"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice https://www.flickr.com/photos/rasputin243/ Creative Commons License
Granting Juan Mauricio Castillo’s petition for review of the Board of Immigration Appeals’ denial of his application for protective status pursuant to the Convention Against Torture, and remanding, the panel held that the Board erred in giving reduced weight to the testimony of Dr. Thomas Boerman, a specialist in gang activity in Central America and governmental responses to gangs.
Castillo is a former gang member with tattoos who fears torture by gangs and/or Salvadoran officials because of his former gang memberships, his criminal conviction, and his later cooperation with law enforcement against La Mara Salvatrucha or MS-13. In a prior petition, the same panel concluded that the immigration judge and the Board improperly discounted Dr. Boerman’s testimony.
The panel addressed two initial matters. First, the panel stated that the Board’s rejection on remand of the panel’s prior interpretation of the immigration judge’s decision was ill-advised, explaining that its prior disposition was not an advisory opinion, but a conclusive decision not subject to disapproval or revision by another branch of the federal government. Second, the panel rejected the Board’s reliance on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its conclusion that Dr. Boerman’s testimony should be given reduced weight, because Vatyan addressed an IJ’s
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
CASTILLO V. BARR 3
discretion to weigh the “credibility and probative force” of an authenticated document, whereas the issue in this case involved the testimony of an expert that the agency had ostensibly concluded was fully credible.
Even assuming the agency could accord reduced weight to Dr. Boerman’s testimony and declaration, the panel disagreed with the Board’s new justifications. First, the panel rejected the Board’s reliance on alleged inconsistencies regarding Dr. Boerman’s familiarity with Castillo’s prison gang, where Dr. Boerman explicitly wrote in his declaration that his comments on Castillo’s prison gang were based on facts provided by Castillo, and the Board did not cite any reason to doubt Castillo’s testimony regarding rival gangs.
Second, the panel disagreed with the Board’s conclusion that Dr. Boerman’s testimony did not warrant full weight because he did not submit a copy of a video referenced in his testimony, where the video was neither the sole nor primary basis for his opinion, and the Board failed to explain why the absence of one video diminished the weight of Dr. Boerman’s expert opinion, when his opinion had an independent factual basis.
Finally, the panel concluded that the Board’s decision to give Dr. Boerman’s opinion reduced weight, because it was not corroborated by other evidence in the record, was erroneous. The panel observed that the country report did provide support for Castillo’s claim, and it noted that Dr. Boerman’s expert testimony was itself evidence that could support Castillo’s claim.
The panel remanded to the Board, directing it to give full weight to Dr. Boerman’s testimony regarding the risk of
4 CASTILLO V. BARR
torture Castillo faces if removed to El Salvador. The panel explained that if the Board determines once again that Castillo is not entitled to relief, it must provide a reasoned explanation for why Dr. Boerman’s testimony is not dispositive on the issue of probability of torture. The panel further explained that once it gives full weight to Dr. Boerman’s testimony, the remaining issue for the Board is to determine whether Castillo has established the government acquiescence element of his CAT claim.
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Essentially, EOIR has been unethically misusing their authority to harass Dr. Boerman and respondents’ advocates by systematically teaming up with ICE to devalue and defeat their efforts. Remarkably, this is even though Dr. Boerman and the advocacy community are “busting their tails” trying to help the system function properly and achieve justice! How screwed up, perverted, and cowardly is that?
Obviously justice and a functioning system have been antithetical to this regime and their toadies at DOJ and EOIR. With the degradation of the DOS Country Reports by political hacks, expert testimony has become essential in most asylum cases. Disgraceful performances by EOIR, as in this case, undermine the system and add to the backlog.
This case should have been completed in a single hearing. The BIA’s open contempt for the Circuits and failure to send strong signals to IJs (and the dilatory litigators at ICE) about issues that clearly should be resolved in the respondent’s favor is a mockery of justice!
Put the experts from the NDPA in charge of EOIR! Replace the BIA with real judges from the NDPA — asylum, human rights, and due process experts who will courageously stand up for the rule of law and hold both Immigration Judges and ICE accountable for scofflaw performances (and resist improper political interference from the DOJ — regardless of Administration).
Judges who will re-establish judicial independence and stop flooding the Circuit Courts (and even the U.S. District Courts) with cases and issues that should be resolved in favor of respondents at the trial level, consistently and efficiently. That’s how to stop DHS’s and DOJ’s frivolous, unethical, anti-immigrant “litigation positions” in immigration matters that are bogging down our justice system at all levels.
That’s also how to cut, rather than astronomically increase, backlogs (along with drastic pruning of all the “deadwood” mindlessly and improperly piled onto the EOIR docket by Sessions, Barr, and an out of control ICE acting as an arm of “White Nationalist nation”). The backlogs can be reduced and eventually eliminated without stomping on anyone’s rights or adversely affecting “real” law enforcement — as opposed to the bogus (and fiscally irresponsible) version we have seen from DHS over the past four years.
Stop “churning” cases! Stop the “denial factory! Create a model, best judicial practices, due-process oriented court system of which we all can be proud! Grant asylum expeditiously and consistently to those who qualify for protection under Cardoza-Fonseca, Mogharrabi, Kasinga, and A-R-C-G- (after vacating the A-B- travesty and reissuing it as a precedent for clear grants in all similar cases)! Encourage the Asylum Offices to do likewise! Make “equal justice for all” part of the new Administration’s legacy!
Think of what a great “teaching tool” that will be for future generations! I always treated my “courtroom as a classroom,” teaching law, history, practical problem solving, best interpretations, and best practices. I can’t think of a more powerful “real life” teaching and doing tool for improving the future of American justice — from the “retail level” of the Immigration Courts to the failing Supremes.
Due Process Forever! A weaponized and dysfunctional EOIR, never!
It’s time for a sea change at EOIR. End the kakistocracy and the “malicious incompetence!” Time for action by the Biden Administration — not just hollow promises and more endless studies and discussions of what we already know and have known for years!
It’s not rocket science! The practical scholars and steadfast defenders of due process and democracy in the NDPA who can fix EOIR are out here and prepared to take over and hit the ground running for due process and fundamental fairness at EOIR! (Amazingly, those were once the goals and vision for EOIR, now trampled, degraded, mocked, and forgotten!)Leaving them on the sidelines again would be “governmental malpractice!” And we’ve already had more than enough of that!
Last week, as the White House digested news of a defeat at the polls, Trump administration officials were greeted with reports of troubling setbacks on two fronts in the country’s long-simmering conflict with Iran.
First came a leaked U.N. document showing yet another sharp rise in Iran’s stockpile of enriched uranium. Then, satellites tracked an Iranian oil tanker — the fourth in recent weeks — sailing toward the Persian Gulf after delivering Iranian petroleum products to Venezuela.
The first item was further proof of Iran’s progress in amassing the fissile fuel used to make nuclear energy and, potentially, nuclear bombs. The second revealed gaping holes in President Trump’s strategy for stopping that advance. Over the summer, the administration made a show of seizing cargo from several other tankers at sea in a bid to deter Iran from trying to sell its oil abroad. Yet Iran’s oil trade, like its nuclear fuel output, is on the rise again.
The Trump administration is entering its final months with a flurry of new sanctions intended to squeeze Iran economically. But by nearly every measure, the efforts appear to be faltering. The tankers that arrived in Venezuela in recent weeks are part of a flotilla of ships that analysts say is now quietly moving a million barrels of discounted Iranian oil and gas a day to eager customers from the Middle East to South America to Asia, including China.
The volume represents a more than tenfold increase since the spring, analysts say, and signals what experts see as a significant weakening of the “maximum pressure” sanctions imposed by the Trump administration since it withdrew from the Iran nuclear deal in 2018.
Other countries, many of them scornful of Trump’s unilateralism on Iran, are showing increasing reluctance to enforce the restrictions, even as Iran embarks on a new expansion of its uranium stockpile, according to industry analysts and intelligence officials, some of whom spoke on the condition of anonymity to discuss sensitive assessments.
[Trump imposes more sanctions and sells off Iranian oil]
As a result, Trump is widely expected to leave President-elect Joe Biden with a crisis that is worse, by nearly every measure, than when he was elected four years ago: an Iranian government that is blowing past limits on its nuclear program, while Washington’s diplomatic and economic leverage steadily declines.
“The Tehran regime has met ‘maximum pressure’ with its own pressure,” said Robert Litwak, senior vice president of the Washington-based Woodrow Wilson International Center for Scholars and the author of “Managing Nuclear Risks,” a book on countering proliferation threats. Far from halting Iran’s nuclear advances, Litwak said, the administration’s policies have “diplomatically isolated the United States, not Iran.”
The weakening of sanctions pressure gives Iran more time to deal with its still formidable economic challenges, without losing a step in its bid to re-create uranium assets it had given up under the terms of the nuclear accord, the intelligence officials and industry experts said. Last week, the International Atomic Energy Agency reported to member states in a confidential document that Iran’s stockpile of low-enriched uranium has swollen to nearly 8,000 pounds, more than 12 times the limit set by the 2015 nuclear deal. Iranian officials justify the breach by noting that it was Washington, not Tehran, that walked away from the agreement.
Even among staunch U.S. allies in Europe and Asia, dismay over the Trump approach has cooled support for the kind of broadly enforced economic boycott that might push Iran to change its behavior, analysts said.
“Many eyes may be averted now” when it comes to Iranian cheating on sanctions, said Eric Lee, an energy strategist with Citigroup in New York. “Many countries are frustrated with U.S. unilateralism, even those with well-placed misgivings about Iran.”
. . . .
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Read the full article at the link.
I have no doubt that President Joe Biden will return competence to the State Department. But, repairing the mess left by the unholy Trump/Pompeo clown show won’t happen overnight. Respect and trust are built up over time. Once lost, they are not quickly regained.
For example, any immigration/human rights expert could tell you how once-respected State Department Country Reports on Human Rights have gone from being the “international gold standard” to being “hackish” far right political screeds not worth the paper they are written on. This, in turn, has forced private organizations and NGOs to spend time, effort, and resources doing the State Department’s job. Meanwhile, the loss of competence and expertise at EOIR and the indifference of many Article III Judges means that even with the heroic efforts of of the private sector, justice for asylum seekers is more of “crap shoot” than a fundamentally fair legal process!
Kakistocracy has consequences!🤮🤡Seldom happy ones.💩☠️⚰️
PWS
11-15-20
UPDATE: SCARY THOUGHT OF THE DAY: “Malicious Incompetent” Mike Pompeo Now Operating @ “Peak Incompetence” As He Tries To Totally Screw America In The Waning Days Of the Clown Show!
ImmigrationProf blogger Ingrid Eagly and Steven Shafer in an op/ed in the Los Angeles Times take on President Trump who “[l]ast week, during the final presidential campaign debate, President Trump renewed a claim he has often made: Migrants with pending court dates rarely show up for their hearings. In response to the charge by his Democratic challenger, former Vice President Joe Biden, that the administration’s treatment of would-be immigrants was inhumane, Trump told debate watchers that the number who`come back’ to immigration court is `less than 1%.’
The government’s data, however, tell a far different story.”
Check out the op/ed and the take down of President.
A new fact sheet by Nina Siulc and Noelle Smart of the Vera Institute of Justice summarizes new evidence showing that most immigrants appear for their immigration court hearings. The report includes data from Vera’s Safety and Fairness for Everyone (SAFE) Initiative that provides free representation through a universal access model of representation. Vera researchers found that 98 percent of SAFE clients released from custody have continued to appear for their court hearings. Read the full report for additional information on related research, including Vera’s ongoing evaluation of the New York Immigrant Family Unity Project (NYIFUP).
I[ngrid] E[agly]
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Thanks, Ingrid and Steven! Our “Round Table” has used your scholarship in amicus briefs to educate Federal Courts at all levels about the realities of Immigration Court.
It’s particularly critical in an era where the politicized and “ethically challenged” DOJ often puts forth largely fictionalization versions of their self-manufactured “immigration emergency” that is actually little more than the outcome of studied ignorance, White Nationalism, “gonzo” enforcement, and maliciously incompetent administration of the Federal immigration bureaucracy.
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
If we kick out the kakistocracy next week, we could put qualified “practical scholars” like Ingrid and others like her in charge and remake both DHS and the Immigration Courts to actually operate as required by Due Process while also fulfilling legitimate law-enforcement objectives. To state the obvious, neither of these objectives is being realized at present. It’s bad for America and for humanity.
For far too long, the wrong individuals, lacking the necessary expertise in immigration and human rights, and also lacking a firm commitment to equal justice under law, have been “in charge” of the Government’s immigration policy and legal apparatus and appointed to the Federal Courts, at all levels. That’s particularly true at the Supremes where only Justices Sotomayor and (some days) Kagan appear “up to the job.”
We will never end institutionalized racism, achieve equal justice for all, and realize the true human and economic potential of America until we bring our broken immigration and refugee systems and our failing Federal Judicial System into line with our Constitutional and national values. That process must start, but certainly will not end, with this election!
Last month, a nurse at a federal immigration detention center in Irwin, Georgia, filed a whistleblower complaint detailing the abhorrent treatment of people detained there. She charged that women in detention were subjected to hysterectomies and invasive gynecological exams without their knowledge or consent, and often without assistance from interpreters.
The complaint is heartbreaking, but far from surprising. These atrocities are consistent with practices employed at U.S. detention centers for decades, and they are sadly consistent with our tragic history of forced sterilization of minority women. The implications of the complaint are perfectly clear: we must end the civil detention of immigrants, so fraught with systemic racism that undervalues the lives of Black, Indigenous and other people of color. There is no other option.
With over 200 detention centers, the United States has the largest immigration detention system in the world. Immigration and Customs Enforcement (ICE) has over the past two years detained an average of 40,000 daily, an astonishing number that surpasses the population of Wisconsin cities like Brookfield and Wausau. Yet the detention of immigrants is just a microcosm of the inhumanity that characterizes our immigration system today. Many immigrants come to the U.S. to seek refuge and a better life for themselves and for their families. But when they arrive in this country, they are forced into conditions that violate human rights principles under both international and domestic standards, and that, frankly, violate our moral obligations to each other as human beings.
ICE has the authority to release most people from detention through monetary bonds or parole, and ICE policy requires that people seeking asylum are released from detention when they can establish their identity and demonstrate they are neither a danger nor a or flight risk. Instead of using these tools, though, ICE almost always chooses detention, ostensibly to deter others from coming into the country. But far from showing detention to be an effective deterrent, statistics reveal the opposite: harsher penalties have not reduced the numbers of undocumented migrants crossing U.S. borders. What the data does show is how immigrant detention has become a big business, with taxpayer dollars helping to subsidize a billion-dollar private prison industry that profits from human trauma.
Often located in remote places, immigrant detention facilities are ripe for the abuse of detained migrants. There is no community oversight and little — often no — access to legal representation. People in detention will only have an attorney if they can afford one or are lucky enough to find pro bono representation.
. . . .
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Read the rest of Erin’s article at the link! Erin reinforces points that I make often here on Courtside: the real objectives of unnecessary and highly cost-ineffective “civil detention” are to deprive migrants of access to counsel, coerce them into abandoning potentially successful claims, punish them for exercising legal rights, and deter others from asserting legal rights.
All of these are clear violations of Constitutional due process and equal protection! The conditions under which these non-criminals are held to “punish” them for their audacity to assert their legal rights also violate the Eighth Amendment, as some lower Federal Court Judges have found.
Unfortunately, too many Article III Judges have abdicated their oaths to uphold the Constitutional rights of the most vulnerable persons among us in the face of improper political pressure and a regime overtly out to undo American democracy and institute a far-right reactionary, white nationalist kakistocracy.
And, here’s info on a great “virtual event” that Erin helped organize to raise awareness of the existence and devastating effects of “Baby Jails” in the U.S. Allowing such cruel and inhuman abominations to flourish in our nation is beyond disgraceful! (See also the recent book Baby Jails: The Fight to End the Incarceration of Refugee Children in America, by my good friend and Georgetown Law colleague Professor Phil Schrag).
The Flores Exhibit: Stories of Children Held in Immigrant Detention Facilities
WHEN
Wednesday, October 14, 2020
7:30 pm to 8:30 pm
WHERE
Virtual
EVENT DESCRIPTION
Artists, lawyers, advocates and immigrants read the sworn testimonies of young people under the age of 18, who were held in two detention facilities near the U.S./Mexico border in June 2019. Followed by a discussion with panelists.
Organized by the Immigrant Justice Clinic, Latinx Law Student Association, and American Constitution Society at UW Law School.
Zoom link will be sent to via email to those who register.
I proudly note that my good friend Judge (Ret.) Jeffrey S. Chase and other distinguished members of our Round Table of Former Immigration Judges are “readers” in “The Flores Exhibit.”
I am also inspired by all that Erin has accomplished and the lives she and her students have saved through the Immigrant Justice Clinic at my alma mater, UW Law!
Erin and others like her are exactly the type of progressive, practical, scholar-problem solvers that we need as Federal Judges and in key Government policy-making positions. We need to replace the reactionary kakistocracy with a progressive, equal justice oriented, practical, problem-solving humanitarian meritocracy.
“Equal Justice For All” isn’t just a “throwaway slogan.” It’s a vision of a better, more efficient, more effective, more tolerant, more inclusive, more diverse, more representative Government that will work with people of good faith everywhere to maximize opportunities for all and promote a brighter future for everyone in America! It’s in our power to make it happen,and the necessary change starts this Fall.
Elizabeth Jordan Esquire Director, Immigration Detention Accountability Project (IDAP)
Hi everyone,
I am pleased to report that we, along with co-counsel SPLC, DRA, Orrick, and Willkie, just got the attached order on our motion to enforce our Fraihat COVID preliminary injunction. We are working on developing guidance for detained folks, their families, advocates and allies. We encourage you to read it through if you’re interested because there are a lot of gems in there, but did want to flag these four big takeaways ASAP:
Defendants shall mandate more widespread and regular testing of medically vulnerable people, consistent with CDC guidelines and above the level provided by the BOP and state prisons.
Defendants shall mandate that medical isolation and quarantine are distinct from solitary, segregated, or punitive housing, that extended lockdowns as a means of COVID-19 prevention are not allowed, and that access to diversion and to telephones must be maintained to the fullest extent possible.
Defendant shall provide more protective, and more concrete, transfer protocols to protect medically vulnerable people, including a suspension of transfers with a narrow and well defined list of exceptions consistent with CDC guidance.
On custody redeterminations, blanket or cursory release denials are prohibited. Only in rare cases should a medically vulnerable detained individual who is not subject to mandatory detention remain detained, and any exceptions must be supported by specific justifications. With respect to people who are subject to mandatory detention, defendants must perform an individualized assessment, and should only continue to be detained after consideration of the risk of severe illness or death, with due regard to the public health emergency.
Many thanks to the many of you on these various lists for your reporting of on-the-ground conditions and results of release requests for class members, for evidence you provided in support of this motion, and for your thought partnership and tireless advocacy on these issues. Free them all!
Congrats, Liz, and thanks for all you do for American justice!
This sentence from Judge Bernal’s order says it all about the Trump ICE kakistocracy:`
Defendants have established a pattern of noncompliance or exceedingly slow compliance that calls for more active Court monitoring than has heretofore been the case.
What if we had an independent U.S. Immigration Court with judges who had demonstrated due process and human rights expertise? Such a court could require ICE to comply with the law, take appropriate corrective action against contemptuous non-compliance, and relieve US District Judges from the responsibility to supervise ICE.
Kakistocracy is neither ethical nor efficient! Vote the kakistocracy out this Fall!
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!
By Hon. Sue Roy
Former U.S. Immigration Judge
Exclusive to Courtside
Oct. 8, 2020
As Paul had written about in August, the New Jersey chapter of the American Immigration Lawyers Association (AILA-NJ) filed a complaint against the Department of Justice/Executive Office for Immigration Review (DOJ/EOIR) over the arbitrary re-opening of the Newark Immigration Court for in-person hearings on July 13, 2020, without proper COVID-19 safety procedures and protocols in place.
This is despite the fact that in March, numerous individuals contracted COVID-19 because the Court did not timely close at the outset of the pandemic. To date, a well-respected immigration attorney who was present in the building during that time passed away from COVID-19 complications. Three additional people who worked in the building have also passed away from COVID-19, and many individuals became quite ill due to the exposure; some of whom have permanent health complications as a result.
As of now, most courts in NJ remain closed; courts at the municipal, country, state, and federal level have successfully utilized either telephonic or televideo technology to ensure that cases move forward. In fact, the NJ District Court is literally next door to the Newark Immigration Court; it remains closed, and the U.S. Attorney’s Office, which is located in the same building as the Newark Immigration Court, remains closed as well.
Before filing the lawsuit, AILA-NJ asked EOIR to provide them with information regarding what safeguards were going to be implemented at the time of reopening, but EOIR declined to respond.
It should be noted that the National Association of Immigration Judges (NAIJ) has been seeking the same information from EOIR, and EOIR has refused to release information to NAIJ as well.
Accordingly, AILA-NJ, through the pro bono representation of Gibbons, P.C., filed a complaint and an injunction request in the NJ District Court. DOJ, represented by the U.S. Attorney’s Office, advised the Court that it was not their responsibility to ensure the safety of individuals utilizing the Court; it was the parties’ responsibility to follow proper COVID-19 safety protocols. While Judge Vasquez did not grant the injunction, he was extremely critical of DOJ’s position, calling it “shocking” and “disheartening.” He noted that it was impossible for him to determine if EOIR had acted in an arbitrary and capricious manner in reopening the Newark Immigration Court without being advised as to what went into the decision-making process.
Two and ½ weeks ago, DOJ asked for a 2-week extension to file their responses to Judge Vasquez’s requests for information regarding EOIR’s safety plans, any policy discussions/memoranda from the various agencies who were allegedly involved in the decision to reopen Newark Immigration Court in July. DOJ also indicated that, despite previously stating that televideo proceedings were not possible, they were looking into setting them up at Newark. AILA-NJ agreed to the continuance request.
The Newark Immigration Court has held a few televideo hearings over the past two weeks. Attorneys are required to have their clients present with them in their offices when appearing before the Court. One attorney who was forced to do this tested positive for COVD-19 two days later and is now in quarantine.
Instead of then complying with Judge’s Vasquez’s order, last Thursday, DOJ filed a letter brief asking the Judge to dismiss the lawsuit as moot. AILA-NJ offered to settle the matter through the use of a consent order; DOJ refused. Therefore, AILA-NJ has opposed the request to dismiss the lawsuit, noting the continuing safety issues, the lack of any uniform procedures for the video hearings, the fact that televideo hearings are subject to individual judges’ discretion, and other concerns.
There is a telephonic conference now scheduled before Judge Vasquez for Thursday, October 8, at 11:30 am.
As of now, televideo hearings are only being offered at Newark Immigration Court, (not nationwide) and only to AILA-NJ attorney members who request it. Non-AILA-NJ attorneys are not being offered this option, and neither are pro se litigants, who are required to appear in person for master calendar and individual hearings. Court staff, interpreters, and immigration judges are required to be physically present for hearings, thus risking exposure to COVID-19, which is currently on the rise again in New Jersey generally, and in Newark in particular.
We have always suspected that EOIR had no safety plans or protocols in place before it decided to arbitrarily reopen the Newark Immigration Court. This view is shared by the NAIJ. The fact that EOIR reversed course and set up televideo hearings in Newark in less than 2 weeks and are now seeking to not release any information demonstrates just how disingenuous and unscrupulous DOJ has become.
NAIJ, the New Jersey State Bar Association, the Hispanic Bar Association, and the Round Table of Former Immigration Judges, among others, have all issued statements in support of the AILA-NJ litigation.
Hon. Susan B. Roy is a member of the Round Table of Former Immigration Judges and the principal of Law Office of Susan G. Roy, LLC in Princeton Junction, New Jersey.
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Thanks, Sue, for all you do for due process!
Here are links to my previous reports on the litigation:
BY DEVLIN BARRETT AND MATT ZAPOTOSKY report for WashPost:
Attorney General William P. Barr delivered a scathing critique of his own Justice Department Wednesday night, insisting on his absolute authority to overrule career staff, whom he said too often injected themselves into politics and went “headhunting” for high profile targets.
Speaking at an event hosted by Hillsdale College, a school with deep ties to conservative politics, Barr directly addressed the criticism that has been building for months inside the department toward his heavy hand in politically sensitive cases, particularly those involving associates of President Trump.
“What exactly am I interfering with?” he asked. “Under the law, all prosecutorial power is invested in the attorney general.”
Barr’s comments were remarkable, in that the head of the Justice Department catalogued all of the ways in which he thought his agency had gone astray over the years, and in its current formulation harms the body politic. Barr has drawn considerable criticism for intervening in criminal cases in ways that help benefit the president’s friends.
Barr said it was he, not career officials, who have the ultimate authority to decide how cases should be handled, and derided less-experienced, less-senior bureaucrats who current and former prosecutors have long insisted should be left to handle their cases free from interference from political appointees.
Barr said that argument, in essence, means “the will of the most junior member of the organization” would make decisions, but he insisted he would not “blindly” defer to “whatever those subordinates want to do.”
“Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency,” Barr said.
The attorney general, the nation’s top law enforcement official, spent much of the speech eviscerating the idea of the Justice Department as a place where nonpolitical career prosecutors should be left to decide how sensitive cases are resolved.
. . . .
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Read the rest of the article at the link.
I’m sure this does wonders for morale at the DOJ! But, demoralizing all the career lawyers and pushing them out the door appears to be part of the program. After all, the regime initially tried to “buy out” the holdover members of the BIA. Morale at the Immigration “Courts” is already at an all-time low!
Career civil servants at the DOJ and elsewhere actually work for the people of the U.S., not personally for Billy, other political appointees, or the President. Government employees take an oath to uphold the Constitution, not of loyalty to the President, the AG, or any other political official.
Billy clearly has been running the Immigration “Courts” as a politically weaponized part of the regime’s White Nationalist, authoritarian, race-driven immigration enforcement agenda. Funny how long it has taken the overall legal community to see that Barr basically considers the entire legal system, including the Article III Courts, as just as subservient as the Immigration “Courts.” And, to date, the Supremes have done little to discourage that view.
He is carrying out a personal agenda of replacing representative democracy with an authoritarian state where everybody and everything is subservient to an all-powerful totally unconstitutional “Unitary Executive” (actually a bogus right-wing “invented concept” with no actual legitimate basis in American political history, as cogently “debunked” by Ayer in his podcast). That certainly makes him one of the two most dangerous men in America!
Billy did say one thing I agree with. Politicos, particularly hacks like Billy and Trump, can be held accountable at the ballot box. Indeed, given the feckless performance of the GOP Senate and the overall failure of the Federal Courts to stand up to tyranny, that appears to be the very last hope for our democracy.
Had enough of the Liar in Chief, Billy the Bigot, Moscow Mitch, & Co? Vote the GOP out of every public office at every level this Fall, while there is still a chance to save our democracy!
This Fall, vote like your life and the continued existence of American democracy depend on it! Because they do!
This is merely the latest example of Trump’s leveraging of the powers of the presidency to avoid legal accountability. Over the past four years, he has deployed the Justice Department to try to stop a New York grand jury from conducting a criminal investigation into the president’s businesses; Congress from investigating his financial entanglements; and several litigants from requiring the president to divest his financial stake in hotels and businesses that create conflicts of interest — investments that may even violate the Constitution. Now, Trump is using a federal agency to try to ensure that he faces no consequences for — if Carroll’s account is true — lying about an incident that she describes as rape.
The legal theory that the Justice Department is pursuing now is also at odds with another theory that the department has advanced to help the president avoid accountability, in a case involving whether Trump can block critics on Twitter. In that instance, the department has argued that the president can block people on the social media site because his Twitter feed amounts to purely private speech, not official actions. That’s a bold claim — made bolder when the department insists that Trump’s comments about a private citizen, about an episode from the 1990s, constitute actions within the scope of his duties as president.
The goal is the same, though the methods vary: Protect Trump at all costs. It’s one thing for lawyers in private practice to pursue contradictory and outlandish tactics like these. It’s quite another for the Justice Department to do so, at taxpayers’ expense.
Leah Litman is an assistant professor of law at the University of Michigan Law School and host of the podcast “Strict Scrutiny,” about the Supreme Court.
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Read the rest of Leah’s article at the link.
The DOJ’s position is nonsense. But, with a corrupt and complicit DOJ led by Billy the Bigot, a feckless Congress, and listless Federal Courts, who’s going to stop Barr and Trump from destroying American justice?
So, defending misogyny is an essential part of the “religiously woke” America that theocrat, autocrat, anti-democracy activist Billy the Bigot envisions with his perverted view of a right-wing, intolerant, shove it down your throat Christianity that Jesus would never recognize? What a crock!
In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that would effectively eliminate administrative closure as a docket management tool for Immigration Judges. The EOIR justified this proposed rule by claiming that administrative closure has “exacerbated both the extent of the existing backlog of immigration court cases and the difficulty in addressing that backlog in a fair and timely manner.” TRAC analyzed the EOIR’s claims as well as the historical data on administrative closure from 1986, and has just published its findings in a detailed report. The link to the report is below.
TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. From FY 1986 to 2020, 6.1 percent (or 376,439) deportation and removal cases had been administratively closed during their lifespan. Each year, between 1 percent and 30 percent of cases are administratively closed, with high percentages of administrative closures during the Reagan and Bush Administrations in the late 1980s and early 1990s and during the Obama Administration between 2012 and 2016.
Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. If the 292,042 cases that are currently administratively closed and not yet recalendared were brought back onto the Court’s active docket, this would suddenly increase the Court’s active workload from its current backlog at the end of July 2020 of 1,233,307 cases to 1,525,349 cases. This would produce a 24 percent jump in the court’s already clogged hearing schedules, pushing the resolution of other backlogged cases off for many additional months if not years.
Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. When cases were administratively closed, recalendared, and decided, most immigrants met the legal standard to remain in the country lawfully. For example, for those cases in which the government was seeking removal orders, six out of ten (60.1%) immigrants met the high legal threshold of remaining in the country. The largest proportion of these had their cases terminated since the Court ultimately found there were no longer valid grounds to deport them. Just three out of ten (30.3%) immigrants were ultimately ordered removed.
Fourth, the EOIR significantly misrepresented the data it used to justify this rule. Specifically, the agency claims to show low numbers of case completions during the Obama Administration and high numbers of case completions during the Trump Administration. In reality, the data behind this argument artificially eliminates cases that were administratively closed. Its argument also fails to recognize that average annual case completions per Immigration Judge have actually declined from 737 closures per judge to 657 per judge during the past four years, not increased, perhaps due to the changes introduced by the current Administration.
TRAC’s free web query tools which track Immigration Court proceedings have also been updated through July 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563 trac@syr.edu https://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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“Significantly misrepresented” — That’s a euphamism for “blatantly lied.” Of course, that’s what the head of the regime does on life or death matters. So, I suppose we wouldn’t expect anything else from the “toadies on parade” filling out the kakistocracy.
Look, you don’t “jack” the backlog to at least twice its “pre-regime” level with twice the number of Immigration Judges without some pretty grotesque mismanagement, cover-ups, falsification of data, dishonesty, and denial of rights to migrants.
Moreover, TRAC specifically shows the “false narrative” peddled by the racists in the Trump regime that administrative closing is some type of “evasion” that is not in the public interest. As Judge Richard Leon would say “poppycock.” It’s exactly the opposite! TRAC finds that “data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status.”
Administrative closure is a sane, reasonable, well-established, entirely legal, and absolutely necessary procedure.Gee whiz, one of the original proponents of administrative closure and its aggressive use as a docket management tool was the late first Chief Immigration Judge William R. Robie. Chief Judge Robie was a Republican appointee during the Reagan Administration. He also was a devotee of fundamental fairness and judicial efficiency. He had led a number of professional organizations and was known and respected in the DC Legal Community as a “guru of timeliness and efficient legal administration.”
What’s abusive are the illegal tactics, lies, and mismanagement at both DOJ and DHS that have been concocted to justify racist, White Nationalist policies that do not serve the public interest!
Due Process Forever!
PWS
09-10-20
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Here’s an Addendum from Margaret Stock:
From: Margaret Stock [mailto:MStock@CASCADIALAWALASKA.COM] Sent: Saturday, September 12, 2020 10:17 AM To: Benson, Lenni B. Cc: Immprof (immprof@lists.ucla.edu) Subject: Re: [immprof] FW: The Life and Death of Administrative Closure
The Administration is most definitely putting out misleading information (as usual). Example: one often overlooked “administrative closure” group has been members of the US military who got tossed into removal proceedings for one reason or another (usually because of a referred asylum case or failure to file an I751 or denial of an I751 by USCIS). They almost always naturalize after being put into proceedings, then reopen and terminate. Lately, they’ve had to hire a lawyer to keep showing up at master calendar hearings, usually for a couple of years. The judges can’t hear the case because they’ve got naturalization applications pending. But the judges have to keep wasting docket time on them because there’s no such thing as admin closure anymore. It’s foolish and costly for the service members.
Hon. Polly Webber US Immigration Judge (Ret.) Member Round Table of Former Immigration Judges Fiber ArtistKnightess of the Round Table
Polly writes:
Hi everyone,
I taped a show today on our local Napa TV station to compare the 2020 Immigration Platforms of the RNC and the DNC. Amazingly, they sent me the video tonight. It will air 8 times in the month of October.
I only had about 25 minutes, and there is an avalanche of information that I had to leave out in order to get the major points out.
Thanks, Polly for being the voice of truth and rationality! You are a true “Knightess of Our Round Table.”I know I speak for the others when I say that it is a privilege and an honor to “fight the good fight” alongside you!
I particularly recommend Polly’s very cogent explanation of the importance of prosecutorial discretion, administrative closing, and independent docket control by Immigration Judges. It shows why the elimination of these beneficial and essential tools by former AG Jeff “Gonzo Apocalypto” Sessions was so stupid and counterproductive, in addition to being illegal. It’s one of the many reasons why Billy the Bigot and Gonzo have doubled the backlog with twice the number of Immigration Judges.
On top of cruelty, stupidity, and scofflaw behavior, the Trump regime continues to squander taxpayer moneywith maliciously incompetent administration!That’s exactly what a kakistocracy does! Just putting competent judicial administration in charge of existing resources would make a huge positive difference!
Vice President Mike Pence raised eyebrows with his latest praise of President Donald Trump, which critics described as “ridiculous” and “embarrassing.”
“I always tell people that to know President Trump is to know someone whose word is his bond,” Pence claimed Thursday during a “Life Wins!” event in Raleigh, North Carolina.
. . . .
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Read the full article at the link.
Perhaps what Mikey Moron meant to say is “whose word is as bogus as a $3 bill” (isn’t that the one with the Liar-in-Chief’s picture on the front?)
I actually think words like “ridiculous” and “embarrassing” are far, far too kind to this shameless butt-kisser, moral coward, incompetent executive, and betrayer of American democracy and human decency! He’s part of the “Evil Clown Show” ☠️🤮🤡 that has killed tens of thousands of American citizens as well as an untold number of refugees, asylum seekers, and other migrants, put innocent kids in jail, and caused unfathomable pain and suffering to name just a few of the gross misdeeds in which he has had a supporting role.
Has there ever in history been a more outlandish incumbent ticket of “proven malicious incompetency?”
This November, vote like your life and the future of our nation depend on it! Because they do!
It is entirely fitting that Donald Trump — the least law-abiding president in our history — was renominated at a convention that was itself a seeming cavalcade of crime. Every night featured apparent violations of the 1939 Hatch Act, which prohibits federal employees from engaging in political activities “in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States.”
The White House certainly qualifies as such a facility. Yet Trump used it as a convention prop, even going so far as to televise a naturalization ceremony for immigrants — some of whom did not realize they would be shown at the Republican convention — as part of the nightly show. Trump not only flouted the law but also reveled in doing so. During his acceptance speech, he boasted, “We’re here — they’re not,” and the New York Times reported that Trump “relished the fact that no one could do anything to stop him.”
While the president is exempt from the civil provisions of the Hatch Act, he could be subject, once he leaves office, to criminal penalties if he should “intimidate, threaten, command, or coerce … any employee of the Federal Government … to engage in … any political activity.” That is a crime punishable by up to three years in prison.
This is, of course, barely scratching the surface of an administration that should more accurately be described as an ongoing criminal conspiracy. While many of Trump’s awful acts — e.g., confining children in cages or unleashing riot police on peaceful protesters — are merely violations of democratic norms, there is also plentiful evidence of lawbreaking on his part.
The U.S. attorney for the Southern District of New York has identified Trump as “Individual-1” in a conspiracy with his attorney Michael Cohen to violate campaign finance laws by secretly paying off two women with whom Trump allegedly had affairs. Cohen went to prison; Trump, who as president claims immunity from prosecution, wasn’t indicted.
Special counsel Robert S. Mueller III uncovered a great deal more potential illegality. He found 10 instances when Trump might have obstructed justice, and in at least four of those cases he found evidence that Trump’s conduct met all three elements of the obstruction-of-justice statute. Each violation carries a maximum penalty of 20 years in prison. The recent report from the Senate Intelligence Committee suggests that Trump also lied to Mueller when, in written testimony, he claimed not to remember speaking to Roger Stone about WikiLeaks. If he committed perjury, that would subject him to up to five years’ imprisonment.
. . . .
Trump could try to short-circuit justice by seeking to pardon himself before he leaves office — or even by resigning a few hours early and having Vice President Pence sworn in to issue a pardon (as President Gerald Ford did for Richard Nixon). In that case, the special counsel would be limited to investigating Trump’s accomplices (unless they are also pardoned) and helping state prosecutors. But the special counsel should still issue a comprehensive report on Trump’s lawbreaking. We must expose and root out this ethical rot before it eats away at the foundations of our democracy.
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Read the rest of Boot’s article at the link. Actually, Max understates the case. Trump long ago ate the ethical underpinnings of American democracy for lunch, with the “JR Five” providing “table service.”
Under “normal” circumstances, the scenario outlined by Boot in his final paragraph would be beyond preposterous! But, in the failed state of American democracy under Trump, it’s perfectly plausible. Whose going to stop him from the “final abuse and mockery of our republic?” Feckless Congress? The Supremely and Serenely Complicit ones? No way. Trump will exploit the moral cowardice and spinelessness of the other failed two branches of Government until the end!
It started about the time that Roberts and his colleagues threw Muslims, refugees, and migrants under the bus in their ridiculously wrong and intellectually dishonest “Travel Ban Fiasco.” The “Dred Scottification” of migrants and people of color and open corruption, aided and abetted by Roberts and his gang, have continued largely unabated since then.
Max’s use of the term “rot” brings to mind the refugees from many nations, most people of color, rotting in Mexico, futilely waiting for “asylum hearings” that might never come and where denial without due process has been predetermined. This is what “American Justice” has become under Trump, Billy the Bigot, Wolfman the Illegal, and Roberts the Complicit!
Actually, separating families, misrepresenting the policy to Federal Courts, and long-term “civil” detention of families in life-threatening conditions as a “deterrent” to exercising important, fundamental legal and human rights might well be criminal violations in a functioning justice system. Sadly, America basically lacks the latter these days because of the Supremes’ coddling of the “crimes against humanity” committed by Trump, Miller, Barr, Wolf, Cooch, and their co-conspirators.
As those of us with experience adjudicating asylum cases know, lack of accountability before the courts and failure of the judiciary to exercise independent judgment to control a corrupt and tyrannical executive are hallmarks of failed states and banana republics.
Let’s see! America’s founders created an independent judiciary to insure the right of the “King” to use the Government as his personal servants to violate the Bill of Rights, exploit the nation for his own gain, and create “alternate Kings’ Courts” where the “judges” are his employees, he makes the rules, the results are largely preordained by the King’s personal biases and the interests of his royal cronies, and the penalty can be “death without due process.” Not likely!
But, that’s what happens when judges’ fealty to ideology, party, or personality often exceeds their loyalty to the Constitution and to the human rights and human dignity of their fellow men, women, and children. It happens when we create an elitist, right-leaning judiciary, out of step with and non-representative of the majority of Americans, where actual knowledge and experience defending the human rights of individuals against Government overreach, courage to speak truth to power, and demonstrated unswerving commitment to equal justice under law is far, far undervalued, even intentionally ignored. Where practical problem-solving skills and human empathy, perhaps the two most important qualities for fair and honest judging, are all too often disrespected and even demeaned.
Better Federal Judges for a better, fairer, functional America! One where the humanity of all persons is honored and respected, rather than being mocked by those in positions of power and privilege. One where the highest Court finally stands up for and enforces the hard-fought Constitutional right to vote, regardless of skin color or ethnicity, rather than aiding and abetting the blatant schemes of the GOP to suppress voting and deny deserved political power to Americans of color. One where an honest Court enforces to the maximum degree the Voting Rights Act rather than intentionally and disingenuously gutting it at the demand of some in the White power structure.
These travesties have unfolded right in front of us. Yet, even so called “liberal-progressive” commentators largely shrug them off as somehow “normal” or “just the way the system functions.” That’s BS! It’s “judicial malpractice.” It’s a major reason why two centuries after our founding we have not yet achieved racial justice and why our nation is coming apart at the seams under grotesque misgovernance and judicial complicity.
The current Federal Judiciary has facilitated the takeover of our Government by an ongoing criminal conspiracy, as described by Boot. We need change! Sooner rather than later! And, it can’t and won’t happen with the current cast of characters in the Executive, the Senate majority, and the Article III Judiciary.
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
As he seeks a second term, [Trump has] also made it clear that he hasn’t finished. He still wants to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program once and for all, drive out the millions of unauthorized immigrants living in the US and curb their political power, enact what he calls “merit-based” immigration reform, and pursue a slew of restrictive immigration regulations.
The US has already seen the harms of Trump’s first-term immigration policies, which could cut deeper if he’s given another four years: Legal immigration is plummeting, stymying growth in the labor force and threatening the US’s ability to attract global talent and recover from the coronavirus-induced recession. The US has abdicated its role as a model for how a powerful country should support the world’s most vulnerable people. And the millions of immigrants already living in the US, regardless of their legal status, have been left uncertain of their fate in the country they have come to call home.
Other concerns — including the coronavirus, racial justice, and unemployment — have recently eclipsed immigration as a top motivating issue for voters. But for Trump, who currently lags former Vice President Joe Biden in the polls, restricting immigration proved a winning message in 2016, and he will likely try to replicate that strategy again.
“It’s the thing he keeps going back to,” Douglas Rivlin, director of communication at the immigrant advocacy group America’s Voice, said. “It is his comfort zone — to go after people of color and turn them into sort of the specter of scary, violent people as a political strategy.”
. . . .
Whether any version of that proposal will get traction would largely depend on the makeup of the next Congress and whether Democrats win a majority in the Senate. Most immigration policy experts aren’t convinced that Trump will see success in negotiating with Democrats, but the political calculus could change if Democrats control both chambers of Congress and need Trump to sign their legislation.
It also depends on Republicans acting as a unified front on immigration. So far, pro-business Republicans aren’t challenging the restrictions and travel bans Trump has imposed during the pandemic, and as the US continues to grapple with its worst economic crisis since the Great Depression and more than a million Americans are out of work, they will likely continue to follow the president’s lead. But in the long term, they might find themselves at philosophical odds with the anti-immigrant wing of the party.
“I think the reality of the economics of immigration and the sort of more ideological agenda are going to come into conflict,” Rivlin said.
But if Trump can overcome those hurdles, the prize would be substantial: the ability the leave his mark on the immigration system beyond a series of executive actions that could be reversed by the next Democrat who assumes office.
“Merit-based immigration reform would be a legacy for him on immigration, more so than a border wall,” the Bipartisan Policy Institute’s Cardinal-Brown said. “That would have impacts on the future of immigration for decades.”
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Read the rest of Nicole’s gloomy yet (as always) well-written outlook at the link.
Don’t be fooled. In “Trumpspeak” the term “merit-based” means “race-based” (favoring, of course, White guys, preferably rich, English speaking, and prospective GOP toadies). Again, to state the obvious, a “kakistocracy” by definition lacks the ability to recognize and reward true “merit.” That’s why it’s a “kakistocracy,” not a “meritocracy!”
America is a nation of immigrants. To change that, Trump will have to destroy America, which, as this week’s “clown show of hate, fear, loathing, and complete nonsense” (a/k/a “The GOP Convention”) shows, he and his followers are perfectly willing to do.
This perverted “vision” of America also ties in well with the Trump/GOP approach to racism and social justice: Ignore injustice and double down on violence administered by the largely White power structure against communities of color. Kill, maim, blame, punish, jail, intimidate, disenfranchise, and dehumanize the victims rather than looking for cooperative ways to solve the problems. Sow fear, hate, and division to insure that institutionalized racism and White grievance will be indelibly ingrained in America! As these self-inflicted grievances play out, the Trump family and its cronies will use the ensuing chaos as a diversion to loot the Treasury and use what remains of “government” to further their own personal interests, without regard to the common welfare. Nice folks!
It’s doubtful that America as the majority of us have envisioned it can survive another four years of Trump’s corruption, racism, and malicious incompetence. Despite some liberal wishful thinking, our democratic institutions and apparently overrated “checks and balances” are crumbling before our eyes.
The “JR Five” on the Supremes and the GOP Senate already have reached “Penceian levels” (“Pence” rhymes with “incompetence”) of mindless sycophantic subservience to the “Clown Prince” and his entourage. None of them would be able to extract their collective heads from the more than ample Presidential rear to see any daylight during a second term. Trump’s re-election would inevitably convert the “City on The Hill” to a “wealthy universally despised third world kleptocracy.” That’s the real “vision” of Trump and the GOP. (I think that Nicole’s “hypothetical” of a Trump victory and a Dem Senate is the “least likely scenario.”)
This November, vote like your life and the world’s future depend on it! Because they do!
Equal Justice & A Diverse America For All! Trump’s Dark, Evil, Dishonest Vision Of America, Never!
Washington, DC – Today, the Department of Justice (DOJ) published a sweeping proposed rule in the Federal Register that would overhaul Board of Immigration Appeals (BIA) processes and remove due process safeguards with an aim of fast-tracking deportations. The public has 30 days to comment on the proposed rule.
AILA’s Senior Policy Counsel, Laura Lynch, stated, “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges. Putting this much power in the hands of an administrator who is not even a judge will give the Trump administration unprecedented ability to manipulate the courts in furtherance of its deportation agenda. The need for independent immigration courts has never been more urgent, or clear. This exemplifies why AILA is calling on Congress to pass legislation creating an immigration court system separate and independent from DOJ.”
AILA’s First Vice President, Jeremy McKinney, added, “The realities of this proposed rule are grim—more power entrusted to a hand-selected bureaucrat, increased pressure for speedy decisions at the cost of due process, and a dismantling of an appeals process vital to a fair day in court. Deeply troubling is the rule’s codification of the prohibition former Attorney General Jeff Sessions tried to impose on judges’ ability to administratively close cases, a fundamental authority judges need to efficiently manage their overloaded dockets. At least two circuit courts have rejected Sessions’ analysis and overturned the decision. The proposed rule is part of a larger effort by the DOJ to exert improper political influence over immigration court decisions and to turn the immigration courts into an enforcement mechanism. It’s a power grab, pure and simple.”
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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.
Laura A. Lynch, Esq.
Senior Policy Counsel
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Thanks, Laura, for all that you and AILA do to fight for equal justice for all and to combat the evil influence of Billy the Bigot and his toadies over at EOIR!
Litigate, litigate, litigate! Force the Article IIIs to confront on a mass basis the human carnage, overt xenophobia, mockery of justice, and racism that they have fostered with their timid and indolent approach to the massive assault on our justice system and human dignity from Billy the Bigot and the White Nationalist regime! Make a record for future generations to see who stepped up, who chickened out, and what kind of individuals hid behind their black robes while humanity suffered and the lives of some of the most vulnerable were unlawfully and unethically destroyed.
There is no excuse for the continued, unconstitutional EOIR abomination! Past time for the Article IIIs to call halt to this perverted charade and transfer all immigration hearings to U.S. Magistrate Judges until Congress and the Executive create a new, independent, constitutionally compliant Immigration Court!
