COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” – SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”

EYORE — “Oh no! Is Judge Garland really going to leave me in this position for the next four years?”

COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” – SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”

By Paul Wickham Schmidt

Courtside Exclusive

April 9, 2021

Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.

As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system.

That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes.

The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him.

The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people.

Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.”

DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving human rights experts and their own supporters “out in the cold.”

There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.

Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts!

Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system.

This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!

Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box.

Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!

I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!

Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!

If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.

Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.

My three recommendations:

1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.

2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos.

3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!

Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

Grim Reaper — “Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!”
Image: Hernan Fednan, Creative Commons License

PWS

04-10-21

⚖️🗽🧑🏽‍⚖️CAMILLE J. MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!

https://www.justsecurity.org/75675/to-fix-the-immigration-system-we-need-to-start-with-immigration-courts/

Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.

But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”

Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.

While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”

This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.

. . . .

Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.

An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.

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

Read Camille’s full article at the link.

Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!

If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!

Star Chamber Justice — “Justice”
Star Chamber
Style

As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.

So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿‍♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.

Judge Merrick Garland — Judge Merrick B. Garland
Official White House Photo
Public Realm

If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):

Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!

Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!

PWS

04-08-21

🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

Kangaroos — Anybody remember the last time we interpreted the law or facts in favor of a human?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Here are four more recent screw-ups:

Misinterpreting “Realistic Possibility” — 8th Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-realistic-probability—lopez-gonzalez-v-wilkinson

CA8 on “Realistic Probability” – Lopez Gonzalez v. Wilkinson

Lopez Gonzalez v. Wilkinson

“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”

[Hats off to Jamie Arango!]

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

Cuthill v. Blinken

https://www.ca2.uscourts.gov/decisions/isysquery/05b681bb-4767-4cf6-b370-6f0ee77ad5d2/3/doc/19-3138_opn.pdf

D. Chevron Deference

Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and

33

legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

https://www.ca10.uscourts.gov/opinions/20/20-9520.pdf

Ni v. Wilkinson, unpublished

After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded

2

again that Mr. Ni had failed to show a material change in country conditions.

This conclusion is unsupportable. Mr. Ni’s evidence of worsening

conditions in China largely mirrored his wife’s evidence, which had led us

to grant her petition for review. Mr. Ni’s evidence was even stronger than

his wife’s because China had recently adopted a regulatory crackdown on

practicing Christians. We thus grant Mr. Ni’s petition for review.

4) Misconstruction Of Record — 1st. Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-albania-changed-circumstances-lucaj-v-wilkinson

CA1 on Albania, Changed Circumstances: Lucaj v. Wilkinson

Lucaj v. Wilkinson

“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”

[Hats off to Gregory G. Marotta!]

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

America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!

Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!

See, e.g., https://immigrationcourtside.com/2021/03/11/%e2%9a%96%ef%b8%8f%f0%9f%97%bdu-s-district-judge-susan-illston-nd-ca-shreds-enjoins-eoirs-anti-due-process-%e2%98%a0%ef%b8%8f%f0%9f%a4%aemidnight-rules-judge-p/

Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field. Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!

See,e.g., https://immigrationcourtside.com/2021/03/08/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8finside-a-failed-and-unjust-system-reuters-report-explains-how-the-trump-administration-destroyed-due-process-fundamental-fairness-humanity-in-the-u-s-immig/

The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!

Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!

Judge Garland must “clean house!” Now!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-12-21

⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!

https://lawprofessors.typepad.com/immigration/2021/03/guest-post-the-wrong-answer-to-the-right-question-how-to-address-the-failure-of-protection-for-gende.html

By Immigration Prof

Share

The Wrong Answer to the Right Question: How to Address the Failure of Protection for Gender-Based Claims?

By Professor Karen Musalo, Bank of America Professor of International Law, Director of the Center for Gender & Refugee Studies, UC Hastings

In 1996 I was honored to litigate the first case at the Board of Immigration Appeals (BIA), Matter of Kasinga,[1] that opened the door to protection for women fleeing gender-based harms. To qualify for recognition as a refugee under U.S. law, an individual must establish “persecution or a well-founded fear of persecution” on account of one of five grounds – “race, religion, nationality, political opinion or membership in a particular social group.”[2] This definition in the 1980 Refugee Act essentially adopts the standard set forth in the 1951 UN Refugee Convention[3] and its 1967 U.N. Refugee Protocol,[4] which the U.S. ratified in 1968.

The woman seeking asylum in the Kasinga case fled female genital cutting and forced marriage. In a ground-breaking decision, the BIA ruled that cutting was persecution, and it was “on account of” her membership in a gender-defined social group. In so ruling, the BIA was following the guidance that UNHCR has issued over a number of years, noting that the absence of gender as a protected ground should not impede protection for women fleeing persecution, because the particular social group ground encompasses gender-defined groups.[5]

The Kasinga decision was a breakthrough for women, and a highwater mark in U.S. adjudicators following international guidance. It also raised expectations that U.S. law would continue to evolve and extend protection to women fleeing the many forms of gender-based violence to which they are subject. However, that has not been the case, and there have been retreats from protection across administrations, although undoubtedly we witnessed the most dramatic attempts to end protection in gender claims during the Trump administration, which issued extremely limiting Attorney General decisions, such as Matter of A-B- I,[6] and Matter of A-B- II –[7] as well as regulations[8] – currently enjoined[9]—that explicitly rule out gender-based claims.

The Biden administration has committed itself to reviewing the issue of protection for those fleeing gender-based violence.[10] As we consider how to remedy the issue, some argue for a legislative amendment to the refugee definition, adding gender as a sixth ground to the statute’s five protected grounds of race, religion, nationality, political opinion and membership in a particular social group. This is the wrong solution. It would not only repeat the errors of the past (amending the refugee definition in 1996, discussed below), but it would also fail to adequately protect survivors of gender-based violence. At the same time, it would lead to the quite foreseeable consequence of leaving many deserving asylum seekers outside the ambit of refugee protection. It is also likely to signal to other Convention State parties that unless they also add a sixth ground, they could deny protection to women and girls without running afoul of the treaty’s obligations.

In order to prescribe a remedy, one first has to diagnose the illness; in order to understand why the sixth ground solution is wrong, we need to examine what occurred after Kasinga that limited protection in subsequent claims involving women fleeing gender-based persecution. . . . .

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

Read the rest of Karen’s outstanding analysis at the link.

Here’s a question from last summer’s “Jeopardy style” final exam in Immigration Law & Policy @ Georgetown Law:

A: Judge Schmidt’s favorite case.

Q: What is Matter of Kasinga?

Happy to say that everyone got that one right! Of course, I wrote the decision in Matter of Kasinga!

Karen’s bottom line: “We should be working to bring the U.S. into compliance with UNHCR’s social group interpretation, rather than surrendering to its flawed interpretation, by adding a sixth ground.”

The key is better Federal Judges, from the Immigration Courts all the way up to the Supremes: Judges who are “practical scholars” in human rights and applied due process; judges who have represented asylum seekers, particularly women, and understand their plight.

This week, President Biden announced the creation of the White House Gender Policy Council. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-establishment-of-the-white-house-gender-policy-council/

That’s a nice gesture. But, as I always say, actions are what really counts. So here are actions that Judge Garland can take immediately as Attorney General to finally fulfill the promise of Matter of Kasinga:

Vacate the atrocious, misogynist, perversion of asylum law (not to mention facts of record) by Sessions in Matter of A-B-;
Appoint some female “practical scholars in human rights” to appellate judgeships on the BIA.

That’s how to really honor Women’s History Month!

To understand the human impact of Sessions’s grotesque misconstruction of asylum law and the relevant facts in Matter of A-B-, check out this video short featuring Karen and others along with Ms. A-B-: https://www.youtube.com/watch?v=QRQpXRWlQL0

I generally agree with Karen’s concerns about specific gender-based legislation potentially having an unintended negative effect. That is certainly the fate of past unsuccessful attempts to include gender-based asylum in the regulations.

They essentially were “hijacked” by DOJ litigators and enforcement-oriented policy officials looking for ways to facially appease women’s rights groups, while actually proposing to restrict eligibility and make it easier for OIL and the SG’s Office to defend denials of asylum. They also sought to create hyper-technical requirements that would have effectively made it impossible for any unrepresented individual to properly set forth a “cognizable particular social group.”

These, in and of themselves, are reasons for removing the Immigration Courts from the DOJ and creating an independent Article I structure. The “ultimate insult to injury” was when EOIR enthusiastically participated in Stephen Miller’s currently-enjoined attempt to completely write gender-based asylum out of the law. Absurdly, that came at a time when gender-based persecution has become endemic throughout the world!

Not surprisingly, the DOJ, a prosecutorial agency at heart, is most often interested in “litigation strategies” to make it easier for the Government to successfully defend the burgeoning immigration litigation in Federal Court, rather than guaranteeing justice for asylum seekers and other migrants. Quite ironically, what would really reduce the volume of civil immigration litigation is more practical, expert decision making from better qualified Immigration Judges at the “retail level” of the system.

Gimmicks to “game” the Federal Court system against asylum seekers and other migrants by skirting due process and fundamental fairness have actually contributed to, rather than reduced, the amount of civil immigration litigation the Circuits. It has also generated many avoidable “Circuit conflicts” that require attention on Supremes’ limited docket. The failure of the DOJ, the Immigration Courts, and the Federal Courts to recognize and protect the due process rights of asylum seekers and other migrants has directly carried over into the failure of our justice system to achieve equal justice under law for racial minorities.

“Institutionalized racism” is inextricably linked to “Dred Scottification” of migrants of color in the Immigration Courts! The Biden Administration can’t solve the former without addressing the latter!

Bad judging and skewed policies on the “retail level” create multiple problems that adversely affect the entire Federal Justice system. I guarantee that they will not be solved by more restrictionist gimmicks and and unduly narrow and tone-deaf interpretations by judges and policy officials who lack the necessary expertise in immigration and human rights laws and the real-life understanding and perspective of the human consequences of the choices that judges make on a daily basis.

But, I also think that in addition to better judges, it is important to revise the statutory language to make it more explicitly inclusive and clarify that gender-based asylum, family based asylum, and other protected groups are examples, but not limits, of those covered by “particular social group.” Also, the statute should reverse the BIA’s stilted restrictionist interpretations (all too often incorrectly given “deference” by Circuit Courts shirking their duty) of “nexus” as a vehicle to deny asylum rather than an expansive concept that can and should be used to extend life-saving protections where necessary.

Otherwise, as Trump, Sessions, Barr, and Miller demonstrated, needed protection becomes largely a matter of who is appointing the judges at any particular point in time. Protection must and should be more durable — for all refugees including, but not limited, to those seeking gender-based protection!

Better Federal Judges are the beginning, but by no means the end, of what is needed to make due process, fundamental fairness, and genuine refugee protections the hallmarks of American law. They are also required to turn institutionalized racism into equal justice for all persons in America, regardless of race, religion, gender, or other defining personal characteristics.

🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽‍⚖️🛡

PWS

03-10-21

⚖️🧑🏽‍⚖️THE FEDERAL COURTS ARE BROKEN — PRESIDENT BIDEN WANTS TO FIX THEM! — He Should Start With The Immigration Courts! — “There Is Nothing To Be Gained From Half Measures!”

Dahlia Lithwick
Supreme Court Reporter
Slate
Wikimedia Commons — Public Domain

https://slate.com/news-and-politics/2021/02/russ-feingold-american-constitution-society-judges.html

Dahlia Lithwick interviews Russ Feingold @ Slate:

While Donald Trump failed to pass much signature legislation and largely failed to remake the federal government in ways that cannot be immediately corrected, his landmark achievement will be his lasting contributions to the federal judiciary. Breaking the records of his predecessors, Trump seated 234 judges on the federal courts in four years, including three at the Supreme Court. That means that whatever Biden and the Democrats try to do in the coming months and years, most of the efforts will ultimately be in the hands of life-tenured judges, 30 percent of whom were named by Trump. Those judges are overwhelmingly very young, very white, and very male. A preview of what’s likely to come happened just last week, when a federal judge tapped by Trump blocked Biden’s 100-day deportation “pause” with a nationwide injunction.

The question is what Biden and the Democrats can and will do in response to Trump’s enduring legacy. The new president is already making moves that indicate he understands that some of the norms and conventions that guided Barack Obama in building the judiciary are dead and gone. This week the Washington Post reported that the Biden administration is doing away with the formal American Bar Association vetting process that Democratic presidents used to abide by, because it was jettisoned by Republican presidents and because it simply lengthened the process. Biden is also hustling to put together the bipartisan commission he pledged would examine structural reforms for the Supreme Court and the federal judiciary. Former Wisconsin Sen. Russ Feingold is a leading Democrat attempting to strengthen the left’s ability to appoint judges, to match the pace the right has set. He is the president of the American Constitution Society, the left’s answer to the Federalist Society (we spoke last year when he assumed the post). Given the potential of the current moment for big changes in the judiciary, I wanted to ask him what happens next. Our conversation has been lightly edited for clarity.

. . . .

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

Read the rest of the interview at the link.

The disgraceful mess that Trump and McConnell made out of our Federal Judiciary has been a constant theme here @ Courtside over the past four years!

What’s missing from this interview are these fundamental realizations that those of us in the world of immigration and human rights know well but seem to escape most of the others looking to fundamentally change and improve the Federal Judiciary:

There are few things that go on in the Federal Judiciary, at any level, as important to human lives and the future of our nation as what takes place in Immigration Court every day;
The Immigration Courts have hit stunning new levels of dysfunction, incompetence, and intentional injustice over the past four years — they are truly an ongoing national disgrace (“America’s Star Chambers” or “Clown Courts”🤡) and a stain on the humanity of our nation, as well as an abomination that threatens to collapse our entire justice system;
Immigration law and “weaponized” Immigration Courts have been the key to the Trump regime’s attack on American democracy and our Constitutional institutions culminating in the deadly Capitol insurrection;
The Biden Administration has complete authority to fix the Immigration Courts now — no waiting for Justices or Judges to retire, “negotiating with Mitch and the Federalist Society,” waiting for the scheduling of Senate Confirmation hearings, or humoring home state Senators;
Some of the lawyers and advocates who led the legal fight to preserve American democracy over the past four years would be outstanding choices for the Immigration Judiciary (as well as the Article III Judiciary — there is no shortage of diverse progressive talent with “real life retail experience” out here in the NDPA, Russ);
A well-functioning, diverse, independent Immigration Judiciary would not just help advance and enforce the Administration’s progressive, humane, due-process-focused immigration and human rights policies, but also should become a model of “best practices” for the Article III Judiciary, and an extraordinary source of well-trained, experienced, progressive, “practical scholar jurists” for filling positions in the Article III Judiciary;
Better understanding of, and commitment to, humanely and properly administering immigration and human rights laws by Federal Judges — and the total elimination of “Dred Scottification of the other” under law — is the absolutely essential “now-missing key” to achieving racial justice and social justice in America;
America can’t afford the astounding absence of true immigration scholarship, human understanding of immigrants, practical decision making and problem solving, and an overriding commitment to due process for all persons, including asylum seekers and migrants, that now infects the Federal Court system at all levels;
Those seeking to undermine American democracy will continue to exploit the Federal Judiciary’s overall lack of understanding of immigration and human rights laws and their willing abrogation of Constitutional due process and basic concepts of fundamental fairness and human dignity for some of the most vulnerable persons among us — we must fix this problem before it destroys us!

🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼Due Process Forever!

PWS

02-05-21

⚖️(IN)JUSTICE IN AMERICA 🇺🇸— Why Justice Amy Coney Barrett & A Whole Bunch Of Other Federal Judges 👨🏻‍⚖️👩‍⚖️Who Have “Tuned Out” Humanity Don’t Belong On The Bench!

https://medium.com/i-taught-the-law/i-argued-a-shooting-death-case-in-front-of-amy-coney-barrett-89b4165f7df2

Dan Canon writes on medium.com:

. . . .

Perhaps you’ve reserved some optimism for the whole “Barrett’s a mom and a Catholic so there must be some compassion there” thing. Sorry, but no. In her confirmation hearings, she spoke about how the George Floyd video was “very, very personal” for her family, and that she and her children “wept together” over what must have been the zillionth police murder in her history as a lawyer and mother. But her mentor, the late Antonin Scalia, seemed to think it was constitutional to put innocent people to death, despite his ultra-Catholicism. There’s no reason to believe that any sort of ideological consistency will prevail simply because of a judge’s familial status or bizarre metaphysical beliefs, and those factors made no apparent difference in Brad’s case.

Here’s where this gets complicated: In saying that being part of this horrendous decision should disqualify a judge from serving on the Supreme Court, by extension, I’m saying that damn near every federal judge is similarly unqualified. Almost none of them believe that cops should be held accountable for killing mentally ill people who call for help. This sort of thinking, in which cops are extended every benefit of every doubt, feasible or unfeasible, is the norm. Barrett didn’t even write the opinion in Brad’s case. It was written by a liberal judge who, like all her colleagues (of whatever political persuasion), was willing to write the police a blank check. That’s how our courts have operated for decades, and even in a post-BLM society, few of those in robes have the intestinal fortitude to do anything different.

So I am unmoved by Justice Barrett’s faith. I am unmoved by her status as a working mother of seven. I am particularly unmoved by her fake expression of sympathy for George Floyd, whose case she had nothing to do with, when she couldn’t spare any for the people who actually appear before her. I’m unmoved because I’ve seen so little compassion for grieving parents like Matt and Gina throughout my career, from any federal judge, let alone the Federalist Society drones who have lately taken over the judiciary. The basic inability to do what’s right for families like the Kings should be disqualifying. Not just for Amy Coney Barrett, but for the whole lot of ‘em.

A version of this originally appeared in LEO Weekly.

WRITTEN BY

Dan Canon

Civil rights lawyer and law prof, writing about the Midwest, the untold horrors of the justice system, and the ongoing battle between the law and humanity.

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

Read Dan’s complete article chronicling the tone-deaf mishandling of the police shooting death of a young man (his clients’ son) suffering from mental health issues.

This echoes what I’ve been saying on Courtside about the need for a “new breed of better, more progressive Federal Judges” who recognize the compelling human side of the law and why the Constitutional requirements of due process, equal protection, and fundamental fairness are there in the first place. They exist to protect individuals from tyranny and government overreach, not to be ignored, watered down, or woodenly distinguished away to protect government abusers from accountability or to further ideological agendas (primarily, but not exclusively those developed by right wingers) out of touch with the most vulnerable levels of humanity they are supposed to be serving.

Life tenure means that Coney Barrett and the rest of her unqualified colleagues will be around for a long time. But, change needs to start somewhere, now!

In my experience, internal pushback, dissent, and constant confrontation of the complicit, complacent, judicial status quo with an aggressive implementation of due process, fundamental fairness, and a commitment to human rights and the best interpretations of the law can over time play a critical role in improving the law, changing results, and perhaps most important, saving lives!⚖️🗽👩‍⚖️🧑🏽‍⚖️👨🏻‍⚖️🇺🇸 That, not the hollow ideological agendas of Coney Barrett and others like her, is what “good judging” is really all about!

Intentional lack of compassion, empathy, and humanity (“Dred Scottification” of the “other”) have been themes of Trump, Miller, Wolf, Sessions, Barr, Rosenstein, Nielsen, Pompeo and the other neo-fascist toadies and moral misfits who have gleefully served the regime over the past four years. But, lack of overall resolve and courage to stand up and uniformly and authoritatively “just say no” to these toxic, anti-American, anti-humanity policies and to hold the “perps” accountable for their systemic lawlessness has plagued the Federal Judiciary, with a feckless and often downright complicit Supremes’ majority “leading” the way.

The current sorry state of our democracy, where GOP demagogues, who falsely swore to uphold our Constitution, openly spread lies, knowingly false narratives, and total BS in an attempt to incite violence, undermine our duly elected incoming President, and destroy democratic institutions, including the courts, is in part a reflection of the sad failure of our life-tenured Federal Judiciary to perform its core Constitutional function. That is, to stand up for the Constitution, the rule of law, and individual law human rights in the face failures by the other two branches of Government to uphold their Constitutional responsibilities.

Compare the (finally) unified position of the judiciary on the frivolous election challenges by Trump and his cronies with the failure to stand up for the legal and human rights of asylum seekers, refugees, immigrants, and migrants from the “git go.” Even now, the Courts have failed to sanction Trump and his lawyers for their unethical behavior in bringing frivolous civil suits, with no supporting evidence, for the specific purpose of undermining a free and fair election and using the legal system to attack the legitimacy of the duly elected President-elect and his incoming Administration. “Corruptly weaponizing the law for improper purposes” is clearly inappropriate and unethical. Yet, folks like Rudy and Sydney Powell retain their law licenses and are free to continue to abuse and undermine the system with frivolous litigation.

Dan points to the “ongoing battle between the law and humanity.” That’s the problem! The law should and must be about defending and advancing humanity in the face of tyranny and injustice. We need judges who stand for human justice. For, as MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”

Better judges for a better America! 🇺🇸Not just a slogan; a requirement for our democracy to survive!

⚖️🗽🇺🇸Due Process Forever!

PWS

01-03-21

NAN ARON OF ALLIANCE FOR JUSTICE⚖️SPEAKS OUT ON NEED FOR BIDEN-HARRIS ADMINISTRATION TO LOOK AT BROADER SOURCES FOR FEDERAL JUDICIAL CANDIDATES 🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️!

https://www.nytimes.com/2020/12/11/us/progressive-groups-biden-judges.html?referringSource=articleShare

Carl Hulse reports for the NY Times:

. . . .

In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.

“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”

. . . .

The progressives say that Democrats must use whatever leverage they can to press their nominees.

“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”

Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.

“I see opportunity here,” Mr. Feingold said.

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

Thanks Nan! Read the rest of the article at the above link!

I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary.

That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)

The mess at EOIR needs immediate attention and aggressive due process reforms. This is no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here.

Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.

Sadly, the independence, expertise, and due process performance of EOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.

The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does!

A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”

This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon!

Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!

Due Process Forever!⚖️🗽👍🏼

PWS

12-13-20

SEE NDPA UP AND COMING SUPERSTAR 🌟⚖️🗽PAULINA VERA & FRIENDS TOMORROW (WEDNESDAY) @ 8:30 PM!

https://law-gwu-edu.zoom.us/j/92761877625

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

Paulina is a former Arlington Immigration Court intern and yet another “charter member of the NDPA” who is doing great things and changing the future of American Justice for the better. Educator, litigator, practical scholar, leader, inspirational humanitarian, all around nice person, and future Federal Judge, that’s Paulina!

“Tune in” tomorrow night and compare the bright future of due process, fundamental fairness, equal justice for all, ethical behavior, and practical applied scholarship with the ugly tone-deaf, intolerant, and ethics-free rant delivered to the Federalist Society by Justice Sam Alito last week. Alito accurately represented the unjustified grievances of the unreasonably embittered dark forces currently promoting a dysfunctional Federal Judiciary that failed as a body to stand up to the cruel, unconstitutional, racist-driven, authoritarianism of the now-defeated Trump regime.

Those are judges who shirked their constitutional and ethical duties and disgracefully embraced the regime’s White Nationalist driven invitations to “Dred Scottify” (dehumanize) large segments of society including African American and Latino voters, immigrants, asylum applicants, children, union members, etc. There is no excuse for such performance from judges who are supposedly insulated from political pressures by the unique privilege of life tenure.

Life tenure is life tenure. So, Alito & his arrogantly out of touch, anti-democracy, far-right buddies aren’t going anywhere soon.

But, it is essential to start putting the faces of a elitist, intentionally unfair, backward-looking, and intolerant society like him “in the rear view mirror” and start actively cultivating for our Federal Judiciary the large pool of much better qualified, smarter, fairer, more ethical, more diverse, more courageous, and more humane talent like Paulina and many of her colleagues out there in the private sector.

Not surprisingly given the groups who have fought to preserve democracy for all of us over the past four years, a disproportionate amount of that talent is in the immigration/human rights bar. As a nation, we can no longer afford the gross under-representation of this consistently “over performing” and courageous segment of the legal community on our Article III and Immigration Judiciaries!

Build a better Federal Judiciary for a better America!

Due Process Forever! “Dred Scottification” never!

PWS

11-17-20

🦘🏴‍☠️☠️⚰️⚖️👎🏻🤮“KANGAROO KOURTS” MUST GO: NY City Bar Blasts Billy The Bigot Barr’s Deadly Immigration Court Farce, Calls For Article I! — “This step is now more crucial than ever, as ‘the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.’”

City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court

October 21, 2020

The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”

The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”

According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”

The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.

As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”

The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”

The report can be read here: https://bit.ly/31tFEpm

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

Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.

“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!

There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOP Senate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.

Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!

PWS

1-22-20

TAL KOPAN @ SF CHRON: 🏴‍☠️ Billy The Bigot’s DOJ Goes Full Racist, Cans Immigration Courts’ Diversity Training!

Honorable Mimi Tsankov
U.S. Immigration Judge
Eastern Region Vice President
National Association of Immigration Judges (“NAIJ”)

https://www.sfchronicle.com/politics/article/Justice-Department-cancels-diversity-training-15635203.php

Justice Department cancels diversity training, including for immigration judges

WASHINGTON — The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.

The memo, dated Oct. 8, is in response to an executive order issued by President Trump last month that labeled racial bias training as “offensive and anti-American race and sex stereotyping and scapegoating.” It was issued by Lee Lofthus, the assistant attorney general for administration.

“To ensure compliance with requirements specific to Diversity and Inclusion (D&I) training for employees, DOJ Components are instructed to suspend all D&I related training, programs, activities, and events that employees are required or permitted to attend while on Government-paid time,” Lofthus wrote.

Any new diversity training must be approved by the federal Office of Personnel Management, Lofthus said. He offered no timeline for resuming training.

The suspension applies to all divisions of the Justice Department, but could be of particular importance to the immigration courts.

Unlike the independent federal judiciary, immigration judges who hear the cases of asylum seekers and others trying to stay in the U.S. are employees of the Justice Department, hired by the attorney general.

Those cases often include some of the most sensitive stories of trauma from around the world, including many from women who say they have been raped, trafficked or abused in countries that frequently do not punish men who commit such acts. Asylum seekers also include people who say they have been persecuted because of their religious beliefs and LGBTQ individuals from countries where such identities are criminalized.

The Justice Department did not immediately respond to a request for comment.

Rep. Zoe Lofgren, D-San Jose, who chairs the House Judiciary subcommittee on immigration, said the Justice Department, like other workplaces, “should always aim for more diversity, not less.”

“The suspension of this training will also apply to our nation‘s immigration courts and could lead to less inclusive and fair-minded judges,” Lofgren said in a statement to The Chronicle. “This is yet another reason why the immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.”

The union that represents immigration judges noted that they interact with a diverse group of people in court, which it said makes such training important.

“The National Association of Immigration Judges values diversity and inclusion in the workplace as it ensures that the Immigration Judges can meet the needs of the diverse group of stakeholders with whom we interface.” Mimi Tsankov, the chair of the group’s committee on gender equity and a judge in New York, said in a statement. “Immigration Court workplace training on diversity and inclusion reflects a commitment to its importance and ensures a judicial bench ready to respond to the needs that our cases demand.”

President Trump’s attorneys general have paid particular attention to the immigration courts as part of their efforts to restrict immigration to the United States, by implementing policies that have reduced judges’ discretion and made it harder for immigrants to claim asylum.

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

Those with access should go to the above link for the full article. It also gives Tal a boost from the “hits.”

Glaring, intentional lack of diversity on the bench along with racial, gender, religious, and ethnic insensitivity have become an endemic problem at EOIR. But, given a regime and a DOJ that pride themselves on racism, misogyny, xenophobia, along with disdain for professionalism, expertise, ethics, humanity, and the Constitution, that’s not surprising.

Representative Lofgren and the NAIJ’s Judge Tsankov are absolutely correct. It’s time to put an end to the disgraceful abomination at EOIR and create a real, independent court system dedicated to due process, fundamental fairness, and promoting human dignity!

Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!

PWS

10-11-20

DEGRADING DUE PRCESS: “Billy the Bigot” Appoints 20 New “Deportation Judges” — Most From Government/Prosecutorial Backgrounds, Few With Immigration Expertise!

Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large — Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

Here’s the DOJ Press Release:

New immigration judges

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

Obviously, we need an independent Immigration Court with a merit-based, fair, selection system.

Vote ‘em out, vote ‘em out!

PWS

10-11-20

⚖️💰JUSTICE FOR SALE: DOJ ATTEMPTED TO “BUY OUT” “HOLDOVER” BIA MEMBERS TO CLEAR THE WAY FOR AGGRESSIVELY NATIVIST AGENDA — It Failed, But The Anti-Immigrant, Anti-Asylum, Anti-Due Process Tilt Still Took Place!

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

Tanvi Misra reports for Roll Call:

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

DOJ memo offered to buy out immigration board members

The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office

The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)

By Tanvi Misra

Posted May 27, 2020 at 5:04pm

The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.

An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.

EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.

According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.

CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”

“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.

The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.

In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.

The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.

“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”

Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.

While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.

“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”

The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.

“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.

“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.

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

The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.

This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.”

Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time. So, I rejected it, and eventually got a much better “deal.”

The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue.

Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.

Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.

Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.

Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.

It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.

The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).

Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.

As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.

Due Process Forever, Captive & Complicit Courts, Never!

PWS

05-28-20

UPDATE:

Benjamin Johnson
Executive Director
AILA

AILA Statement on BIA:

AILA: EOIR Director Attempts to Buy Out Remaining Board Members to Solidify Control of Immigration Courts

AILA Doc. No. 20052830 | Dated May 28, 2020

Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.

AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”

“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”

###

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

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

The BIA is a travesty, to be sure. But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v. Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.

If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!

Due Process Forever!

PWS

05-28-20

TANVI MISRA @ ROLL CALL: The BIA’s Biased Hiring Program Is As Bogus As A Three Dollar Bill — Designed To Empower White Nationalist Nation, Deny Due Process! ☠️👎🏻 — “Everyone knows that [EOIR Director James McHenry] 👺 was changing the process along the way to ensure he got the candidates he pre-selected.”

https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration/

Tanvi writes for Roll Call:

. . . .

The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.

“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”

An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”

“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”

New roles

Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.

McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.

They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.

EOIR said its office first proposed that designation in 2000.

“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.

True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.

“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.

Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.

Faster hiring process

In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.

The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.

McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.

In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.

The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.

“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.

Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”

According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.

EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.

. . . .

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

Read Tanvi’s full article at the link.

Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!

The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.

There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!

What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.

Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”

Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.

Even with tons of “undue deference” given to the BIA by the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.

The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”

INTERESTING HISTORICAL FOOTNOTE: The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.

Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:

NEW Roll Call article by Tanvi Misra – DOJ hiring changes may help Trump’s plan to curb immigration

AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation

AILA and the American Immigration Council Press Release, New Documents Reveal Immigration Judge Hiring Plan Designed to Stack the Courts, Prioritize Politics Over Justice

This November, vote like your life depends on it! Because it does!

Due Process Forever! Fraudulent “Clown Courts” 🤡 Never!

PWS

05-05-20

ARTICLE I: A POWERFUL NEW VOICE JOINS THE BATTLE FOR DUE PROCESS & AN INDEPENDENT IMMIGRATION COURT – The Alliance For Justice (“AFJ”) Writes To Congress In Support Of The Efforts Of The Many Organizations Of The NDPA Fighting For An Independent Due Process-Oriented Immigration Court!

AFJ letter to Chair Lofgren and Ranking Member Buck 3.30.20

PRESIDENT
NAN ARON
CHAIR
PAULETTE MEYER
March 30, 2020
The Honorable Zoe Lofgren
Chair
Subcomm. on Immigration and Citizenship Committee on the Judiciary
U.S. House of Representatives Washington, DC 20515
Dear Chair Lofgren and Ranking Member Buck:
The Honorable Ken Buck
Ranking Member
Subcomm. on Immigration and Citizenship Committee on the Judiciary
U.S. House of Representatives Washington, DC 20515
On behalf of Alliance for Justice (AFJ), a national association representing 120 groups committed to equal justice and civil rights, I write to add our voice to the organizations that have written or testified at the hearing held on January 29, 2020, before the House Committee on the Judiciary, Subcommittee on Immigration and Citizenship, on “The Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.”
For more than a generation, AFJ has worked to promote equal justice under law. We have fought to ensure a justice system that upholds the rights of all people. That is why we are so deeply troubled by the Department of Justice’s (the “Department”) exploitation of its position as the superintendent of our nation’s immigration courts to advance its anti-immigrant agenda. The Department’s actions have turned should be a fair adjudicatory system into one designed to dictate outcomes favorable to the anti- immigrant zealots in the Administration. The Department has engaged in a range of efforts designed to deprive individuals who have valid claims of asylum of the opportunity to present those claims. It has sought to influence immigration judges by incentivizing them to summarily deny claims. It has urged judges to adopt its conspiratorial views about the immigration lawyers who appear before the courts. Its pursuit of short-term political objectives has increased backlogs, produced vacancies, contributed to the demoralization of the court system, and resulted in widespread and unnecessary suffering.
AFJ writes this letter, moreover, at a time when the nation, and the world, is facing a pandemic and the Administration has indefinitely closed the southern border to asylum-seekers. Over 200 non-profit legal services organizations, law firms, and immigration legal representatives recently wrote to the
Eleven Dupont Circle NW, Suite 500 | Washington, DC 20036 | www.afj.org | t: 202-822-6070 Field Offices
Dallas | Houston | Los Angeles | San Francisco

Alliance for Justice
Letter to Chair Zoe Lofgren and Ranking Member Ken Buck Page 2
Attorney General regarding policies and practices that “during these unprecedented times” will cause immigrants and the providers and advocates who help them to “suffer serious hardships that raise due process concerns.” The concerns raised in the letter, and those mentioned below, only reinforce the need for an independent immigration court system.
The current administration has launched a series of efforts to weaponize the immigration courts. The efforts to control immigration judges include:
• The adoption of enforcement-oriented performance metrics, which require judges to complete 700 cases per year, equivalent to approximately three complete cases each business day. These metrics, which immigration judges must see on their computer screens, require judges to adjudicate claims irrespective of the complexity or merit of the cases and impose categorical restrictions on bond cases;
• The creation of a specialized fast docket, built almost exclusively for Central American families applying for asylum, which includes restrictions on the rights of judges to grant continuances;
• Limitations on judges’ authority to administratively close or terminate cases;
• Training sessions that immigration judges have described as indoctrination. As a former Immigration Judge explained: “There isn’t even any attempt at proper training. The whole indoctrination is you’re not judges, you’re really enforcement”1;
• Abusing the Attorney General’s power to act as a final arbiter of contested cases, by taking cases not then pending before the Board of Immigration Appeals to issue sweeping rulings limiting asylum protection for individuals victimized by domestic violence or harm as a result of retaliation based upon their family relationships. In the latter of the two cases, Attorney General William Barr attempted to sweep aside decades of precedent, much of it from federal appellate courts whose decisions are binding on the immigration courts;
• Issuing a final interim rule that would allow the Director of the Executive Office of Immigration Review to issue opinions on his own, on any appeal pending for more than 180 days;
• Seeking to decertify the National Association of Immigration Judges (NAIJ), the union that has represented immigration judges since 1979. NAIJ serves as one of the last bulwarks against a complete and total takeover of the Immigration Court system by our Executive Branch. Without union representation, immigration judges will lose their collective voice and be unable to push back against policies that undermine the fairness and transparency of the system.
1 Innovation Law Lab and the Southern Poverty Law Center, The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, at 18 (quoting former Immigration Judge and BIA Chairman Paul Schmidt) https://innovationlawlab.org/reports/the-attorney-generals/judges/.
Eleven Dupont Circle NW, Suite 500 | Washington, DC 20036 | www.afj.org | t: 202-822-6070 Field Offices
Dallas | Houston | Los Angeles | San Francisco

Alliance for Justice
Letter to Chair Zoe Lofgren and Ranking Member Ken Buck Page 3
In addition to its efforts to turn immigration judges into partisan actors, the Administration’s unceasing efforts to be and appear to be tough on asylum seekers have created disorder, even for those individuals far from the Southern Border. The Administration has repeatedly shuffled Immigration
Judges from jurisdiction to jurisdiction, for example, in a 2017 “surge” of judges to the border, which required the postponement of 23,000 cases. The Attorney General’s decision prohibiting administrative closure will eventually add more than 300,000 cases to its docket. The overall backlog of cases has now doubled, to over one million pending cases. In a number of courts, litigants may wait more than four years before their cases are heard. The disparities in outcomes from jurisdiction to jurisdiction are now worse than ever.
There is also disturbing evidence that the Administration’s attacks on the system may be enabling a culture of impunity. On January 23 of this year, in an unprecedented opinion, the Court of Appeals for the Seventh Circuit chastised the Board of Immigration Appeals for defying the Circuit’s remand order. Relying on what it said was advice from the Attorney General, the Board of Immigration Appeals declared the Seventh Circuit’s decision to be incorrect and declined to obey it. The Circuit stated that it had “never before encountered defiance of a remand order,” adding that members of the Board of Immigration Appeals should count themselves lucky that the immigrant had not asked the
2
Many of the most respected participants and observers of the immigration court system have called for reform of the current system. Groups as diverse as the American Bar Association, the Federal Bar Association, the National Association of Immigration Judges and the CATO Foundation have long urged the transfer of the immigration courts to a separate Article I CourtThese groups have pointed to the need to professionalize the corps of immigration judges and outlined the threat to judicial independence caused by the placement of the immigration court system under the control of the Department of Justice.
What was previously a threat of political interference is now a reality, and AFJ believes that there can be no lasting solution to this problem without removing the immigration court system from DOJ.
2 Debra Cassens Weiss, 7th Circuit is aghast at ‘obduracy’ of Board of Immigration Appeals, which refused to implement its decision, ABA Journal, Jan. 27, 2020, http://www.abajournal.com/authors/4/.
3 Katie Reilly, Northeastern University Student Sent Back To Iran Despite Valid Visa, Judge’s Order As Immigration Attorneys Warn of “Troubling Pattern”, Time Magazine, January 22, 2020, https://time.com/5769-400/northeastern-student-deported-iran.
Eleven Dupont Circle NW, Suite 500 | Washington, DC 20036 | www.afj.org | t: 202-822-6070 Field Offices
court to hold the Board in contempt.
of deportation to an Iranian student who possessed a valid student visa, was ignored by officials of the Customs and Border Patrol, who deported the student from Logan Airport back to Iran. The federal judge then stated that he believed the case to be moot, saying of the government officials, “I don’t think they’re going to listen to me.” The student’s attorney noted, “I wish I could say we were surprised, but we’ve seen this kind of flagrant defiance of the law from immigration officials before.”3
Only days earlier, a federal district court’s order granting a stay
Dallas | Houston | Los Angeles | San Francisco

Alliance for Justice
Letter to Chair Zoe Lofgren and Ranking Member Ken Buck Page 4
Our current system of adjudication is utterly broken. The most effective solution to protecting the neutrality of our Immigration Courts is to create an Article I Immigration Court system that is independent of DOJ. Article I of the U.S. Constitution expressly grants Congress the power to establish “tribunals” in addition to those created by Article III, and Congress has done so on many occasions. The establishment of an Article I Immigration Court would create greater transparency in the system. It would also restore the Due Process rights of those who come before the Court.
While moving the immigration court system from the Department of Justice will not solve the ills of the current system, it is desperately needed as a part of the solution. We therefore urge Congress to support to recommendation of the ABA, immigration judges, and immigration lawyers, among others, to establish an Article I Immigration Court system that is independent of Department of Justice.
Thank you for your consideration. Sincerely,
Nan Aron President
Eleven Dupont Circle NW, Suite 500 | Washington, DC 20036 | www.afj.org | t: 202-822-6070 Field Offices
Dallas | Houston | Los Angeles | San Francisco

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

Click the above link for the AFJ letter in its “original” much more “readable” format.

Why this a big deal: Nan Aron and the group she founded, the Alliance For Justice (“AFJ”), are inspirational, leading voices for justice reform and equal justice for all in America. That Nan and her team see the clear connection between the disintegration of justice in the Immigration Courts and the “big picture” of justice in America, all the way up to the Supreme Court, speaks volumes.

It reaffirms the commonality of the fight for Constitutional justice for asylum seekers and other migrants and the larger issues of building a premier 21st Century justice system of which we can all be proud – one that will treat all persons in our country with respect, dignity, and fundamental fairness. As Dr. Martin Luther King, Jr., once said: “Injustice anywhere is a threat to justice everywhere.”

What an honor to and joy it is to have “Lifetime Due Process Warriors” like Nan Aron and Paulette Meyer and their dedicated team throw their support and expertise behind the push for Article I!

Under their inspiring leadership, AFJ is also spearheading a nationwide effort to identify candidates for the Federal Judiciary, at all levels from the Immigration Courts to the Supreme Court. We need future judges who will put our Constitution, due process, fundamental fairness, human rights, human dignity, and equal justice for all before ideological agendas meant to serve the parochial interests and philosophy of only a minority of Americans.

Establishing an independent U.S. Immigration Court that will finally fulfill the Fifth Amendment requirement of providing “neutral and impartial adjudication” of life or death claims, without the opportunity for political interference or meddling in the individual case process, is an essential part of AFJ’s vision for a better and fairer America. Indeed, an independent Immigration Court that models due process and best practices for the most vulnerable and defenseless among us is the “essential foundation” for our entire justice system all the way up to the Supreme Court.

Also, as Nan and her team recently discussed with our group from the “New Due Process Army” and the “Round Table,” many of the best and most qualified potential candidates for the Federal Judiciary might be talented lawyers who never thought of themselves as “potential Federal Judges” and competing for these critical jobs that shape our justice, system, our nation, and indeed our world. From my extensive observations, in and out of court, in teaching, practice, and community service, folks like clinical professors, NGO advocates, bar association leaders, leaders of charitable and religious organizations, and those who have dedicated large portions of their career to litigating and advising pro bono or “low bono” individuals struggling to find equal justice and be heard in a system that too often wants to shunt them and their rights aside, could all have strong judicial skills. Legal journalists are another group that I have found often possesses stunningly accurate understanding and incisive knowledge of how our justice system works (or doesn’t, in some cases) at every level.

In my view, one of the best potential “entries into judging” is the U.S. Magistrate Judge selection program which generally has been praised as a “merit-based,” apolitical, scholarship-rewarding, and competency focused system administered by the U.S. District Judges, usually in conjunction with the private bar (our son Wick, a private practitioner in Green Bay, WI, served on the Magistrate Selection Committee for the Eastern District of Wisconsin). I would love to see the U.S. Immigration Court become this same type of “merit & scholarship based” depoliticized “hotbed of judicial excellence” and potential “stepping stone” to the higher levels of the Article III Judiciary.

So, to the many members of our “New Due Process Army” who have devoted their careers to fairness, scholarship, timeliness, respect, and teamwork, think about taking on a different role as a Federal Judge in the future. Don’t be surprised if you get a call from one of us at the AFJ or the “New Due Process Army.” Or, better yet, get in touch with us at the AFJ and the NDPA.

Due Process Forever! Help Make Our Courts Better Than Ever!

PWS

03-31-20

JUSTICE FARCE: BARR PACKS APPEALS BOARD WITH “JUDGES” KNOWN AS ANTI-ASYLUM ZEALOTS! — Body Charged With Insuring Impartiality & Due Process Now Serves As “Chief Persecutor” Of Asylum Applicants — This Is America?

https://apple.news/A4TEHyWG1TfmB-yGzUmx3YA

Noah Lanard reports for Mother Jones:

The Trump Administration’s Court-Packing Scheme Fills Immigration Appeals Board With Hardliners

In his first six years as an immigration judge in New York and Atlanta, from 1993 to 1999, William Cassidy rejected more asylum seekers than any judge in the nation. A few years ago,Earle Wilson overtook Cassidy as the harshest asylum judge on the Atlanta court, which has long been considered one of the toughest immigration courts in the country.

Now both men have been elevated to the Board of Immigration Appeals, which often has the final say over whether immigrants are deported, as part of a court-packing scheme by the Trump administration that is likely to make it even more difficult for migrants fleeing persecution to gain asylum.

Between 2013 and 2018, the average immigration judge in the country approved about 45 percent of asylum claims. The sixjudges newly promoted to the board have all approved fewer than 20 percent. Cassidy granted 4.2 percent of asylum claims. Another appointee, Stuart Couch, approved 7.9 percent. For Wilson, the figure was just 1.9 percent.

Paul Schmidt, who chaired the Board of Immigration of Appeals from 1995 to 2001, says the administration’s goal is to build a “deportation railway” in which cases move through the system as quickly as possible and then get “rubber-stamped by the Board.”

Until last year, the board had 17 members. The Trump administration expanded the board to 21 members, arguing it was necessary to handle an increase in appeals. That has allowed Attorney General William Barr to fill the panel with immigration hardliners. It’s reminiscent of President Franklin Roosevelt’s ill-fated 1937 effort to overcome Supreme Court resistance to the New Deal by adding up to six additional justices—only immigration courts are part of the Justice Department, giving the department the power to expand the Board and fill the new openings with judges sympathetic to the administration’s immigration crackdown.

The promotions of the six judges this month, first reported by the San Francisco Chronicle, are part of an intensifying effort to reshape immigration courts. Earlier this month, the Justice Department moved to eliminate the immigration judges’ union, which has been highly critical of the administration’s policies. On Monday, a regulation took effect that gives the head of the immigration courts, a political appointee, the power to decide appeals if judges do not hear them quickly enough. A rule that gives board members more authority to summarily deny appeals without issuing a full opinion takes effect on Tuesday.

Lawyers who have appeared before Cassidy, Couch, and Wilson say all three have intense tempers. All of them had many of their asylum denials reversed by the Board of Immigration Appeals. Now they’ll be the ones deciding those appeals. (The Justice Department’s Executive Office for Immigration Review, which oversees the immigration court system, did not respond to a request to comment on details in this story.)

Cassidy is most associated with his decision to deport Mark Lyttle, a US citizen who did not speak Spanish, to Mexico during a mass deportation hearing. One Georgia attorney I spoke to blamed Immigration and Customs Enforcement for Lyttle’s removal, but Lyttle asserted that he told Cassidy twice about his US citizenship.

Glenn Fogle, an Atlanta immigration attorney, concluded in 2001, “You could have Anne Frank in front of him and he would say it was implausible that she could have hidden in the house for years and not be caught.” Now he says his feelings about Cassidy haven’t changed. He described a recent case in which Cassidy rejected a Congolese client who said he had scars on his back from being persecuted in his home country. Cassidy, presiding via an aging video system, asked the man to lift up his shirt and show the scars, then said he couldn’t see them. “Judge, how on earth could you see anything with this video?” Fogle recalls asking. Cassidy denied the asylum claim, noting in his decision that he couldn’t observe the scars.

Peter Isbister, a senior attorney with the Southern Poverty Law Center, says Cassidy sometimes writes orders denying bond requests while Isbister is still opening his argument. If he tries to finish, Cassidy can get frustrated and say something like, “You can take it up with the board. We’re done!”

In 2010, Cassidy had an asylum denial overturned because he had written the ruling before the hearing even began. The next year, Cassidy sat down in another judge’s courtroom in his judicial robe. In what one observer described as a “surreal” scene, Cassidy then raised his hand and told how the judge how the case should be handled. Assistant Chief Immigration Judge Deepali Nadkarni admonished Cassidy for his “inappropriate conduct.” In 2016, Cassidy compared an immigrant arriving at the border to “a person coming to your home in a Halloween mask, waving a knife dripping with blood.”

Cassidy and Couch have both suggested that asylum seekers are dishonest and trying to scam their way into the country. A Charlotte immigration attorney, who requested anonymity because Couch is now handling appeals, heard Couch say he believes 85 percent of asylum seekers are lying, that 10 percent are telling the truth but not eligible for protection, and that 5 percent are both honest and eligible for asylum. Couch is also skeptical of lawyers. When an out-of-state lawyer couldn’t make it to a hearing because of a funeral, Couch called the funeral home to verify the claim, according to the Charlotte attorney.

In 2004, Couch, then a military prosecutor, attracted widespread attention for refusing to prosecute a Guantanamo detainee because he had been tortured. But as an immigration judge, Couch has almost always ruled against people who say they’ve been persecuted. He is best known among immigration attorneys for his 2015 decision to deny asylum to a woman who said she had been repeatedly physically and sexually abused by her ex-husband. One year later, the Board of Immigration Appeals overturned Couch’s ruling and ordered him to grant her asylum. But Couch again declined to do so. The case gained prominence when Jeff Sessions, then the attorney general, used it to issue a sweeping precedent that made it much harder for asylum seekers to claim domestic violence as a reason for asylum. (Couch isn’t uniformly anti-immigration—Jeremy McKinney, a North Carolina attorney and the vice president of the American Immigration Lawyers Association, saw him lobby North Carolina Sen. Thom Tillis to greatly expand Central Americans’ access to temporary visas—but has a narrow view of who qualifies for asylum.)

Wilson has the highest asylum denial rate of the six new appointees. His most notable habit is leaning back in his chair while respondents are testifying and closing his eyes so that it looks like he’s sleeping. In one case, according to an observer from Emory University’s law school, Wilson leaned back with his eyes closed for 23 minutes as an asylum seeker described the murder of her parents and siblings.

Like the others, Wilson has often been overturned by the appeals board he is now a part of. In one case, he ruled against a victim of domestic violence partly on the grounds that she had been able leave her abuser and reach the United States. “We disagree,” the Board decided. “Although the respondent did ultimately come to the United States to escape her abuser, by definition, any person applying for asylum in the United States has fled the harm that they experienced.”

Under the regulation that goes into effect Tuesday, Board members will have more authority to summarily deny appeals without providing any justification. Charles Kuck, an Atlanta attorney and former president of the American Immigration Lawyers Associations, expects that to lead to an assembly-line system like the one that existed under the George W. Bush administration, when Board members sometimes issued more than 50 decisions a day.

Two decades later, one Cassidy case still sticks with Fogle. His client was a former Ethiopian government official. As he was telling his story, Fogle remembers, Cassidy jumped up, turned off the court’s audio recorder, and yelled, “Bullshit!” His client insisted he was telling the truth.

Fogle says it was among the most unprofessional behavior he has ever seen from a judge. “I’ve been around,” he says. “I will never forget that.” He adds, “That’s the guy that’s going to be adjudicating appeals from other immigration judges.

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

Sounds like a Third World kakistocracy to me. And, over my years working on asylum cases, I became familiar with many of those. Never imagined the U.S. would hit these depths.

PWS

08-29-19

By Paul Wickham Schmidt

Courtside Exclusive

April 9, 2021

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

Related posts:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!

Related posts:

Misinterpreting “Realistic Possibility” — 8th Cir.

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

4) Misconstruction Of Record — 1st. Cir.

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽‍⚖️🛡

Related posts:

🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼Due Process Forever!

Related posts:

Civil rights lawyer and law prof, writing about the Midwest, the untold horrors of the justice system, and the ongoing battle between the law and humanity.

Better judges for a better America! 🇺🇸Not just a slogan; a requirement for our democracy to survive!

⚖️🗽🇺🇸Due Process Forever!

Related posts:

Due Process Forever!⚖️🗽👍🏼

Related posts:

Build a better Federal Judiciary for a better America!

Due Process Forever! “Dred Scottification” never!

Related posts:

Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!

Related posts:

Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!

Related posts:

Vote ‘em out, vote ‘em out!

Related posts:

Due Process Forever, Captive & Complicit Courts, Never!

UPDATE:

Due Process Forever!

Related posts:

This November, vote like your life depends on it! Because it does!

Due Process Forever! Fraudulent “Clown Courts” 🤡 Never!

Related posts:

Due Process Forever! Help Make Our Courts Better Than Ever!

Related posts:

Paul Schmidt, who chaired the Board of Immigration of Appeals from 1995 to 2001, says the administration’s goal is to build a “deportation railway” in which cases move through the system as quickly as possible and then get “rubber-stamped by the Board.”

Related posts: