"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.
WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.
EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change–litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
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. Follow AILA on Twitter @AILANational.
Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.
Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.
PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
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Video by Frankie McLister/Cronkite News
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
. . . .
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Read Kelly’s full article at the link.
Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”
WASHINGTON, DC—In a lawsuit filed today in the U.S. District Court for the District of Columbia, several immigration lawyer groups and individuals with pending immigration cases demanded that the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) take immediate necessary actions to prioritize the health and safety of attorneys and clients at risk in response to the COVID-19 pandemic.
The American Immigration Lawyers Association (AILA), the Immigration Justice Campaign— a joint initiative of the American Immigration Council and AILA—represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) call for the government to take the following measures:
suspend in-person immigration hearings for detained individuals and provide robust remote access alternatives for detained individuals who wish to proceed with their hearings for the duration of the COVID-19 pandemic;
guarantee secure and reliable remote communication between noncitizens in detention and their legal representatives;
provide Personal Protective Equipment for detained noncitizens and legal representatives who need to meet in person in facilities where PPE is required for entry;
alternatively, release detained immigrants who have inadequate access to alternative means of remote communication with legal representatives or with the immigration court.
The global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. The Centers for Disease Control and Prevention has specifically highlighted in-person court appearances as a risk factor for coronavirus outbreaks. Federal courts and the Bureau of Prisons via the Attorney General have taken measures to minimize the health risk. Yet, EOIR, a component of DOJ which oversees immigration courts, has not taken the same protective measures and most immigration courts remain open for business, putting the health and safety of attorneys and clients at risk. The CDC has also highlighted the particularly acute dangers of COVID-19 outbreaks in detention, and more than 3,000 public health experts have called for the release of immigrants from detention. However, ICE has refused to take measures to release or protect immigration detainees from harm and continues to transport them back and forth from courthouses while denying them critical access to counsel during this crisis.
AILA Director of Federal Litigation Jesse Bless stated, “Simply put, EOIR and ICE need to adopt flexible measures to ensure safety for respondents and ensure access of counsel is not denied. Access to counsel is integral to the fundamental constitutional right to due process and recent incoherent and contradictory policies from EOIR and ICE are endangering the health and constitutional rights of countless individuals, including members of their own staff.”
Immigration Justice Campaign Director at the American Immigration Council Karen Siciliano Lucas said, “Through our Immigration Justice Campaign, we have seen what the COVID-19 pandemic means for our volunteer attorneys and their clients in detention. They struggle to communicate with each other and have real concerns about how they can fairly present their immigration cases. The government must immediately close immigration courts and utilize remote opportunities until the coronavirus is under control to protect the health of immigrants, immigration judges, court staff, and surrounding communities alike. Our nation is only as healthy as its people. We must call on our leaders to do all they can to protect and care for everyone—regardless of immigration status.”
“EOIR and ICE have failed to take critical actions necessary to protect the health and safety of detained immigrants and their attorneys, creating disastrous public health conditions in detention centers and at immigration courts,” said Sirine Shebaya, Executive Director of the National Immigration Project. “Instead of releasing immigrants who do not need to be detained, ICE is choosing to keep them detained and deprive them of access to counsel, while EOIR proceeds with their hearings as though nothing has changed. The agencies must take the necessary measures to provide access to counsel and ensure the availability of robust alternatives for detained immigrants and attorneys who cannot proceed with in-person hearings at this time.”
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
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. Follow AILA on Twitter @AILANational.
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As the Trump regime intentionally puts the public at risk in Immigraton Court and DHS’s “New American Gulag,” the public officials supposedly in charge of protecting the pubic and insuring the integrity of justice continue to operate with “malicious incompetence” and “criminal negligence.” Kakistocracy is bad! But, it becomes life-threatening in the time of true (rather than the regime’s usual bogus) emergency!
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round TableHon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)Laura Lynch Senior Policy Counsel AILAFanny Behar-Ostrow ESQ Assistant Chief Counsel, DHS President AFGE Local 511
From Dan Kowalski over @ LexisNexis Immigration Community:
More than 70 Organizations Call on DOJ to Immediately Close All Immigration Courts During the COVID-19 Pandemic
AILA Doc. No. 20032630 | Dated March 26, 2020 | File Size: 596 K
On March 26, 2020, more than 70 organizations joined AILA, the National Association of Immigration Judges (NAIJ), and the ICE Professionals Union, to call on the Department of Justice to immediately close all immigration courts during the COVID-19 pandemic.
RE: THE DOJ MUST IMMEDIATELY CLOSE ALL IMMIGRATION COURTS DURING THE COVID-19 PANDEMIC
Dear Attorney General Barr and Director McHenry,
Following previous calls by the National Association of Immigration Judges (NAIJ), the American Federation of Government Employees (AFGE) Local 511 (ICE Professionals Union), and the American Immigration Lawyers Association (AILA) for the temporary closure of all immigration courts, we, the undersigned international, national, state, and local immigration, civil rights, faith- based, government accountability, and labor organizations urge the U.S. Department of Justice (DOJ) to immediately close all 68 Immigration Courts operated by the Executive Office for Immigration Review (EOIR) in adherence with current public health protocols regarding the COVID-19 virus.
On the evening of March 17, EOIR postponed all non-detained hearings and recently postponed all of the Migrant Protection Protocol hearings (MPP) scheduled through April 22, 2020. However, more aggressive action is needed. While these policies are a step in the right direction, they fall far short of the required action called for by this pandemic emergency. The detained courts must also be closed to in-person hearings in order to minimize the spread of the virus, slow the rate of new infections, and to avoid overwhelming local resources.
Given the particular vulnerability of respondents in detained settings, the use of telework, which has been advocated by the Administration, can and should be quickly put in place. Immigration Judges stand ready and able to work to ensure priority matters, including detained bond matters, are addressed using technological tools. DOJ should permit all detained respondents to immediately receive telephonic bond redetermination hearings with teleworking judges and allow supporting documents to be faxed and emailed to a designated point of contact. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.
The urgency for immediate, decisive action in this matter cannot be overstated. Every link in the chain that brings individuals to the court – from the use of public transportation, to security lines, crowded elevators, cramped cubicle spaces of court staff, packed waiting room facilities in the courthouses, and inadequate sanitizing resources at the courts – place lives at risk.
AILA Doc. No. 20032630. (Posted 3/26/20)
Every state and the District of Columbia have declared a state of emergency giving government leaders the opportunity to implement bold and unprecedented measures to slow and eventually
eliminate the spread of the virus. Some officials are releasing prisoners, allowing them to shelter in place at home. Cities, county, and state governments have moved swiftly to implement stay at home orders to ensure the protection of community members from this highly communicable virus. These measures include the scaling back of mass transit conveyances to most urban centers where the immigration courts are located, creating significant logistical problems for anyone needing to access the courts. On March 21, the Department of Homeland Security (DHS) announced that it
will now require all legal visitors to provide and wear personal protective equipment (PPE) (disposable vinyl gloves, N-95 or surgical masks, and eye protection) in order to enter any
detention facility, despite the nationwide shortage of PPE.
Yet EOIR continues to operate courts in a business-as-usual manner, placing court personnel,
litigants, and all community members in harm’s way. To make matters worse, DOJ and EOIR decision-making has been opaque, with inadequate information being released, causing confusion
and leading to litigants showing up at hearings that are cancelled without notice.
DOJ’s current response to the COVID-19 pandemic and its spread is frighteningly disconnected from the realities of our communities, and the advice of local leaders and scientific experts. DOJ must immediately implement the temporary closure all immigration courts. Failing to take this action now will exacerbate a once-in-a-century public health crisis and lead to a greater loss
of life.
If you have any questions, please do not hesitate to contact Laura Lynch, Senior Policy Counsel, AILA (llynch@aila.org), Judge Ashley Tabaddor, President, NAIJ (ashleytabaddor@gmail.com), or Fanny Behar-Ostrow, President, AFGE Local 511 (fbehar1@gmail.com).
Sincerely,
Fanny Behar-Ostrow ESQ Assistant Chief Counsel, DHS President AFGE Local 511
Advocates for Basic Legal Equality, Inc.
America’s Voice
American Federation of Government Employees (AFGE) Local 511 American Immigration Council
American Immigration Lawyers Association (AILA)
Americans for Immigrant Justice, Inc.
Amnesty International USA
Arizona Coalition to End Sexual and Domestic Violence
Asian Pacific American Labor Alliance, AFL-CIO
Asian Pacific Institute on Gender-Based Violence
ASISTA
Association of Deportation Defense Attorneys, Inc.
Ayuda
Capital Area Immigrants’ Rights (CAIR) Coalition
Catholic Legal Immigration Network, Inc.
Center for Gender & Refugee Studies
AILA Doc. No. 20032630. (Posted 3/26/20)
Center for Victims of Torture
Central American Resource Center
Coalition for Humane Immigrant Rights (CHIRLA)
Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces End Domestic Abuse Wisconsin
Evangelical Lutheran Church in America
Federal Bar Association Immigration Law Section
*Disclaimer, this is the position of the Immigration Law Section and not the Federal Bar Association as a
whole.
Freedom Network USA
Government Accountability Project
Her Justice
HIAS
Human Rights First
Human Rights Initiative of North Texas
Illinois Coalition Against Domestic Violence
Immigrant Families Together
Immigration Equality
International Federation of Professional and Technical Engineers International Rescue Committee
InterReligious Task Force on Central America
Just Neighbors
Justice for Our Neighbors-Michigan
Las America’s Immigrant Advocacy Center
Latin America Working Group
Leadership Conference of Women Religious
League of United Latin American Citizens
Legal Aid Justice Center
Montana Coalition Against Domestic and Sexual Violence National Advocacy Center of the Sisters of the Good Shepherd National Association of Immigration Judges
National Council of Jewish Women
National Justice for Our Neighbors
National Latina Institute for Reproductive Justice
Nebraska Coalition to End Sexual and Domestic Violence Neighbors Immigration Clinic
NETWORK Lobby for Catholic Social Justice
New York Immigration Coalition
New York Justice for Our Neighbors
Northern Illinois Justice for Our Neighbors
Ohio Immigrant Alliance
Pax Christi USA
Restoration Immigration Legal Aid
Rian Immigrant Center
Round Table of Former Immigration Judges
Santa Fe Dreamers Project
Sisters of Mercy of the Americas Justice Team
AILA Doc. No. 20032630. (Posted 3/26/20)
South Texas Human Rights Center
Tennessee Justice for Our Neighbors
The Florence Immigrant & Refugee Rights Project
The Leadership Conference on Civil and Human Rights
Ujima Inc: The National Center on Violence Against Women in the Black Community Vermont Network Against Domestic and Sexual Violence
Virginia Coalition for Immigrant Rights
Virginia Coalition of Latino Organizations
Virginia Interfaith Center for Public Policy
Washington Office on Latin America
Washington State Coalition Against Domestic Violence
Wellspring United Church of Christ
Young Center for Immigrant Children’s Rights
AILA Doc. No. 20032630. (Posted 3/26/20)
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Pretty disturbingly graphic example of how little EOIR & the DOJ care about the health, safety, and welfare of their own employees, let alone the public they have long ceased serving!
Also appreciate the courageous leadership of AFGE Local 511 President and DHS Assistant Chief Counsel Fanny Behar-Ostrow in joining the effort to end the regime’s reckless insanity. An “Honorary Member” of the NDPA to be sure! Folks like Fanny, Ashley, Laura, Jeff, and Dan are among America’s unsung heroes! Thanks for all you do!
Due Process Forever! Political “Courts” Endangering Public Welfare & Safety, Never!
WASHINGTON, DC — The American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) filed a lawsuit Tuesday in federal court to compel the Department of Justice’s (DOJ) Office of Information Policy (OIP) to release records about the Executive Office for Immigration Review’s (EOIR) hiring procedures for appellate immigration judges and Board of Immigration Appeals (BIA) Members. The lawsuit seeks to understand current hiring procedures for the BIA—the highest administrative body for interpreting and applying immigration laws—after reports came to light of anti-immigrant bias in the hiring process.
The DOJ—which oversees immigration courts, houses the BIA, and employs immigration judges—has failed to disclose critical information about the hiring policy of appellate immigration judges and BIA Members, who make precedential decisions in the immigration adjudicatory system.
Advocates and policymakers have become concerned that DOJ’s hiring practices for appellate immigration judges and Board Members are improperly influenced by the Trump administration’s anti-immigrant policies. Biased hiring practices for these judges are a concern for the public because these judges can set legal precedent that has the potential to negatively impact thousands of immigrants seeking protection and/or a path to lawful status in the United States.
The lawsuit, filed in the U.S. District Court for the District of Columbia, challenges DOJ’s failure to disclose information in response to a Freedom of Information Act request submitted in October 2019.
“The fairness of the immigration court system depends on the impartiality of judges who are responsible for deciding thousands of cases each year. If appellate judges are not neutral decision-makers, the integrity of our immigration system is compromised,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council. “The lack of transparency in this hiring process only serves to undermine public confidence in this system.”
“It’s imperative that the public, policymakers, and stakeholders be provided with the opportunity to review the thus far opaque hiring process at the BIA. Allegations of politicized hiring give rise to the notion that BIA decisions serve the political purposes of the attorney general, rather than adhere to prior case law,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
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. Follow AILA on Twitter@AILANational.
Cite as AILA Doc. No. 20031937.
Laura A. Lynch, Esq.
Senior Policy Counsel
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The whole idea that a White Nationalist prosecutor and political toady like Billy Barr gets to hire the “judges” for a so-called “appellate tribunal” is as absurd and illogical as it is clearly unconstitutional. The perversion of our humanity and our legal institutions that has allowed this to operate in plain view as if it were “normal” should be a subject for reflection and study. That the Supremes andCongress both took a “dive” on this is beyond question. How they got away with it and continue to do so without any accountability is another story. Hopefully, at some point it will be told in full.
In particular, the anti-asylum bias of the regime has been aggravated by a large dose of anti-Latino racism and misogyny that both Congress and the Article III Courts have enabled and, in the case of the Supremes actively encouraged by rewarding the clearly disingenuous and misleading arguments of Solicitor General Noel Francisco on fabricated “emergencies” and bogus rationales for transparently invidious and irrational actions.
DUE PROCESS FOREVER! CLOWN COURTS 🤡🤡 AND THEIR COMPLICIT ENABLERS, NEVER!
For weeks, public health officials have warned that the coronavirus will spread rapidly in the United States but the infection rate could slow with social distancing and severe restrictions on mass gathering. The nation’s judiciary did not listen. Civil, criminal, and immigration courts continued to operate normally, with very few exceptions, until late last week. Even on Monday, after both the president and most governors had declared a state of emergency, a huge number of America’s courts continued to operate, forcing judges, attorneys, litigants, defendants, immigrants, and court staff into close quarters with potentially infected individuals. Conversations with more than two dozen lawyers and court staff (who requested anonymity to avoid professional blowback) across the country reveal a system that is disastrously unprepared for a pandemic—and facilitating the coronavirus’s spread.
Because the American judiciary is so decentralized, there is no single contingency plan that governs all courts in case of an emergency. Most state and federal courts are making up their own rules as they go. All 94 federal district courts and 13 federal appellate courts are scrambling independently to devise a strategy for COVID-19. In many states, individual trial and appeals courts are also struggling to meet their legal obligations without contributing to the spread of the virus. Immigration courts are under the control of the discombobulated and ineffectual Trump administration. So are agencies, like the Social Security Administration, that hold administrative hearings to adjudicate individuals’ access to public assistance. Meanwhile, thousands of jails, prisons, and immigrant detention facilities remain unwilling or unable to meaningfully address COVID-19, putting both detained people and staff at risk of infection. The legal system is actively jeopardizing millions of people’s health and lives.
The legal system is actively jeopardizing millions of people’s health and lives.
State judiciaries’ sluggish response to the crisis was on display Monday in courtrooms around the country. Slate spoke with defense attorneys in Florida, New Jersey, New York, North Carolina, Washington state, and the District of Columbia who witnessed large groups of defendants congregating in courthouses after police arrested them for low-level offenses. Many people had been jailed for at least one night for crimes like driving without a permit and possession of drug paraphernalia. In northern New Jersey, according to an attorney who was present, a prosecutor argued on Monday that defendants are, in fact, safer from the virus behind bars. But a defense attorney in the region told Slate that her clients in jail have no access to soap or toilet paper.
. . . .
As of Monday, federal district courts around the country were still in operation, though many had suspended jury trials. Chief Justice John Roberts, the head of the federal judiciary, has not issued public guidance to these courts, leaving them to fend for themselves. The chief judge of each federal district court must decide when, and if, to shutter completely. Similarly, the chief judge of each federal appeals court must determine how, and if, to hold oral arguments, and how to keep deciding cases in spite of the interruption. The Supreme Court has canceled March’s oral arguments.
Many immigration courts, which are controlled by the Executive Office for Immigration Review at the U.S. Department of Justice, were still operating on Monday too. EOIR cancelled all master calendar hearings on Sunday—these are short hearings, scheduled months or years in advance, that typically begin the deportation process. But courts are still holding other kinds of hearings, except in Seattle, whose immigration court has shut down entirely. According to a DOJ official at the Los Angeles Immigration Court, the agency has failed to provide employees with any meaningful guidance. This official told Slate that last week, a court administrator told staff that COVID-19 is “like the flu” and “not a big deal.” All last week, she said, “people were coming into courtrooms sick.” EOIR was just beginning to develop a telework plan on Monday and was withholding all information about future operations from staff.
An employee at the New York City Immigration Court spoke of similar disarray. This individual told Slate that her supervisor ignored repeated pleas to mitigate the risk of infection to staff. Immigrants with symptoms of COVID-19 have repeatedly appeared in court. When judges canceled hearings for the day to limit exposure to these individuals, this supervisor reportedly expressed anger that they had not simply moved to a different courtroom.
On Sunday, the union representing Immigration and Customs Enforcement prosecutors joined immigration judges and lawyers to call on the Department of Justice to shutter immigration courts entirely. This unprecedented alliance of frequent foes condemned the DOJ’s response as “insufficient” and “not premised on transparent scientific information.” (The agency has yet to answer this letter.)
There are currently more than 50,000 individuals in immigrant detention. There are already coronavirus outbreaks cropping up at these detention facilities. But the government has put forth no comprehensive plan to test and treat patients. The same is true for inmates in state and federal facilities. A defense attorney in King County, Washington—a COVID-19 hot spot—told Slate on Monday that “there is no plan to protect people in jail from coronavirus. People are still held on nonviolent charges, and people are still cycling through on all sorts of minor charges.” As long as police continue to arrest individuals for low-level offenses, these people will be put in jail and then sent to a courthouse. Even if prosecutors decline charges, these individuals may have already been exposed to the virus and could spread it.
. . . .
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Read the complete article at the link.
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Laura Lynch Senior Policy Counsel AILA
Here’s the latest from Laura Lynch over at AILA:
The Honorable William P. Barr Attorney General
U.S. Department of Justice
James McHenry
Director
Executive Office for Immigration Review
Matthew T. Albence
Deputy Director and Senior Official
U.S. Immigration and Customs Enforcement
Submitted via email
March 16, 2020
Dear Attorney General Barr, Director McHenry, and Deputy Director Albence,
The American Immigration Lawyers Association (AILA) is writing to follow up on our March 12, 2020 letter requesting that Immigration and Customs Enforcement (ICE) immediately implement procedures for the prevention and management of COVID-19 and our March 15, 2020 statement calling for the emergency closure of the nation’s immigration courts, sent in conjunction with the National Association of Immigration Judges (NAIJ) and the American Federation of Government Employees (AFGE) Local 511 (the Immigration and Customs Enforcement (ICE) Professionals Union).
We appreciate the important measures already taken by the Department of Homeland Security (DHS) and the Department of Justice (DOJ), including the suspension of non-detained master calendar hearings. However, the evolving nature of this crisis demands more aggressive action. Since our initial letter to ICE, President Donald Trump proclaimed that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. States and localities across the country have suspended school, put in place restrictions on the size of gatherings, closed restaurants and bars, and shut down tourist activities.
DOJ and DHS must acknowledge the severity of this pandemic, and take the following steps to protect DOJ employees, DHS employees, respondents, representatives, interpreters, experts, and other immigration court stakeholders, as well as the general public:
• Immediately Close Immigration Courts: DOJ should immediately close immigration courts for a minimum of two to four weeks so that public health officials have an opportunity to test and gain valuable information about who can transmit the COVID-19 virus and to reassess how to ensure a safe environment for immigration court hearings.
AILA Doc. No. 20031666. (Posted 3/16/20)
• Hold Telephonic Bond Hearings and Stipulate to Bond in Writing: DOJ should proceed with fully telephonic bond hearings so that detained individuals who are eligible can be released from custody as soon as possible and allow supporting documents to be faxed and emailed to the appropriate clerk. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.
• Cancel ICE Check-Ins: ICE should cancel and/or reschedule all OSUP and/or ISAP appointments that are scheduled for at least the next 60-90 days and extend the same for several months as conditions warrant.
• Immediately Release Anyone With Vulnerabilities from Custody: ICE should immediately release vulnerable populations from ICE custody, including people 60 and over, pregnant people, and people with chronic illnesses, compromised immune systems, or disabilities, and people whose housing placements restrict their access to medical care and limit the staff’s ability to observe them.
• Decrease the Number of People in Detention to Limit Exposure: ICE should liberally use its discretion to release individuals from custody and decrease the overall ICE population, including through the increased use of parole authority, stipulating to bond in written motions, and use of alternatives to detention (with no check-in requirements for thirty days or more).
• Take Proper Care to Prevent Transmission in Custody: ICE should immediately test detainees who exhibit any symptoms and/or present risk factors, as delayed confirmation of cases will necessarily be too late to prevent transmission. ICE should also provide proper hygienic supplies at all ICE detention and check-in facilities, allowing easy access to all detained persons, the population under ICE supervision, and ICE staff. ICE should halt transfers from facility-to-facility and to out-of-state locations in order to prevent the spread of the coronavirus throughout individual states and the U.S.
• Allow Stays of Removal and Other Emergency Motions to Be Submitted Via Mail: ICE should allow requests for stays of removal, and other emergency motions, to be submitted by mail instead of requiring an in-person filing with the applicant present.
• Issue a Blanket Extraordinary Circumstances Exception for One-Year Filing Deadlines: DOJ should issue a blanket extraordinary circumstances exception for asylum one-year filing deadlines that fall from March 1, 2020 (the beginning of the National Emergency) through the reopening of immigration courts.
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AILA Doc. No. 20031666. (Posted 3/16/20)
• Provide Flexibility on All Deadlines: ICE and DOJ should liberally agree to and/or grant requests to extend filing deadlines based on imposition of remote work, loss of staff, necessity for child, elder, and family care based on school and institutional closures.
• Commit to Flexibly and Favorably Addressing COVID—19-Caused “Age Outs” on a Case-By-Case Basis. In the context of cancellation of removal for nonpermanent residents under INA § 240A(b), the Board of Immigration Appeals has acknowledged its ability to review the particular facts in a case in addressing a respondent’s argument that the age of qualifying relative should be “frozen” prior to the final administrative decision. Matter of Isidro, 25 I&N Dec. 829, 832 (BIA 2012) (rejecting respondent’s contention that age should be locked where there was no “undue or unfair delay” in the course of proceedings); see also Martinez-Perez v. Barr, No. 18-9573 (10th Cir. 2020) (BIA has jurisdiction and authority to interpret cancellation statute in a way that fixes the age of respondent’s daughter in light of undue or unfair delay).
• Stipulate to Relief When Appropriate, Especially in Detained Cases: ICE should stipulate to relief in cases where individual hearings are already scheduled, but must be re-calendared based on COVID-19 disruptions, and where the record in itself demonstrates that the respondent has meaningfully met her burden of proof based on a well-developed record of proceedings and evidentiary submissions that compel a grant of relief from removal.
• Parole Respondents in the Remain in Mexico Program: DHS should parole all respondents in the Remain in Mexico program (also known as MPP) into the U.S. on the date of their scheduled immigration court hearing date and provide them with a new hearing date in a non-detained court. At a minimum, EOIR must work with CBP to issue a new EOIR hearing notice and CBP must provide the respondent with both the new EOIR hearing notice and an MPP tear sheet. If the respondent does not have an MPP tear sheet containing a future U.S. immigration court date, the respondent would be out of status in Mexico and Mexico’s migration institute (INM) will likely refuse to renew the individuals’ temporary status in Mexico.
We respectfully request a response as soon as possible given the emergent circumstances. Please feel free to contact Kate Voigt (kvoigt@aila.org) with questions.
Sincerely,
THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
CC: Barbara M. Gonzalez, Assistant Director, ICE Office of Partnership and Engagement; Richard A. Rocha, ICE Spokesperson; Lauren Alder Reid, Assistance Director, EOIR Office of Policy.
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AILA Doc. No. 20031666. (Posted 3/16/20)
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So, the spread of the coronavirus worldwide was months in the making. Why didn’t Roberts convene a meeting of the Judicial Conference, the Administrative Office, and the ABA to come up with an emergency plan?
Why didn’t EOIR, which has time for endless counterproductive “management” (actually “mismanagement”) nonsense (how about “judicial dashboards” for a mindless waste of time and money?), get together with the NAIJ, ICE, and AILAmonths ago to develop an emergency response plan for the Immigration Courts? No, the “powers that be” at EOIR were too busy trying to “decertify” the NAIJ with frivolous and unethical litigation.
Once this emergency is over, America also needs a top to bottom re-examination of the leadership and administration of our diverse judicial systems. As a whole, they are obviously “not quote ready for prime time” (“NQRFPT”) when it comes to protecting the public or using technology for the common good.
Obviously, at many levels, Federal, State, and Local, we have some of the wrong people serving as judges. First and foremost, the law is about humanity and protecting and saving lives to the greatest extent possible. That’s a fundamental human message that Roberts and many other right wing judicial zealots, out of touch with the needs of the public and wedded to stilted semi-absurdist and contrived interpretations of the law, simply don’t get. America needs better judges, with some empathy, humanity, and common sense! Again, it won’t happen overnight, but we have to start somewhere to get anywhere in the future!
(CNN)The union representing immigration judges urged the Trump administration in a letter Monday to “immediately” implement steps to protect judges and their staff and provide guidance on how to proceed amid the coronavirus outbreak, which also has the potential to exacerbate the overwhelming backlog of pending cases.
The letter calls for the Executive Office for Immigration Review, an agency within the Justice Department that oversees the nation’s immigration courts, to inform employees about the plan “as it relates to a potential pandemic,” noting that some immigration court functions “may not lend themselves to telework.”
“As you know, our work requires us to be in close contact with the public on a daily basis, often in very large numbers and groups,” wrote Judge Ashley Tabaddor, president of the National Association of Immigration Judges.
She continued: “Beyond our own employees, the respondents who come before us may also be at high risk for developing serious illness. Because we order their appearance and they face the prospect of removal if they don’t appear, sick respondents and respondents vulnerable to serious illness will keep coming to court unless we take action.”
As concerns over the coronavirus ramp up, some government agencies, businesses and organizations have taken steps to try and prevent the spread of the disease by preparing for employees to telework, limiting travel and canceling gatherings.
In Monday’s letter, the union asked the Trump administration to consider measures such as waiving the appearance of some respondents, allowing for telephonic appearances and limiting in-court paper filings. The union is also recommending in an email to the workforce that judges keep bottles of hand sanitizer in the courtroom, use disinfecting wipes to clean surfaces and limit court attendance.
Any change in daily operations is critical in immigration court, which faces a pile-up of pending cases. Immigrants fighting deportation generally have a chance to make their case in court, where they can ask a judge to allow them to stay in the US by arguing they qualify for asylum or another legal option.
Last year’s US government shutdown, which resulted in some cases being postponed, exacerbated the long-standing issue and added to the backlog. There are more than 1 million pending cases before the immigration courts, according to Syracuse University’s Transactional Records Access Clearinghouse or TRAC, which tracks immigration court data — resulting in cases being scheduled out years in advance.
TRAC estimated last year that between 80,000 and 94,000 immigration court hearings may have been canceled as a result of last year’s government shutdown. The only cases that moved forward during that time were those of immigrants in detention.
The concerns held among immigration lawyers Monday are reminiscent of the government shutdown.
Immigration attorneys are worried about the effect on the backlog of cases if judges, attorneys, and other stakeholders are out because of the illness.
“If this thing gets out of control, it’s always a problem when cases are canceled, given the backlog,” Lawrence K. Le Roy, an immigration lawyer based in Newark, said in reference to coronavirus.
John Leschak, an immigration attorney, had a hearing scheduled Monday at the Newark immigration court for a client seeking asylum in the United States. The judge was not in court and the hearing was postponed. It’s unclear whether the reason behind the judge’s absence was related to coronavirus.
“It’s unfortunate because it’s a case that’s been pending for a long time,” Leschak said. “We’re between a rock and a hard place.”
The coronavirus is also already impacting the operations of some federal courts across the US.
For example, a district court in Washington state and the 9th Circuit Court of Appeals, which hears cases from nine western states including Washington, altered some of the procedures as the virus continues to spread. Washington has seen at least 80 cases.
Unlike other courts, however, immigration courts fall under the executive branch, not the judicial branch.
Ariane de Vogue and Kevin Bohn contributed to this story.
Laura A. Lynch, Esq.
Senior Policy Counsel
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Thanks Laura, my friend, for keeping us up to date. And, as always, thanks to Priscilla for her great reporting on the never-ending mess and continuing outages at EOIR.
When it comes to public service and professional court administration from “Headquarters,” “today’s EOIR is the pits.” And, that’s not a knock on Chief Judge Chris Santoro who is generally known as a “straight shooter” and a “problem solver.” I think that I’ve acknowledged before that he was always kind and supportive to me and helped me through some very difficult times in my career at Arlington. I’ll always be appreciative for that.
“Reading between the lines,” he was ordered by one of his “superior bozos” in EOIR’s ludicrous “chain of command” to issue the inane order and then to rescind it when everything “hit the fan.” Typical EOIR “march ‘em up the hill, then march ‘em down again nonsense,” that actually has an adverse effect on both internal morale and the public.
On the other hand, perhaps it’s time for those who know how screwed up and “maliciously mismanaged” this system is to “come out and join the resistance,” as others in our Round Table have done, some at considerable personal sacrifice (not me, of course — I was fortunate enough to be able and ready to retire from EOIR even before the current regime took over.) I have no doubt that someone with Chief Judge Santoro’s ample and diverse skill set could find employment in the private sector.
But, this “circus-like” incident raises deeper issues.
In what kind of “court system” are “judges” not allowed to post public notices issued by the CDC without saying “Captain May I?” The DOJ falsely claims that its “judges” are “policy officials.” Whoever heard of a “policy official” who couldn’t hang up a Government public health poster? This whole thing is an unbelievable farce! Why does it take a directive from “Headquarters” to rectify what should be a no brainer in any functioning court system?
And, what kind of “court system” (outside the military) reports to “headquarters.” You think that the U.S. District Courts in Washington called up John Roberts to see if it was OK to cancel trials because of a public health threat? I doubt it.
Why wasn’t NAIJ President Judge Ashley Tabaddor involved in the Coronavirus planning. She speaks for those “on the line” in contact with the public. Certainly, few issues could have a greater effect on “working conditions” than steps to prevent the spread of infectious disease. Why is the NAIJ forced to waste time complaining and going to such lengths when competent management would have involved them in advance planning months ago?
Imagine how much better this system would operate if it were run by real judges who hired professional court administrators to work for the public good, instead of maliciously incompetent clowns carrying out Stephen Miller’s fascist agenda?
As you know, I blame the Article IIIs and Congress for letting this deadly mockery of our Constitution and American Justice continue to operate — essentially to dehumanize, abuse, and sometimes kill. I trust the younger members of the NDPA, folks like Laura and her colleagues, and the next generations to see that the life-tenured judges and legislators who looked the other way and knowingly acted as enablers as human dignity, our Constitution, and the rule of law were trampled upon by a White Nationalist regime are held fully accountable in the “court of history.”
The “J.R. Five’s” toxically improper action in Wolf v. Cook County, skirting the rules to enable the regime’s illegal, racially motivated rewriting of the “public charge” rules to go into effect has been exposed for the outrageous politically biased action it is. It allows the regime to intentionally spread panic in ethnic communities, particularly targeting Hispanics, citizens, immigrants, and the undocumented, and to intimidate those who should be seeking health care advice from doing so. Nice public health policy. As if Coronavirus and other diseases know the difference between “documented” and “undocumented” humans. It’s likely that Roberts and his tone deaf cronies will have even more “blood on their hands” before this is over.
As I said on Courtside recently, in the future, we also need more courageous, scholarly, humane, and ethical Article III Judges — folks who will read the Constitution and stand up for individual rights and for human dignity — folks who understand as MLK once said that “injustice anywhere is a threat to justice everywhere.” The current group of Article IIIs is a national disgrace (as a whole, although there are many notable exceptions, mostly among the U.S. District Court Judges who all too often get reversed by the CAs and the Supremes as their “reward” for “standing tall” for the rest of us and standing up for the fair application of the rule of law).
In the meantime, NAIJ President Judge Ashley Tabaddor is a national hero for standing up for the due process rights of all and having the courage to “speak truth to power” in these perilous times. Obviously, the unethical “decertification action” started by DOJ and EOIR is part of the effort to punish and silence her.Hang in there Ashley! We in the NDPA and the Round Table support and appreciate you and your tireless efforts!
Due Process Forever! Clown Courts 🤡& Complicit Article III Courts Never!
Today AILA, the American Immigration Council, and 52 additional organizations sent a letter to members of Congress, urging them to establish an independent immigration court! This letter was sent in advance of tomorrow’s twitterstorm that aims to bring attention to the dysfunction in the immigration court system and call for reform.
Twitter: You can retweet AILANational’s tweet or use some of the sample tweets below.
· Click to tweet: Case-completion quotas force immigration judges to rush through cases, often at the expense of due process. This assembly-line justice is unacceptable. Read the letter @AILANational & others sent to Congress calling for independent courts. http://ow.ly/mV3730qiMW5
· Click to tweet: The Trump administration’s certification decisions have undermined due process and weakened protections for asylum seekers. Read more in this letter @AILANational and over 50 orgs sent to Congress. #JudicialIndependence http://ow.ly/mV3730qiMW5
· Click to tweet: Due process and #JudicialIndependence should never be sacrificed in the name of political expediency. Read the letter @AILANational sent with over 50 other orgs calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5
Sample LinkedIn/Facebook Post: Please share AILA’s Facebook post or use sample post below.
Due process and judicial independence should never be sacrificed in the name of political expediency. Read the letter AILA National sent with 50 other organizations calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5
You can share tweets from our social media toolkit or craft your own using the hashtag #JudicialIndependence. Looking forward to seeing you on Twitter!
4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
Atemnkeng v. Barr, 4th Cir. Jan. 24, 2020, published
PANEL: GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
OPINION BY: Chief Judge Gregory
KEY QUOTE:
Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in
anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.
On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.
In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is
meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2
further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.
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When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
By Paul Wickham Schmidt
“Courtside” Exclusive
Jan. 1, 2020
Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!
After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?
Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.
Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.
Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.
When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.
Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.
Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.
What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.
Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.
The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.
And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.
It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?
The Trump administration recently agreed to open its “tent courts,” makeshift tribunals where immigrants made to wait in Mexico attend hearings, but lawyers and legal observers say the set up still fails to give the public full access.
Attorneys and advocates said the government is still keeping the public out of what some consider to be the most important part of immigration court proceedings by using judges located inside a Fort Worth, Texas, facility that is closed to the public. The hearings are where immigrants get the opportunity to present arguments and evidence as to why they should be allowed to stay in the US.
Judges at the Fort Worth Immigration Adjudication Center, which the public has no access to, are overseeing the individual merits hearings via video that’s beamed into “tent courts” in Brownsville, Texas. At the same time, the public has also been barred from attending the hearings in person at the “tent court,” effectively closing off public access.
“It’s highly problematic,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “Using these adjudication centers and judges is clearly intentional. The agency is trying to operate these cases in secret.”
The facilities in Falls Church, Virginia, and Fort Worth were created by the Justice Department’s Executive Office for Immigration Review (EOIR), which oversees the nation’s immigration courts, as a way to reduce its growing case backlog.
Denying public access is especially concerning because most immigrants in “Remain in Mexico,” formally known as the Migrant Protection Protocols (MPP), are not represented by an attorney, Lynch said. An analysis of 56,004 MPP hearings found that only 4% of immigrants are represented by a lawyer, the rest are having to make their case on their own.
“Many immigrants are walking into these tent courts unrepresented,” Lynch said. “And there’s no way to observe them.”
EOIR refused to confirm whether judges at the adjudication center were listening to merits hearings in Brownsville. But attorneys with clients at the Brownsville “tent court” confirmed to BuzzFeed News that they’ve had cases before judges at the Fort Worth adjudication center and have been rescheduled to judges there in the future.
“All immigration judges hear all case types. Due to pending litigation, we have no further comment,” said Kathryn Mattingly, a spokesperson for EOIR.
The Department of Homeland Security and Customs and Border Protection did not immediately respond to requests for comment.
In September, DHS opened two temporary court facilities along the Texas border, one in Brownsville and another in Laredo for immigrants in the “Remain in Mexico” program. Judges in brick and mortar courts throughout the US, officials said, would hear their cases and make rulings via video.
When the “tent courts” started their first hearings, they were immediately criticized for its lack of transparency because reporters, legal observers, and the public couldn’t attend hearings from inside.
Instead, DHS and EOIR said the public could attend the hearings by going to the courtroom where the immigration judges, who would be video conferenced into the “tent courts,” were physically at. But that’s not possible when immigration judges hear merits hearings from adjudication centers closed to the public.
In general, immigration courts are open to the public, although according to the Justice Department, immigrants can request that merits hearings be closed.
At the Brownsville “tent courts,” however, merits hearings are closed automatically by design, said Andrew Udelsman, a fellow in the Texas Civil Rights Project’s racial and economic justice program.
“The case right now appears to be a blanket rule that the public has no access to MPP merits proceedings and that is illegal,” Udelsman told BuzzFeed News. “There is a First Amendment right of public access to court proceedings. That right is being violated by this blanket denial of access to merit proceedings.”
Demonstators, all part of a grassroots group called Witness at the Border supported by ACLU Texas and Children’s Defense Fund Texas, gather to protest outside the Brownsville “tent courts.”
Last week, Reynaldo Leaños Jr., a reporter with Texas Public Radio, tried to attend a merits hearing at the Brownsville “tent court” after a Cuban asylum-seeker invited him to attend. Yet private security contracted by the government told Leaños no one was allowed into the hearings.
Asked by BuzzFeed News why that was the case, a security guard with Ahtna at the facility, who declined to give his name, said it was because the shipping containers the merits hearings are held in were too small to accommodate additional members of the public.
Norma Sepulveda, an immigration attorney who had a hearing last week in Brownsville with a judge located in Fort Worth, said it was “ridiculous” that the merits hearings were being held inside small shipping containers that only fit seven people.
“I don’t know why they put us in these tiny rooms to hold the hearings other than to say there’s no space for anyone else to be present,” Sepulveda told BuzzFeed News. “These hearings are being scheduled with these judges intentionally to be able to conduct them without any oversight.”
Sepulveda said her client’s son, a resident of the US, was initially listed as a witness in the case and was allowed into the room. However, when Sepulveda said she was no longer going to call him to testify he was removed from the room by private security.
“It’s clear to me that the policy is no spectators, if you will, and no family support for individual hearings,” Sepulveda said.
Private security at the “tent courts” in Brownsville also enforcing different rules from one day to the next, that legal observers and attorneys said don’t make sense.
On the first day the public was allowed into the Brownsville facilities, private security agents said reporters weren’t allowed to attend hearings with a pen and notepad. Yet, on the second day they did allow journalists to take notes, but not observers like Udelsman of the Texas Civil Rights Project.
Private security officials are also only allowing the public to view master calendar hearings, the first time people see a judge, which tend to be short preliminary hearings. Requests to attend different master calendar hearings, other than the one room made available, were denied.
“They’re preventing anybody from being able to explain in the most accurate manner possible, what’s happening,” Udelsman said. “You’re prohibiting the public from knowing what’s happening in the courtroom and making life as difficult as possible for the few people who are able to report on what’s happening.”
Policy Brief: Public Access to Tent Courts Now Allowed, but Meaningful Access Still Absent January 10, 2020
Contact: Laura Lynch (Llynch@aila.org) or Leidy Perez-Davis (LPerez-Davis@aila.org)
In September 2019, the U.S. Department of Homeland Security (DHS) opened massive temporary tent facilities in Laredo and Brownsville, Texas, that function as virtual immigration courtrooms for vulnerable asylum seekers subject to Remain in Mexico. During the hearings, asylum seekers are held in tents at the ports of entry while judges appear remotely via video teleconference (VTC).
Unlike in other immigration courts, the government barred attorney observers, press, and the public from accessing these facilities, in violation of U.S. Department of Justice (DOJ) regulations requiring immigration hearings to generally be open to the public. Access to the tent courts is critical to ensuring due process, and AILA, along with several other organizations and numerous members of Congress, repeatedly voiced concerns about the lack of transparency. In response, and after months of public demand for access, the Wall Street Journal reported on December 29, 2019, that DHS directed component agencies to open the tent courts to the public.1
The DHS acknowledgement that transparency is both necessary and required is a vital first step toward upholding due process in tent courts. However, thus far, DHS and DOJ have operationalized this directive in a way that fails to allow meaningful access to the tent court facilities and imposed new hurdles to transparency by assigning immigration judges from the Ft. Worth Immigration Adjudication Center.
Tent Court Access Prior to December 29, 2019, Public Access Announcement
When DHS initially opened the tent courts in September 2019, it allowed only asylum seekers and their attorneys of record into the facilities. At one time, even support staff for attorneys of record such as interpreters and paralegals were restricted from entering the tents, though they were later allowed to accompany the attorneys. Attorney observers, press, and members of the public were categorically barred from the tent facilities while hearings were taking place. Representatives from AILA and other court observers were permitted to observe Master Calendar Hearings and Individual Merits Hearings only at the brick-and-mortar courtrooms where the judges appearing by VTC were located. However, remote observation is not an adequate substitute for access to the tent courts because observers are not able to assess how the proceedings are operating from the vantage point of the individual respondent, who is the most gravely impacted by these proceedings.
1 “In an effort to ensure consistency, clarity, and transparency, the acting secretary directed [component agencies] to formalize guidance for public access to these facilities, consistent with immigration courts across the country.” – DHS spokeswoman, Heather Swift. See Michelle Hackman, Wall Street Journal, U.S. Opens Immigration ‘Tent Courts’ to Public, Dec. 29, 2019.
1
Laredo and Brownsville Tent Court Setup from September 2019 through December 2019
Laredo Tent Court
Brownsville Tent Court
Laredo tent court proceedings, including both Master Calendar Hearings and Individual Merits Hearings, were conducted via VTC by immigration judges located at the brick-and-mortar San Antonio immigration court, which is nearly 200 miles away.
Brownsville tent court proceedings, including both Master Calendar Hearings and Individual Merits Hearings, were conducted by immigration judges located at the Harlingen and Port Isabel immigration courts, as well as the El Paso SPC, which is nearly 800 miles away from the Brownsville tent court.
● Respondents appeared in person at the Laredo tent court.
● Immigration judges from the San Antonio Immigration Court appeared via VTC.
● Attorneys of record appeared either (1) at the Laredo tent court or (2) via VTC from the San Antonio brick-and-mortar courtrooms.
● ICE trial attorneys located at the San Antonio Immigration Court appeared via VTC.
● Interpreters interpreted remotely from the San Antonio Immigration Court.
● Witnesses appeared either (1) at the Laredo tent court or (2) via VTC from the San Antonio brick-and-mortar courtrooms.
● Court observers were only permitted to observe Master Calendar Hearings and Individual Merits Hearings at the brick-and-mortar courts
● Respondents appeared in person at the Brownsville tent court.
● Immigration judges from Harlingen, Port Isabel, or El Paso SCP appeared via VTC.
● Attorneys of record appeared either (1) at the Brownsville tent court or (2) via VTC from the immigration judge location.
● ICE trial attorneys appeared via VTC from the immigration judge location.
● Interpreters interpreted remotely from the immigration judge location.
● Witnesses appeared either (1) at the Brownsville tent court or (2) via VTC from the immigration judge location.
● Court observers were only permitted to observe Master Calendar Hearings and Individual Merits Hearings at the brick-and-mortar courts.
Tent Court Access After December 29, 2019, Public Access Announcement
Master Calendar Hearings
Reports indicate that members of the press and public have been permitted to observe Master Calendar Hearings at the Brownsville and Laredo tent court facilities, in addition to the brick-and-mortar courts where the judges sit. However, this access has not been consistent with access allowed at other immigration courts across the country. For example, Master Calendar Hearings are generally open to the public, but in the tent courts, DHS personnel dictate particular Master Calendar Hearings the public is permitted to observe. Reporters and court observers have encountered other logistical hurdles, such as DHS prohibiting pens and notepads in the tents, which impede their ability to accurately observe and document the hearings.
Access to Individual Merits Hearings2
DOJ and DHS recently imposed significant new barriers that block the public’s ability to observe Individual Merits Hearings taking place at the Laredo and Brownsville tent courts. DOJ recently began assigning individual merits hearings to the Ft. Worth Immigration Adjudication Center (IAC) judges. The Ft. Worth IAC opened in October 2018 and is a remote-only facility that is closed to the public.3 Immigration judges
2 In order to observe asylum hearings, court observers need to obtain permission from the Respondent. See EOIR Immigration Court Practice Manual, Chapter 4.9, Public Access.
3 For more background information about IACs, please see the following materials: AILA’s Policy Brief: FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog, Feb. 21, 2019 (pgs. 4-5); The American Bar
2
AILA Doc. No. 20011061. (Posted 1/10/20)
stationed at these centers adjudicate cases from around the country via VTC. The public has not been permitted to observe hearings at the IAC. Previously, court observers have been able to watch IAC proceedings by video in courtrooms where the respondent and ICE attorney are located.
However, reports indicate that DHS has blocked access to Individual Merits Hearings at the tent courts. If that continues, it would mean that there is no location for court observers or the media to watch the Individual Merits Hearings of respondents in tent courts assigned to IAC judges. For example, an AILA member reported earlier this week that DHS prevented her client’s adult son who is a lawful permanent resident from attending his mother’s Individual Merits Hearing at the Brownsville tent court that was assigned to a judge located at the Ft. Worth IAC. The son was initially permitted to enter the hearing in the tent court because he was listed as a witness in the case. Once the hearing started, the AILA member informed the immigration judge that she did not intend to call the son as a witness and would instead rely on his declaration. Despite empty chairs in the hearing room, security made the son sit in the waiting area for the duration of the hearing because the policy does not permit observers to attend Individual Merits Hearings.
At best, utilizing Ft. Worth IAC immigration judges to adjudicate Individual Merits Hearings at tent courts introduces additional operational complexities. At worst, it will block all public access. See below for more information on how using IAC judges to adjudicate hearings at the tent courts is functioning. AILA is still gathering additional information.
Merits Hearings at Brownsville Tent Court Adjudicated by IAC Judges
● Respondents appear in person at the Brownsville tent court.
● Immigration judges from the Ft. Worth IAC appear via VTC.
● Attorneys of record appear at the Brownsville tent court.
● ICE trial attorneys from an unknown location appear via VTC.
● Interpreters interpret in person at the Brownsville tent court.
● Witnesses appear in person at the Brownsville tent court.
● AILA is still gathering more information on whether DHS and DOJ are
taking steps to facilitate court observers’ access to these hearings.
What Don’t We Know?
DHS and DOJ’s lack of transparency continues to create chaos for court observers at these two tent courts. Below are a few of the many key outstanding questions regarding access to the tent court facilities.
DHS indicated that it has developed formal guidance on public access to tent court facilities but has not yet shared this guidance publicly. Will DHS share this guidance with the public?
What steps are DHS and DOJ taking to ensure meaningful public access to observe both Master Calendar Hearings and Individual Merits Hearings conducted at the tent court facilities, consistent with access allowed at other immigration courts across the country?
In situations where immigration judges from an IAC are assigned to adjudicate Individual Merits Hearings at the tent courts, how will DOJ facilitate public access? Does DOJ have plans to open the IACs to the public in the future?
Association’s 2019 Update Report, Reforming the Immigration System (pgs. 81-82); and The American Immigration Council Blog, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
3
AILA Doc. No. 20011061. (Posted 1/10/20)
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Shouldn’t surprise anyone familiar with EOIR’s “Trump Era” user unfriendly policies, misinformation, xenophobia, and anti-Due-Process agenda.
I appreciate “NDPA superstars” Laura and Leidy keeping “on” this story. But, with Congress and the Article III courts taking a “pass” on their Constitutional functions (but, still collecting their paychecks), those “true patriots” like Laura and Leidy defending our Constitution and trying to preserve our democratic institutions face constant unnecessary “uphill battles” because of the dereliction duty by those charged with protecting the public good.
Immigration Tent Courts at Border Raise Due-Process Concerns
By
Michelle Hackman and
Alicia A. Caldwell | Photographs by Verónica G. Cárdenas for The Wall Street Journal
Dec. 14, 2019 9:00 am ET
BROWNSVILLE, Texas—Each morning well before sunrise, dozens of immigrants line up on the international bridge here to enter a recently erected tent facility at the U.S. border.
Inside a large wedding-style tent, the government has converted shipping containers into temporary courtrooms, where flat screens show the judge and a translator, who are in front of a camera in chambers miles away.
The tents, which appeared at ports of entry here and up the Rio Grande in Laredo in late summer, are the latest manifestation of the Trump administration’s evolving response to a surge of migrants seeking asylum at the southern border.
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Migrants are ushered to these courts dozens at a time, allowing them access to the U.S. legal system without admitting them onto U.S. soil. They are already part of yet another Trump administration experiment, the Migrant Protection Protocols, which requires migrants to live in Mexico for the duration of their court cases.
The administration says the tent courts are designed to help the immigration system move more quickly through cases, providing asylum faster for qualified applicants and turning away the rest—many of whom, the administration says, have submitted fraudulent claims.
In the past, nearly all families and children arriving at the border were allowed into the U.S. to await hearings. But now, tens of thousands of asylum seekers must wait months in Mexican border cities that have some of the highest crime rates in the Western Hemisphere.
Asylum seekers waited in line to attend their immigration hearings on the Gateway International Bridge in Matamoros.
On a recent Friday, Judge Eric Dillow connected with the Brownsville tent via videoconference from his courtroom in Harlingen, Texas, about 30 miles away. The migrants, seated at a folding table, were shown on a large screen.
Judge Dillow planned to hold hearings for 28 migrants that morning, but only 17 appeared at the bridge the requisite four hours before their 8:30 a.m. hearing. Only two brought a lawyer. The rest were read their rights as a group, and when asked if they had questions, none raised their hands.
James McHenry, head of the Executive Office for Immigration Review, the Justice Department agency that oversees immigration courts, said temporary courts adhere to the same procedures and offer the same rights to people as other immigration courts. “In all cases, a well-trained and professional immigration judge considers the facts and evidence, applies the relevant law, and makes an appropriate decision consistent with due process,” he said.
But immigrant-rights advocates and the union representing immigration judges—who are Justice Department employees—say the unique conditions of the tent courts deny migrants due process by depriving them of meaningful access to lawyers or interaction with judges, making the setup essentially a rubber stamp for deportation.
“It’s a system that’s designed in its entire structure to turn people away,” said Laura Lynch, senior policy counsel with the American Immigration Lawyers Association.
The judges union has expressed concern over numerous issues: Judges can’t interact with applicants face-to-face, which the union says is important to assess credibility. Immigration court officials aren’t in the tents, which are operated by U.S. Customs and Border Protection. Judges can’t hand migrants documents directly to ensure they contain no errors. Unlike most U.S. courts, the tents are closed to the public and press.
A Cuban asylum seeker waited in Matamoros to present his documents to the agent who will be escorting him to his immigration hearing.
“The space of the court is supposed to be controlled by the court,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges. “But the tents, we don’t have any control over.”
Most migrants who cross the border near Brownsville are sent to Matamoros, Mexico, just across the Rio Grande, where they live in shelters or tents near the bridge.
They are returned with little more than a sheet of paper stating their first court date and a list of lawyers to contact. But those contacts aren’t very useful because they have either U.S.-based or toll-free phone numbers that don’t function in Mexico.
Of the 47,313 people whose cases were filed between January and September, only 2.3% have legal representation and only 11 have been granted asylum or other legal status, according to the Transactional Records Access Clearinghouse at Syracuse University, which tracks immigration court data.
Pro-bono lawyers who work with these migrants are fearful to travel far beyond the U.S. border into Mexico. Inside the tents, lawyers are typically permitted 15 minutes to meet clients before hearings. In most other U.S. courts, lawyers are free to visit clients, and detention facilities provide more opportunities for meetings.
On two recent days in the tents, migrants appearing alone spent about five minutes each before a judge, while migrants with lawyers took between 20 and 30 minutes each.
“The system is dependent on individuals not finding representation because they can be deported much easier and faster,” said Jeff O’Brien, a California-based immigration lawyer representing several Brownsville clients pro bono. “If everyone had a lawyer, it would essentially come to a halt.”
A U.S. Customs and Border Protection agent checked documents presented by asylum seekers.
Documentation errors are a common hurdle. Applicants’ addresses are often listed on forms as simply “domicilio conocido,” which roughly translates as general delivery, or sometimes a Matamoros shelter that many migrants avoid because they are scared to travel farther into the city.
Tent camp residents also had notices for hearings when courts aren’t open: one at 1 a.m. and another on a Saturday.
It isn’t known how the government notifies these migrants about changes in their cases without valid addresses. Migrants who aren’t at the bridge for hearings are assumed to have abandoned their cases. Government lawyers ask judges to deport absentees—ending asylum requests and barring them from the U.S. for a decade.
Asked about how address discrepancies are handled, a Justice Department spokesman said judges follow the Immigration Court Practice Manual. The manual requires migrants in the U.S. to notify the court of address changes, and in cases where they are detained, it requires the government to notify the court where. Neither scenario applies to migrants in Mexico.
Without lawyers, applicants routinely make paperwork errors—such as submitting documents in Spanish, or documents translated into English without a form certifying the translator is English-proficient—that advocates say they have seen judges use to order them deported.
At a recent hearing in Brownsville, a Honduran woman and her baby daughter appeared before Judge Sean D. Clancy in Harlingen. A CBP officer in Brownsville had faxed the woman’s asylum application to Harlingen, where a clerk handed it to the judge.
A Central American asylum-seeking mother hugged her child on a November morning in Matamoros.
“Are you afraid of returning to Honduras?” Judge Clancy asked the woman. A translator beside him repeated the question in Spanish. “Very much,” came the translated reply.
Judge Clancy looked at her application and noted a different response. “One question here says, ‘Do you fear harm if you return to your home country?’ And you checked ‘no.’”
The woman appeared confused. Judge Clancy told her to return to court with a properly completed application on April 15, when a date for her full asylum hearing would be set.
What a total disgrace and mockery of justice! What do Circuit Court of Appeals judges do for a living if they don’t have the legal skills and courage to stand up for our Constitution and our asylum laws against US Government fraud and abuses like this?
Nobody without a lawyer has any chance in this system! With a representation rate of an astoundingly low 2.3% due to the Trump regime’s intentional obstacles, roadblocks, and refusal to promote and facilitate pro bono representation, this system is nothing less than an unconstitutional and illegal “killing floor” (a reasonable chance to be represented by pro bono counsel is actually a statutory requirement). You don’t have to be much of an Article III Judge to recognize the the systemic fraud and abuse going on here. But, a judge would have to have the courage to stand up to the Trump regime and put a stop to this disgraceful nonsense! Sadly, courage seems to be something in very short supply at the appellate levels of the Federal Judiciary these days.
Thanks Michelle and Alicia for exposing this ongoing parody of justice!
(CNN)More immigration judges will begin conducting hearings over video conferencing at tent courts along the US-Mexico border, raising concerns among lawyers about transparency in the immigration process.
Earlier this year, the Trump administration erected facilities in Laredo and Brownsville, Texas, to serve as makeshift courts for migrants seeking asylum in the United States who have been returned to Mexico until their court date. The judges in these cases are not at the tent facility but preside by teleconference from other immigration courts several miles away.
As of mid-September, there were 19 judges from three separate immigration courts in Texas hearing cases. But the latest expansion includes the use of immigration judges assigned to a center in Fort Worth, Texas, that is closed to the public, leaving little opportunity for people to observe hearings.
“I’m just very concerned that there will be no public access to these hearings. And hearings will be operating in secret, without any transparency and notice to the public,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.
US court proceedings are generally open to the public.
Adjudication centers serve as a hub for immigration judges who beam into courtrooms remotely to hear cases. There are two — one in Fort Worth and another in Falls Church, Virginia. Neither is open to the public.
Immigration judges assigned to the Fort Worth Immigration Adjudication Center are expected to begin hearing cases of migrants who fall under the administration’s “Migrant Protection Protocols” program via video teleconference in January 2020, according to the Justice Department’s Executive Office for Immigration Review, which oversees the nation’s immigration courts.
“Public access to hearings is governed by regulation, and EOIR’s process and policies surrounding the openness of hearings have not changed,” said EOIR spokeswoman Kathryn Mattingly.
Lynch said some attorneys representing migrants who have been waiting in Mexico for their court date began receiving notices of judges from the Fort Worth center assigned to their cases in late November. The immigration judges’ union has also taken issue with the use of the center.
“MPP is rife with issues but by assigning the adjudication centers to the tent courts takes us to a new low where public access to the court are now eliminated,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges. “This is not the way we as judges or courts should function.”
The process has already presented lawyers with a host of logistical challenges and some anticipate those will worsen as immigration judges assigned to adjudication centers begin hearing cases.
Currently, advocates and legal observers have been able to monitor proceedings from three immigration courts in Texas: Harlingen, San Antonio and Port Isabel.
US Customs and Border Protection said in a statement to CNN that access to the Laredo and Brownsville hearing facilities, which are located on the agency’s property, “will be assessed on a case-by-case basis when operationally feasible and in accordance with procedures for access to any CBP secure facility.”
Around 60,000 migrants have been subject to the administration’s policy that requires some migrants to wait in Mexico for the duration of their immigration proceedings. Given that they’re residing in Mexico, immigration lawyers based in the US have limited access to them, particularly in dangerous regions. Only a small share of migrants in the program have secured representation, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks court data and released a report on access to attorneys this summer.
Some in the legal community argue that access to the tent facilities, not just the immigration courts where the judges are located, is important for that reason — to give lawyers the opportunity to connect with migrants who may need legal representation and explain the process. It’s equally important, lawyers argue, that people be allowed to observe the proceedings.
“Without the public being able to see what’s been going on in these hearings, the public has no assurance that people are being given proper due process and proper shot at fighting their asylum case,” said Erin Thorn Vela, a staff attorney in the racial and economic justice program at the Texas Civil Rights Project.
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Wow! Secret Courts sentencing folks to torture or death without lawyers, adequate notice, time to prepare, or any consistent application of reasonable rules. Sounds like the “Star Chamber.” Is that why we fought the American Revolution? To create our own version of the worst abuses of the Crown? Apparently.
As American justice and the rule of law go down the tubes, the Supremes and the Circuits have become “disinterested observers,” at best.
Thanks to Laura Lynch at AILA for forwarding this latest example of judicial irresponsibility.
Gustavo Solis reports for the San Diego Union-Tribune:
By Gustavo Solis
Asylum seekers who have finished their court cases are being sent back to Mexico with documents that contain fraudulent future court dates, keeping some migrants south of the border indefinitely, records show.
Under the Migrant Protection Protocols policy, asylum seekers with cases in the United States have to wait in Mexico until those cases are resolved. The Mexican government agreed to accept only migrants with future court dates scheduled.
Normally, when migrants conclude their immigration court cases, they are either paroled into the United States or kept in federal custody depending on the outcome of the case.
However, records obtained by the San Diego Union-Tribune show that on at least 14 occasions, Customs and Border Protection agents in California and Texas gave migrants who had already concluded their court cases documents with fraudulent future court dates written on them and sent the migrants back to Mexico anyway.
Those documents, unofficially known as tear sheets, are given to every migrant in the Migrant Protection Protocols program who is sent back to Mexico. The document tells the migrants where and when to appear at the border so that they can be transported to immigration court. What is different about the tear sheets that migrants with closed cases receive is that the future court date is not legitimate, according to multiple immigration lawyers whose clients have received these documents.
This has happened both to migrants who have been granted asylum and those who had their cases terminated — meaning a judge closed the case without making a formal decision, usually on procedural grounds. Additionally, at least one migrant was physically assaulted after being sent back to Mexico this way, according to her lawyer.
Bashir Ghazialam, a San Diego immigration lawyer who represents six people who received these fake future court dates, said he was shocked by the developments.
“This is fraud,” he said. “I don’t call everything fraud. This is the first time I’ve used the words, ‘U.S. government’ and ‘fraud’ in the same sentence. No one should be OK with this.”
The Department of Homeland Security and Customs and Border Protection did not respond to multiple requests to comment about why they had engaged in the practice.
Ghazialam first noticed this in September, when three of his clients were sent back to Mexico after their cases were terminated on Sept. 17. After the judge made his decision, the family spent 10 days in Customs and Border Protection custody.
On Sept. 27, the family was given a document that read, in part, “At your last court appearance, an immigration judge ordered you to return to court for another hearing.” That piece of paper told them to return to court on Nov. 28.
However, the immigration judge ordered no further hearing. Ghazialam’s clients do not have a hearing scheduled on that or any other day.
To confirm Ghazialam’s claims, a reporter called a Department of Justice hotline that people with immigration court cases use to check their status and dates of future hearings. That hotline confirmed that the family’s case had been terminated on Sept. 17 and that “the system does not contain any information regarding a future hearing date on your case.”
“That date is completely made up and the Mexican authorities are not trained enough to know this is a fake court date,” Ghazialam said.
After being returned to Mexico, the mother was stabbed in the forearm while protecting her children from an attempted kidnapping. She still has stitches from the wound, Ghazialam said.
The mother presented herself at the border shortly after the stabbing. She told Customs and Border Protection agents that she was afraid to stay in Mexico. The agents gave her a fear of return interview and tried to send her back to Mexico.
But this time, Mexican immigration officials refused to let her and her children back into Mexico because they did not have a court date, Ghazialam said. She is currently with relatives in New York, waiting to figure out the future of her legal status in the United States while wearing an ankle monitor.
In most of these cases, immigration attorneys aren’t aware that their clients were sent back to Mexico until it’s too late.
In one case, a Cuban asylum seeker was returned to Mexico after an immigration judge in Brownsville, Texas, granted her asylum.
The woman’s lawyer, Jodi Goodwin, remembers hugging her client after the decision and arranging a place to meet after authorities released her later that day following processing.
Goodwin expected the process to take 45 minutes, so she went to a nearby Whataburger and ordered a chocolate milkshake. About 40 minutes later, she got a phone call from her client.
“She was hysterical and crying,” Goodwin said. “I’m like, ‘What happened?’ and she says, ‘I’m in Mexico.’ ”
Goodwin called U.S. and Mexican immigration authorities to try to find out what happened. She spent five hours at the border until 9 p.m. and then went home to draft a lawsuit. It wasn’t until she threatened to sue CBP that her client was paroled into the United States.
“It was total chaos for 24 hours to try to figure it out,” Goodwin said. “It shouldn’t be like that, especially when CBP is blatantly lying. They are creating documents that have false information.”
The American Immigration Lawyers Assn. said it was worried about the practice.
“The idea that even though these vulnerable individuals are able to obtain an asylum grant from an immigration judge and CBP is sending them back to harm’s way in Mexico is really disturbing, especially under the guise that there’s a future hearing date,” said Laura Lynch, senior policy counsel for the organization.
Mexico’s National Institute of Migration did not immediately respond to questions about this practice.
Although Ghazialam and Goodwin were able to eventually get their clients back into the United States, some people are still in Mexico.
That’s what happened to a Guatemalan woman and her two children after a judge terminated their case on Oct. 18. The same day the judge closed their case, a U.S. immigration official gave her a piece of paper with the false hearing date of Jan. 16.
“But this appointment does not exist,” said the woman’s New York City attorney, Rebecca Press. “If you check with the immigration court system, there is no January hearing date and the case has already been terminated.”
It’s unclear how widespread this practice is. Lawyers in San Diego; Laredo, Texas; and Brownsville confirmed they have seen it firsthand.
However, only about 1% of asylum seekers in the Migrant Protection Protocols program have lawyers. Therefore it’s difficult to track what happens to the overwhelming majority of the people in the program.
Lawyers said asylum seekers without legal representation who have been sent back in this manner probably have no way of advocating for themselves. It took Goodwin hours of calls to high-level officials in both U.S. and Mexican immigration agencies plus the threat of a lawsuit to get her client back into the United States.
“If you don’t have someone who’s willing to sit around and spend five hours on the phone and stay up all night drafting litigation to force their hand, you’re going to be stuck,” she said.
As news of these false hearing dates spread among the immigration attorney community, some lawyers are taking proactive steps to protect their clients from being returned to Mexico after their court cases are closed.
Siobhan Waldron, a Los Angeles lawyer, wrote a letter to Mexican immigration officials explaining that her client had no future hearing date and outlined a step-by-step process Mexican officials could take to verify that her client’s case had been closed by using the Department of Justice hotline.
The letter worked at first.
When CBP officers tried to return Waldron’s client to Mexico on Nov. 1 with a false January hearing date, her client showed the note to Mexican officials, who refused to take her in. However, the next day, CBP officers sent Waldron’s client back to Mexico with another false court date and this time did not allow her to show Mexican officials her lawyer’s letter that she kept in a special folder, Waldron said.
“They didn’t let her take it out,” Waldron said. “They said, ‘You can’t present anything from that folder.’ ”
The lawyer plans to file “any complaint you can imagine” to CBP, the Department of Homeland Security and other regulatory agencies because “these agents need to be held accountable.”
Her client is still in Mexico, too afraid to walk outside because she has already been kidnapped and assaulted, Waldron said.
As my friend Laura Lynch points out, the individuals affected by this judicially-enabled outrage are not just “asylum applicants” – they include those who have been GRANTED ASYLUM as well as those whose removal proceedings were terminated because a U.S. Immigration Judge found that DHS ILLEGALLY SUBJECTED THEM to the “Let ‘Em Die In Mexico Program.”
The 9th Circuit’s horrible and incompetent handling of Innovation Law Lab v. McAleenan will live in infamy as a monumental judicial abdication of duty that has actually harmed or killed innocent asylum seekers while inspiring DHS to new heights of illegal behavior and contempt for our entire legal system.
Why have a “Judicial Branch” that won’t stand up for individual legal rights in the face of Executive tyranny, overreach, and downright fraud? What are these robed folks doing to earn their lifetime paychecks? And, given the quality and philosophy of many of Trump”s judicial appointments, rammed through a corrupt GOP Senate by “Moscow Mitch,” these are questions the majority of Americans might be asking for decades to come!
A Miami immigration judge with less than two years of experience on the bench was fast-tracked for a permanent position on the nation’s highest immigration court. The move has raised concerns about politicized hiring at the Justice Department.
Deborah Goodwin was one of six judges handpicked by Justice Department officials to fill vacancies on the Board of Immigration Appeals (BIA), a 21-member appellate court that sets binding legal precedents for more than 400 immigration judges serving in the nation’s 57 immigration courts. These six judges, who have little in common other than their markedly high rates of asylum denial, were permanently added to the board in August without undergoing any probationary period, according to documents obtained through Freedom of Information Act requests by the investigative website Muckrock.
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Memos sent to the office of Attorney General William Barr in July reveal that the Executive Office for Immigration Review (EOIR), which oversees the nation’s immigration courts, adopted new hiring procedures in March to evaluate candidates. It was “EOIR practice” to appoint a board member temporarily and require that person to complete a two-year probationary period, but the agency now believes that a sitting immigration judge has “the same or similar skills” as an appellate judge and should therefore be immediately installed permanently. The memos, obtained by Muckrock and shared with CQ Roll Call, were written by EOIR Director James McHenry.
“This is clearly a political move. There’s no question about it,” says Jason Dzubow, a D.C.-based immigration lawyer who runs the blog the Asylumist. “And there’s no way someone looking at the appearance of this can consider the hirings good for fairness in the immigration court system.”
Goodwin has a strong background in immigration enforcement: She worked as an associate legal adviser and assistant chief counsel for Immigration and Customs Enforcement. The judge, who presides over the court in Miami-Dade’s Krome migrant detention center, began hearing cases in 2017. As of the end of last year, she had an asylum denial rate of 89 percent, according to Syracuse University’s Transactional Records Access Clearinghouse. That’s far above the national average of 57 percent during the same period and almost 10 percentage points higher than the average for the Miami immigration court as a whole.
Of the six judges, Goodwin — who was appointed by former Attorney General Loretta Lynch — has received relatively little attention due to her limited time on the bench. Other appointees, such as Atlanta’s William Cassidy and Charlotte’s Stuart Couch, have been far more controversial. Cassidy, who had an asylum denial rate of 95 percent between 2013 and 2018, has been the subject of various complaints from immigration attorneys over the years. Couch, who had a rejection rate of 92 percent, issued ten rulings in 2017 that were found “clearly erroneous” by the Board of Immigration of Appeals. All ten of those of rulings involved the rejection of asylum claims by women who had been victims of domestic violence.
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In a recent interview with Dzubow, former U.S. Chief Immigration Judge MaryBeth Keller said the recent BIA hirings were “stunning.”
“I think [immigration judges] are generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that,” Keller told Dzubow. “I find these recent hires to be very unusual.”
Immigration judges, and appellate judges in particular, can come from a wide range of legal and professional backgrounds, although scandals of politicized hiring have cropped up in the past. In 2008, a report by the Office of the Inspector General revealed the George W. Bush administration had engaged in illegal hiring practices for years by selecting immigration judges based on their political views. Perhaps unsurprisingly, immigration judges selected during that time were found to have disproportionately denied asylum claims.
Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals, responded to the new appellate court appointments on his blog, immigrationcourtside.com: “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qaualifications [sic] of candidates who were passed over.”
Manuel Madrid is a staff writer for Miami New Times. The child of Venezuelan immigrants, he grew up in Pompano Beach. He studied finance at Virginia Commonwealth University and worked as a writing fellow for the magazine The American Prospect in Washington, D.C., before moving back to South Florida.
OK, so I can’t spell or proofread. That’s why I’m a “gonzo journalist.” (I actually went back and corrected the spelling after seeing Manuel’s article. But, it definitely was in the original posting.)
Every time a Court of Appeals signs off on a “removal order” generated by these blatantly unconstitutional (not to mention unqualified) “courts” that violate Due Process every day in numerous ways, those Article III Judges are betraying their duties to uphold the Constitution.
Manuel’s article also sheds some light on the opaque hiring practices of the Obama Administration under AG Loretta Lynch. Not only did Lynch incompetently administer the mechanics of Immigration Judge hiring — approximately two years to fill an average IJ vacancy (ridiculous) & dozens of open positions negligently left “on the table” for Sessions — she consistently filled the courts with “go along to get along government insiders” to the exclusion of many better qualified candidates from the private bar who could have added to the dialogue much-needed scholarship (particularly in the asylum and Due Process areas) and a more practical understanding of the predicament of asylum seekers.
Of course, some Government attorneys make outstanding, fair, scholarly Immigration Judges. I recommended numerous well-qualified INS and DHS attorneys for such appointments over the years, along with many from private practice and academia. But, along the lines of what former Chief Judge Keller said, Government attorneys can’t essentially be the “sole source” of judicial appointments.
To a large extent, Sessions and Barr have “weaponized” and accelerated Lynch’s already one-sided exclusionary hiring practices. While Lynch apparently didn’t want to “rock the boat” with any possible “pushback” while she promoted some of the Obama Administration’s worst anti-asylum policies and practices, including family detention, “Aimless Docket Reshuffling,” and forcing toddlers to “litigate” in court, Sessions and Barr intend to “sink the boat” with all migrants on board!
Toxic as the GOP’s hiring practices and manipulation of the process have been under Bush and Trump, they at least understand the potential impact of who sits on the Immigration Courts and the BIA, and act accordingly. By contrast, the Democrats have been lackadaisical, at best, and inept at worst, in appointments to the Immigration Judiciary.
Under Obama, the Democrats. loved to complain that Mitch McConnell stood in the way of judicial appointments. But, given a chance to positively reshape an entire court system, perhaps the most important if least respected and appreciated courts in America, without any Congressional interference or roadblocks, they dropped the ball. And that explains lots of today’s atrocious dysfunction in the immigration justice system.
Assuming that we someday get much needed “regime change,” an independent U.S. Immigration Court must be the number one priority. The Dems could have gotten the job done in 2008. Their failure to do so has caused untold human suffering, including needless deaths, and a potentially fatal degradation of our entire justice system. Never again!
