors. Only two have worked as immigration defense attorneys, both of whom have also worked for ICE. The perceived bias of having worked for years on one side is concerning enough. But many of the appointees also do not have the substantive knowledge some believe is necessary for the position.

Former Immigration Judge Paul Schmidt commented on the appointments, saying:

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring.”

The appointments include one Assistant Chief Immigration Judge (ACIJ) and six supervisory Unit Chief Immigration Judges (UCIJs), a newly invented position. The UCIJs, only one of whom has a background in immigration law, will be working from a new Immigration Adjudication Center (IAC) in Richmond, Virginia. Like at the two existing IACs, these new immigration judges will hear cases by video-teleconference in office buildings that are closed to the public. Litigation is pending over the government’s failure to provide public information on IACs.

Immigration judge appointments strongly affect immigration court decisions. The Trump administration appointed approximately two-thirds of the 520 current immigration judges. With these new judges and along with significant court policy changes, the asylum denial rate increased from 54.6% in fiscal year 2016 to 71.6% in fiscal year 2020.

The number of immigration judges Biden appoints will also affect the immigration court backlog, currently at 1.3 million cases. Biden’s proposed budget calls for hiring 100 new immigration judges, which many experts say is insufficient. Still, the need for expediency in hiring additional judges cannot outweigh the need for a balance of experience on the bench.

Over a million people are involved in an immigration court system that is inconsistent and unfair. The Biden administration should apply its commitment to judicial diversity to immigration judge appointments, especially a diversity in perspectives and experience.

Ultimately, immigration courts will not be free of the bias inherent to being part of the same branch responsible for prosecution. As advocates have longed called for, Congress must establish Article I immigration courts for immigration proceedings to be truly fair and independent.

FILED UNDER: immigration judges

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To date, Garland’s lousy performance @ DOJ gets an “F.” Simply not acceptable with lives on the line!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-18-21

DEADLY ☠️ EOIR CLOWN SHOW 🤡 PLAYS ON UNDER BIDEN — ACIJ’S “Exit Interview” By SF Chron’s Tal Kopan Reveals Total Dysfunction, Systemic Abuse Of Human Rights, Waste Of Taxpayer Funds By Stunningly Incompetent DOJ — Other Than A Few Cosmetic Changes, Garland Enables Trump’s Abuses & Uses Barr’s Discredited, Politically & Racially Suspect “Judicial” Hiring Practices, Fails To Establish Due Process, Best Practices, Professionalism, Expertise, Respect For Human Dignity As Overriding Values! — Garland Presides Over “A ‘soul-crushing bureaucracy’ . . . shockingly unlike the regular American legal system.”🤮 Why Is He Ignoring Pressing Need For Progressive Reforms, Due Process Dedicated Judges?

EYORE — “Eyore In Distress” — “Help, help, help, help! I’ve fallen, and I can’t get up!”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

From Tal:

Exclusive: Outgoing SF immigration judge blasts courts as ‘soul-crushing,’ too close to ICE

By Tal Kopan

When William Hanrahan decided to take a job managing the San Francisco immigration court last year, he hoped he could “do some good” by bringing his expertise to resolving the legal morass many U.S. migrants must navigate to stay in the country.

He knew the justice system well. He had spent 20 years as a prosecutor and more than a decade as a state judge, including two years as a chief judge, and taught law on the side for 13 of those years. He’d worked in both criminal and civil law.

But Hanrahan said he encountered a “soul-crushing bureaucracy” that he found shockingly unlike the regular American legal system. After little more than a year in the job, he called it quits this month, frustrated, he said, with a system run by the U.S. Department of Justice and subject to its political whims, a top-down management style that throttled innovation and slow-walked modernizing reforms, and a disconcerting proximity to the Immigration and Customs Enforcement attorneys who act as the court’s prosecutors.

“There needs to be a wholesale reform,” Hanrahan said. “On a daily basis I really felt I was being forced to rearrange the deck chairs on a ship that was going down.”

Hanrahan’s last day as Assistant Chief Immigration Judge was May 7, capping a 14-month tenure as the top manager overseeing the 25 immigration judges and dozens of staff at the San Francisco court. Before that, he was a county assistant district attorney, state assistant attorney general, state circuit court judge and chief circuit court judge during a 30-year career in Wisconsin. He also taught law as an adjunct professor at three Wisconsin colleges and universities.

He spoke with The Chronicle in an exclusive interview about what he said were perplexing management decisions and failures of court administration, exacerbated by seemingly daily “absurdities.” Sitting immigration judges are prohibited by the Justice Department from talking to the press, so Hanrahan’s insights provide a rare account from inside the courts into dysfunction that has long been described by the immigrant advocacy community.

More: https://www.sfchronicle.com/politics/article/Exclusive-Outgoing-SF-immigration-judge-blasts-16183235.php

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Thanks, Tal! Those with SF Chron access should read the full article at the link!

Shocking as this is, it’s no surprise to those of us who have been following the unseemly demise of EOIR and its daily perversions of the basics of due process, human decency, and competent government!

The problems are well documented; the solutions well developed and widely distributed; the experts to fix the system available, mostly from the private sector! There is no need for more “study” and dawdling from Garland!

What is stunning and infuriating is Garland’s abject failure to stand up for human rights, human decency, the rule of law, and to bring in the progressive experts who will shake up this national disgrace from top to bottom, get rid of the deadwood, can the bad rules, vile precedents, and bloated unnecessary bureaucracy, and put some humanity, scholarship, fairness, and professionalism back in this ungodly, deadly, and completely unnecessary mess!

Not rocket science!🚀 So, why hasn’t Garland gotten the job done?

🗽⚖️🇺🇸Due Process Forever!

PWS

05-17-21

🗽DR. YAEL SCHACHER: The Biden Administration Must Restore The Rule Of Law At The Border — With Recommendations For Action! — Experts Continue To Provide Blueprints For Garland & Mayorkas To Ignore As The Biden Administration Bobbles Chances For Life-Saving, Democracy-Preserving, Racial & Gender Justice Reforms @ EOIR & DHS!

https://www.refugeesinternational.org/reports/2021/5/11/addressing-the-legacy-of-expedited-removal-border-procedures-and-alternatives-for-reform

Introduction

Though he has already revoked some of the former administration’s highly restrictive policies on asylum, President Biden has thus far left in place an expulsion policy first imposed by the Trump administration under Title 42 of the U.S. Code, and based on the unreasonable assertion that public health requires such restrictive measures be essentially directed at asylum seekers. Ports of entry have remained closed to asylum seekers except to a select few exempted from Title 42 in response to a lawsuit challenging the policy. This month, the Biden administration moved to expand the humanitarian exemption process further, tasking NGOs with identifying vulnerable migrants in Mexico and getting information about them to U.S Customs and Border Protection officials (CBP) in order to speed processing at ports. In addition, since February, Mexico’s refusal to accept back expelled Honduran, Salvadoran, and Guatemalan families with young children has meant that the Border Patrol has released some families and allowed them to proceed to their destinations—often the homes of relatives—to pursue their claims for asylum there. This is currently a practice borne of the necessity of limiting congregate detention during the pandemic. But a return to the pre-existing policy and practice—a border screening process called expedited removal—will recreate long-standing problems, and the Biden administration should now consider alternatives.

Under expedited removal, border officials are tasked with asking migrants who lack valid travel documents about their fear of return to their home country and with referring them to preliminary interviews with asylum officers if they express this fear. U.S. asylum officers assess whether the migrants have “a credible fear” of persecution—that is, a significant possibility of establishing eligibility for asylum. If they fail this interview, they are removed or remain detained (without real access to counsel) for a review by an immigration judge within seven days. A negative decision by a judge is final and leads to removal. A positive credible fear decision leads the Department of Homeland Security (DHS) to place the asylum seeker in full (non-expedited) proceedings designed to secure the “removal” of unauthorized migrants, and the asylum seeker must then prove to an immigration judge (who works for the Executive Office of Immigration Review in the Department of Justice) that they merit refugee status.

Expedited removal created an entirely “defensive” system—whereby asylum seekers are presumed removable. It is also an adversarial system, and, as applied, has undermined the right to seek asylum at the border and recognition that asylum is a legal pathway to protection regardless of status. For example, prior to a determination of eligibility, U.S. officials have criminally prosecuted those who have sought refuge but have been without travel documents or have entered without inspection. Many arriving asylum seekers get screened out even before credible fear assessments can be made, as they have been unfairly rejected by CBP officers who did not ask them about fear or inform them of their right to seek protection. Those who CBP refer for credible fear interviews are required to show they can meet a complex legal protection standard just after arrival and while detained; those denied at the credible fear stage have inadequate opportunity for appeal. Expedited removal has cut off access to the federal courts for border arriving asylum seekers; as a result, asylum jurisprudence is left to develop without addressing protection issues raised by a large majority of today’s asylum seekers. In practice, expedited removal has limited the ability of Central Americans in particular to obtain access to protection and fair assessments of their asylum claims, and many have been removed to life-threatening danger.

Expedited removal has been justified as a means to promote efficiency in asylum processing. Yet over the last decade, when large numbers of families have come to the border to seek refuge, expedited removal has proven extremely inefficient. President Trump expanded expedited removal—extending its application far beyond the border (anywhere within the United States to anyone present for less than two years without authorization), putting credible fear interviews in the hands of enforcement officers, and raising eligibility standards.

On February 2, 2021, President Biden issued Executive Order 14010 on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” The Executive Order called for a review of the use of expedited removal within 120 days. The Order suggests that the Biden administration intends to implement expedited removal in a way that is more efficient and respectful of due process after the lifting of Title 42. For reasons described in this brief, it is highly questionable that such a system will prove to be fair or even effective and workable. Thus, this issue brief suggests alternative ways the United States can have a fair and efficient system that better fulfills its obligation to provide access to protection at the border. A different reception system at the border is an essential component of a new, comprehensive, protection-oriented approach to migration from Central America.

. . . .

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

Read Yael’s full paper at the link.

I think the Administration could and should have taken a much quicker and more aggressive approach to restoring the rule of law at the border. In the more than six months since the election, the Biden Administration could have reached out to the private/NGO sectors, as well as identifying qualified due process and human rights experts already on the USG payroll, who could have re-established legal asylum screening ART USCIS and reinstituted due process and the rule of law at EOIR while longer term reforms and more permanent personnel recruitments and selections were being made.

Why are brilliant experts like Yael and many others still writing papers and making suggestions (that the Administration insultingly ignores or fobs off) instead of leading from the inside and solving problems on a daily basis? What a waste of brainpower and opportunity for immediate improvment, not to mention the human lives and national values being “flushed down the toilet”🚽 at EOIR and DHS every day!

Why are inferior “Miller Lite Holdover” candidates, recruited under a badly flawed and much criticized process, being selected by Garland at EOIR, when a potentially far superior and more diverse group of experts from the NDPA could be attracted and hired under a legitimate recruitment process that targets the many underrepresented pools of talent for key jobs at DHS and DOJ?

It is a priority, and it’s not rocket science!🚀 But, it will remain beyond the capabilities or priorities at DOJ and DHS unless or until the Biden Administration brings in some better personnel and experts to solve the problems!

Neither Garland nor Mayorkas has put the “A-Team” in place, despite lots of recommendations that they do so and the pools of far better personnel readily available in the private sector and outside the “Miller-Restrictionist In-Team” that systematically abused and disrespected immigrants’ and human rights over the past four years!

It’s frustrating to watch yet another Dem Administration unnecessarily screw up immigration law and policy. It also costs human lives and undermines the future of our national democracy.☠️⚰️👎🏻

🇺🇸⚖️🗽Due Process Forever!

PWS

05-17-21

UNCONFIRMED, BUT “ON THE STREET” — TOTAL INSANITY? — Heard On The “Rumor Mill” — Unconfirmed Reports That Garland Is About To Appoint Trump Tea Party Politico To Top Judicial Post In NYC!

Was this guy

Really this guy

In disguise all along?

An anonymous source reports:

As a follow-up to the recent IJ appointments, I thought you might be interested to know that Anna Little is rumored to be the new ACIJ in NYC. I haven’t seen that officially, though, so you would need to confirm before posting about it (and you didn’t hear it from me). I honestly know nothing about her and she might be great, but there’s a little concern given that she was appointed as an IJ by Trump just two years ago, has never worked as an IJ at a NY court, and apparently was a Tea Party political candidate.

https://newjerseyglobe.com/national/report-trump-administration-names-anna-little-nj-tea-party-favorite-as-u-s-immigration-judge/

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Normally, I’d say that this is far, far too insane to be true, even in a Dem Administration! But, given Garland’s incredibly abysmal performance so far at DOJ, I can’t completely rule it out.

Progressives who helped Biden get his job need to start demanding better from this Administration. If true, and I personally don’t want to believe it, this should call into question Garland’s continued tenure @ Justice!

What kind of “Dem” Administration promotes GOP Tea Partiers as judges over better qualified progressive candidates?

True or not, the fact that this rumor is even out there shows a dramatic loss of confidence by progressive Dems in Garland in an amazingly short amount of time! It’s basically the equivalent of a rumor that Joe Biden intends to name Kevin McCarthy as his Chief of Staff. And, where, oh where, is Vice President Harris as Garland is totally undermining the Administration and grotesquely failing to reverse the course of injustice @ Trump’s broken and corrupt “Justice” Department?

We all know who won the 2020:election. So, why is Stephen Miller apparently still in charge of the DOJ?

🇺🇸⚖️🗽Due Process Forever!

PWS

05-13-21

⚖️HON. “SIR JEFFREY” S. CHASE SPEAKS OUT ON GARLAND’S TONE-DEAF, ANTI-PROGRESSIVE, SLAP IN THE FACE TO IMMIGRATION EXPERTS! — Garland, Who Lived His Life In Privileged “Ivory Tower” Positions Thinks Those Serving In The Trenches Who Actually Know What’s Wrong With American Justice & Live It Every Day Aren’t Important & Don’t Count! — He’ll Blow You Off Until You Yank His Chain!

17 New Immigration Judges Largely Held Prior Gov’t Roles – Law360

From an article by Alyssa Aquino @ Law360:

. . . .

However, former immigration judge and current private attorney Jeffrey Chase raised concerns over the apparent speed of the appointments. Immigration law and its administration changed vastly under former President Donald Trump, whose attorneys general used their self-referral powers to issue precedents that, in some cases, restricted the number of people who can qualify for asylum. The Justice Department has also curbed immigration judges’ discretionary powers, such as their ability to administratively close or continue cases, and instituted case completion quotas.

“If you’re looking at this whole system, shouldn’t you put your hirings on hold until you actually figure out your whole needs, how to train them and what law will apply to them?” Chase said.

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Some seem to “fob off” these “Miller/Barr leftover” picks as just “in the pipeline!” I call BS!

Garland has conducted more “outreach” to “Trumpist holdovers” than he has to progressive advocates and the NDPA! Was this election really about giving Garland a chance to continue the Miller, Sessions, Barr White Nationalist, misogynist, anti-asylum, anti-due-process, anti-private-bar regime @ the EOIR Clown Courts under Dem auspices?

You have no right to a Federal job until you take the oath and actually begin work. And that goes for fake “Billy Barr” and absurd “Monty Python” Wilkinson appointments too, unless these folks were in their judicial positions prior to the November elections.

I know because I actually lived through “hiring freezes” in the Reagan and Carter Administrations. Reagan even cancelled all Federal job offers retroactively to the date of his election on Nov. 5, 1980. And, he got away with it! His action was upheld by a Federal Court even in cases of those who had moved, quit jobs, or made other arrangements in reliance on their offers of Federal employment. https://www.washingtonpost.com/archive/politics/1981/02/26/job-freeze-by-reagan-is-upheld/6ee18e32-b8bf-4fdd-90f1-7180c2cafd9d/?no_nav=true&tid=a_classic-iphone.

IJs are classified as DOJ attorneys in the “excepted service.” They actually have fewer rights than most of those selected under the civil service competitive system who had job offers retroactively withdrawn by Reagan.

As far as I can tell from the EOIR release, whatever the gobbledygook about “Barr,” “Monty Python,” or “Garland” “appointments,” it appears that none of these folks actually entered onto duty in their judicial jobs until April, well after Biden’s inauguration and well after the election was decided. It was even after Garland’s swearing in.

Indeed, the “delayed announcement” confirms that the Garland folks knew they were screwing over progressives and individuals caught in the EOIR web of dysfunction and disrespect and were hoping to “slip this in under the radar screen.” Usually, the DOJ can’t wait to tout their new “judicial” hires at EOIR!

Given the mountains of criticism from progressives about the composition of the Immigration Judiciary under Sessions and Barr, the clear efforts by them to redesign the IJ job so that it would be unattractive to most minority attorneys, experts, and due process activists, and the intentional lack of recruitment outreach to “underrepresented communities” of lawyers (basically minority lawyers), there is no excuse for Garland’s actions! These lists were tainted!

Moreover, the Biden Transition Team knew that progressive experts recommended “sea changes” in judicial recruitment, hiring, and training at EOIR and that even those already in EOIR judicial positions under Trump be carefully re-examined under “merit criteria” as to their suitability for judicial positions and their demonstrated commitment to due process for migrants and respect for attorneys.

Additionally, all newly appointed EOIR “judges” serve a two-year probationary period during which they basically can be terminated “at will” by the AG. Even those with limited “tenure” can be transferred out of their judicial positions and moved to other jobs, as those of us “purged” from the BIA by Ashcroft for political reasons can attest. Not only was it totally inappropriate for Garland to go ahead with these “Miller Lite” hires, but he and his team should re-compete the positions of all Barr probationary appointments under revised merit criteria designed to attract a wider, more diverse, and more qualified group of applicants.

These are NOT life-tenured appointments! At most, “probationary judges” who fail to achieve merit reappointment and were previously Federal employees might be entitled to a reassignment to another government attorney position (not necessarily an adjudicator position) at the same pay level. That’s essentially what happened to those of us “purged” from the BIA by Ashcroft in 2003. We were’t even invited to apply for or interviewed for our own jobs! The whole process was done without application of any “merit principles” whatsoever!

The process under which these 17 were selected was intentionally designed to exclude progressives, minorities, and other experts who would be committed as judges to upholding due process and the legal rights of asylum seekers and other migrants! Garland’s message is clear: Immigration expertise, experience representing individuals in Immigration Court, and commitment to enforcing due process and holding ICE accountable DON’T COUNT!

Republicans play “hardball.” Garland, like Dems before him, is a wimp!

Here are the “stats” that should stand out to NDPA members for these 17 tainted “judicial selections:”

Number of known AILA members: 0 (maybe 1)

Number of clinical professors: 0

Number of human rights experts: 0

Number of noted immigration, human rights, immigration scholars: 0

Number of NGO attorneys: 0

Number who represented an individual in Immigration Court in past year: unknown, but max of 2

Number who have been involved in advocating for positive immigration reform: 0

Number who would appear on any list of the “top 100 immigration experts in America:” 0

Number who have won awards for pro bono litigation representing migrants during last 4 years: 0

Number with recently published immigration scholarship: 0

Number with experience administering major pro bono programs: 0

Number with recent community service awards: 0

Number involved with Round Table amicus briefing efforts: 0

Number who have appeared in video training sessions for immigration advocates in past year: 0

Number who have authored or contributed to “white papers” on improving due process in Immigration Court: 0

Number who applied under “Trump-era” announcements and procedures: 17

Number of progressive judges confirmed and sitting on Article III Courts under Biden: 0

Number of progressive Immigration Judges appointed under Biden: 0

Number of regressive Immigration Judges appointed under Biden: 17

17 Immigration Judges are NOT going to make a statistical difference in eliminating or reducing a largely self-created 1.3 million cases backlog! But, they will make a huge difference in the lives of individuals and their lawyers caught up in this designed to fail system. Moreover, initial appointments set a tone.

Additionally, as already pointed out by others, Garland’s continued staffing of “Miller Lite Star Chambers” like the unnecessary and due process denying “Richmond VTC ‘Court’” — without any discussion with stakeholders and advocacy groups who have unanimously opposed it — is a total disgrace!

Folks in the NDPA, Garland is sending you a message: GO POUND SAND! I CARE MORE ABOUT “HUMORING” THOSE SELECTED BY STEPHEN MILLER, BILLY BARR, & “MONTY PYTHON” THAN I DO ABOUT YOU, YOUR EXPERTISE, AND THE HUMANS YOU REPRESENT! AND, I FULLY INTEND TO SUBJECT YOU AND YOUR CLIENTS TO THE SAME “DUE PROCESS DENYING, DEMEANING VTC STAR CHAMBERS” THAT THE TRUMP ADMINISTRATION DESIGNED, OVER YOUR OBJECTIONS, TO KEEP THE “EOIR DEPORTATION RAILROAD RUNNING!”

Heck, I’m retired. But, if I were out there in the trenches like most of the members of the NDPA, I’d take this personally, as exactly the insult and put down by Garland that it is and react accordingly. After eight years of Bushie political hacks, eight years of Obama’s indolent approach to EOIR, four years of “Gonzo” Sessions, Whitaker, “Billy the Bigot,” and “Monty Python” we deserve better!

It’s up to you to get energized, get mad, get even, and force Garland and his outrageous “Star Chamber Courts” to their knees! Because if you’re waiting for him to “wake up and get religion on EOIR,” read your letters, act on your “white papers,” respect your achievements, or treat your clients as humans, you’ll be waiting in vain!

🇺🇸🗽🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-08-21

🏴‍☠️👎🏻MORE INFO ON AG’s “STEALTH IJs” — Some Will Be “Union-Busting Unit Chief IJs,” Others Will Staff “Video Star Chambers,” As Garland Quickly Sinks To “New Low” In Relationship With EOIR “Stakeholders!”

An anonymous source writes to Courtside:

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.

🇺🇸⚖️🗽Due Process Forever!

PWS

05-05-21

🆘NOT ROCKET 🚀 SCIENCE — EXCEPT WHEN DEMS RUN THE DOJ! — Group Of America’s Leading Legal Experts — “Practical Scholars” — Ask Judge Garland To Immediately Slash Backlogs To Align His Now Dysfunctional, Unjust Immigration Courts With Administration’s Stated Priorities — This Should Have Been “Day 1 Stuff” For Judge G, Who Inexplicably Has Stephen Miller “Plants” and Holdovers In Key Positions In Huge, Broken, “Life Or Death” Federal Court System That Controls The Future Of American Democracy!

Here’s the letter to Judge 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. _____________________________________________________________________________
2
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
3
AILA Doc. No. 21050334. (Posted 5/3/21)

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.
4
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
5
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
6
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
7
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
8
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
9
AILA Doc. No. 21050334. (Posted 5/3/21)

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
10
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
11
AILA Doc. No. 21050334. (Posted 5/3/21)

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
12
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?

Or, this guy?

How can you tell?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

04-04-21

🗽⚖️🧑🏽‍⚖️ATTENTION NDPA: “BORE FROM WITHIN” — Become An Immigration Judge @ The Trial Or Appellate Levels — Help Return Justice To The Immigration Courts! — Teach Basic Spelling!🔤 — Get Starbucks! ☕️ PLUS FRIDAY BONUS: First Release Of My Original Poem: “Here’s The Deal”😎

Here’s the posting for Immigration Judge:

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTA0MTYuMzg5MjAwMDEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9sZWdhbC1jYXJlZXJzL2pvYi9pbW1pZ3JhdGlvbi1qdWRnZS0xNyJ9.zjRtS1MlXI5cG87CYpG6HLDp_9SLXi45yN7hcJBKRRE/s/842922301/br/102471943259-l

And here’s the one for the BIA:

You are subscribed to Attorney Vacancies for U.S. Department of Justice. This information has recently been updated, and is now available.

Appellatte Immigration Judge

04/16/2021 11:30 AM EDT

Executive Office for Immigration Review (EOIR)
Board of Immigration Appeals
Falls Church, Virginia
Announcement #: AIJ-11092243-21-AS
Application Deadline: April 29, 2021

Appellate Immigration Judges are commissioned to serve in the capacity of an appellate immigration judge in formal, quasi-judicial proceedings to review the determinations of immigration judges in removal and related proceedings, and of certain officers of the DHS in visa petition proceedings and other matters. All Appellate Immigration Judges review the record on appeal, including briefs, exhibits, and transcripts, and hear oral argument when conducted. The Appellate Immigration Judge may concur or present dissenting opinions based on his/her view of any given case. The majority of the Appellate Immigration Judge’s duties fall into the general categories of removal proceedings, discretionary relief, claims of persecution, stays of removal, visa petitions, administrative fines, bond and detention, and immigration judge. Although the majority of the Appellate Immigration Judges’ time concerns hearing appeals, the incumbent is also qualified to conduct and may be assigned to conduct proceedings in the first instance as an immigration judge.

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

The unusual nature of the latter announcement prompted the following responses.

From Dan Kowalski:

“Appellatte? Do you get a free latte every day as you walk in the door?”

And, from “Sir Jeffrey” Chase:

“Candidates with lactose intolerance need not apply.”

They might also have meant “Appellate Immigration Judge Lite.”

The DOJ must use the same proofreader as I do over here @ Courtside!

Here’s the Deal

If enough folks bore from within,

And the rest hurl bombarding din,

The Tower of Babel will fall,

And there will be equal justice for all!

—An original poem by Paul Wickham Schmidt

EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever!

04-16-21

Here’s the audio:

🇺🇸🗽⚖️Due Process Forever!

Related posts:

Lindsay and Sarah write in USA Today:

🇺🇸⚖️🗽Due Process Forever! The Garland/Mayorkas “Miller Lite Nonsense” at the border, never!

Related posts:

Here’s a link to the letter:

🇺🇸🗽Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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You can read it here in all of its glorious bureaucratic nothingness and hollow rhetoric:

🇺🇸🗽⚖️Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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From Tal:

🗽⚖️🇺🇸Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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Was this guy

Really this guy

In disguise all along?

An anonymous source reports:

🇺🇸⚖️🗽Due Process Forever!

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🇺🇸🗽🗽⚖️🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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Who REALLY ‘runs” our disgraceful and dysfunctional Immigration “Courts”

This guy?

Or, this guy?

How can you tell?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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Here’s the posting for Immigration Judge:

And here’s the one for the BIA:

From Dan Kowalski:

And, from “Sir Jeffrey” Chase:

Here’s the Deal

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever!

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