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

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

From an article by Alyssa Aquino @ Law360:

. . . .

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

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

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

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

Judge Garland to EYORE: “And you thought I was going to help you get back on your feet! Fool! It “Miller Lite” time @ EOIR! Progressives and due process warriors need not apply!”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

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

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

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

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

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

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

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

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

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

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

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

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

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

Number of known AILA members: 0 (maybe 1)

Number of clinical professors: 0

Number of human rights experts: 0

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

Number of NGO attorneys: 0

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

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

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

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

Number with recently published immigration scholarship: 0

Number with experience administering major pro bono programs: 0

Number with recent community service awards: 0

Number involved with Round Table amicus briefing efforts: 0

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

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

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

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

Number of progressive Immigration Judges appointed under Biden: 0

Number of regressive Immigration Judges appointed under Biden: 17

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

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

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

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

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

Star Chamber Justice — “Judge Garland loves what we do here in the VTC! He wants us to expand! This kind of ‘judging’ gets the quickest results! And, you don’t need to know any immigration law!”

🇺🇸🗽🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-08-21

🇺🇸⚖️🗽TELLING IT LIKE IT IS! — Calling Out The White Nationalist Kakistocracy @ EOIR!

Woman Tortured — “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Kangaroos — BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice
https://www.flickr.com/photos/rasputin243/
Creative Commons License

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

‘White Nationalism’ In Immigration Courts Must Go: Ex-Judge
By Jennifer Doherty
Law360 (January 28, 2021, 9:48 PM EST) — A former immigration judge called on the Biden administration to reorient the mission of immigration courts on Thursday, saying that a “white nationalist program” had taken root under the Trump administration and needs to be eradicated.
Speaking on a panel about a new report showing that the vast majority of non-detained migrants appear at their immigration court hearings, retired Judge Paul Wickham Schmidt called out Trump administration officials over “big lies and bogus narratives” promoted by the U.S. Department of Homeland Security and the Executive Office of Immigration Review, including claims that detention was necessary to prevent migrants from disappearing.
Judge Schmidt, who used to be the chair of the Board of Immigration Appeals, pointed to former Attorney General Jeff Sessions’ intervention in immigration cases to relitigate cases such as whether women who suffer domestic abuse in regions with high rates of femicide qualify for asylum, as well as the former administration’s messaging to immigration judges that their role was an extension of DHS’ enforcement mechanism.
“It’s all been part, I think, of the Stephen Miller white nationalist program, that there is no such thing as a good immigrant; all the immigrants are here to take our jobs or to evade the system,” Judge Schmidt said, referring to one of former President Donald Trump’s senior advisers.
Meanwhile, Thursday’s report from the American Immigration Council, an advocacy nonprofit group, confirmed what many immigration judges have known for years, according to Judge Schmidt.
Relying on a sample of 2.8 million immigration court cases where migrants were either released or were never detained, the report found that 83% of respondents with pending or completed removal cases showed up for every hearing, a share that increased to 96% for immigrants represented by counsel.
“Represented asylum-seekers appearing before fair, knowledgeable judges show up for virtually all of their EOIR merits hearings,” Judge Schmidt said.
Based on those findings, the report recommended four policy reforms, including reducing immigration detention and ending the Migrant Protection Protocols, which have forced over 70,000 people to wait in Mexico for decisions in their asylum cases.
The report also called for additional training for immigration judges and the rollback of a law requiring judges to issue orders of removal for migrants who failed to appear, an occurrence the authors found was frequently due to faulty notices to appear.
Creating an Article I, also called a legislative court, would also give immigration judges more independence in their review of individual cases and relieve them from pressure to meet case quotas, according to the report.
UCLA School of Law professor Ingrid Eagly, co-author of the report, said that additional training would serve to reduce inconsistencies between immigration courts and ensure that judges held the
government accountable for its responsibility to notify migrants of their court dates.

. . . .

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

Those with access can read the rest of Jennifer’s article on Law360.

Jennifer Doherty
Reporter
Law 360
Photo: Twitter

I was talking to a lawyer/reporter this afternoon. Her comment was: “Could anybody have designed a worse system for deciding life or death cases?” She was told in “pro bono training” to observe how certain judges like the chairs arranged in the courtroom because it could affect the outcome of her client’s asylum case!

Another attorney I spoke with who had practiced personal injury law couldn’t believe that no immigration cases ever “settled.” Even those with clear merit bounce around the system for years and then go to full hearings, sometimes with inconsistent results!

How can a system operate like this? It can’t! That’s why doubling the number of questionably qualified “judges” has resulted in at least doubling, perhaps tripling, the “backlog.”

Under pressure from White Nationalists like Miller, Sessions, Hamilton, and Barr, EOIR has generated an artificially created “backlog” consisting largely of : 1] cases that could have easily been granted in a fair, functional, practical system; 2) cases that could be granted or placed in line at USCIS (another broken and dysfunctional agency); and 3) cases that never should have been filed in a rational system!

An incompetent BIA has failed to set forth the precedents for granting asylum and other relief that are necessary to restore the rule of law and common sense to a broken system! And they have totally failed to hold biased anti-asylum and nativist-enabling judges accountable! That’s because the BIA itself has become an organ of White Nationalist restrictionist bias bearing little, if any, resemblance to a “court” within the common understanding of the term. “Judicial independence,” impartiality, expertise, due process, and rationality have become “bad jokes” at EOIR!

And, for the past four years, the folks “running” this godawful system haven’t set foot in a courtroom in years (if ever) and don’t have a clue about asylum law or representing humans (rather than “agencies” or “nativists” as clients). It’s a friggin’ inexcusable disaster. FUBAR+++++++!

Judge Garland must end it!

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️👍🏼Due Process Forever!

PWS

🏴‍☠️☠️⚰️🤮⚔️🛡TWO RECENT LAW360 ARTICLES HIGHLIGHT ROUNDTABLE’S SUPPORT FOR AILA’S LITIGATION AGAINST DANGEROUS CONDITIONS IN NEWARK IMMIGRATION COURT! —”It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.” — But, sadly, not very surprising to those in the “Immigration Community” forced to deal with EOIR’s now chronic disregard and disrespect for human life, on several levels, on a daily basis!

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

https://www.law360.com/immigration/articles/1306711/ex-immigration-judges-say-nj-court-risking-public-health-

Ex-Immigration Judges Say NJ Court Risking Public Health

By Sarah Martinson

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.

In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.

The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.

“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”

In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.

The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.

The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.

The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.

“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.

In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.

A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.

AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”

“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.

Counsel for the federal government declined to comment Wednesday.

AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.

The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review et al., case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.

–Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Stephen Berg.

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

https://www.law360.com/articles/1307316/nj-immigration-attys-can-t-stop-in-person-hearings-for-now

NJ Immigration Attys Can’t Stop In-Person Hearings For Now

By Jeannie O’Sullivan

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.

During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.

The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.

“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”

The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.

“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.

Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.

“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”

The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.

The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.

The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.

The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.

The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.

The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review, case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.

–Additional reporting by Jennifer Doherty and Alyssa Aquino. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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

Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮

I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?

When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?

To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!

I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!

Due Process Forever!

PWS

09-05-20

EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, June 8, 2019. The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.

Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions.

Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.

Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ.

Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.

Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values.

“OUR GANG” LEADER HON. JEFFREY S. CHASE QUOTED BY NICOLE NAREA IN LAW 360 RE: L-A-B-R- MESS!

But Jeffrey Chase, a former immigration judge and senior legal adviser to the BIA, said that the attorney general’s ruling is more likely to hinder efficient case adjudications. He said that immigration judges are already facing pressure to meet case completion quotas imposed by the Executive Office of Immigration Review earlier this year, and they have been forced to double-book hearings, meaning that cases will, by necessity, have to be continued.

“Under this latest ruling, judges will now have to write lengthy, detailed decisions for each continuance, an unrealistic expectation where judges must also complete three or more full hearings a day,” he said. “Some judges report receiving 10 or more motions for continuance a day, and lack the time and resources to write lengthy decisions on each while also hearing a full docket of cases.”

. . . .

Chase said that the decision’s “emphasis on efficiency over justice is particularly callous” given that, for many asylum applicants in immigration court, deportation may be a “death sentence.” He also pointed out that the decision does not seem to apply to continuances requested by U.S. Immigration and Customs Enforcement.

“It is unfair to require noncitizens seeking immigration status to demonstrate good cause for a continuance, while allowing ICE continuances for avoidable reasons such as misplacing the file, failing to obtain a needed document or not having adjudicated a petition in time,” he said.

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

Those of you with access can read Nicole’s full article over at Law 360.

Of course as Judge Chase says L-A-B-R- will not “promote judicial efficiency.” Far from it!

Immigration Judges will have to spend more time writing decisions to justify granting, as well as denying, continuances. That means less time for merits cases. The BIA will see an increase in “interlocutory appeals” from both sides, but particularly from DHS. Again, this takes time away from work on the merits appeals, which is why the BIA quite properly discouraged such interlocutory appeals in the first place. And, denial of a continuance to a respondent, particularly when it involves finding an attorney, attorney preparation, or obtaining evidence or witnesses, is an appealable due process issue on petitions for review to the Article III courts. Consequently, expect plenty of remands from the Circuit Courts as Immigration Judges and BIA Appellate Immigration Judges are pushed to churn out more denials and final orders of removal under Sessions’s “tilted field” approach.

As Jeffrey also points out, DHS requests and gets many continuances for routine matters like failure to have files or missing evidence to support the charges. Moreover, in L-A-B-R- Sessions totally ignores one of the main culprits for today’s backlog: Aimless Docket Reshuffling” (“ADR”) by EOIR often to accommodate the enforcement aims of DHS or politicos at the DOJ.

“Just pedal faster gimmicks” and having unqualified politicos tell judges how to manage dockets and run their courtrooms are a prescription for failure. The only question is how big the train wreck caused by this hunk of Sessions’s malfeasance will be!

Thanks for speaking out, Jeffrey. And thanks for your coverage, Nicole.

PWS

08-21-18

LAW360: BIA REMOVES IMMIGRATION JUDGE FOR ABUSIVE CONDUCT DURING HEARING!

https://www.law360.com/articles/999284/judge-s-hostile-and-bullying-acts-prompt-new-hearing

Kevin Penton reports for Law360:

“Law360, New York (January 5, 2018, 9:27 PM EST) — The Board of Immigration Appeals has vacated an immigration judge’s denials of a Salvadoran native’s bids to secure asylum and to duck deportation, after finding that the judge used “hostile and bullying behavior” toward the individual’s attorney.

The BIA wants a different judge to review the case, essentially from scratch, after finding that the Immigration Judge Quynh V. Bain “screamed” at the lawyer for more than five minutes, mimicked her voice, called her “several disrespectful names,” said she was “unprofessional” and refused to allow a recess…”

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Those with complete Law360 access can read Penton’s full story at the link. Kudos to the BIA for “stepping up” to stop such abuses and protect due process!

Surprisingly, and sadly, Judge Quynh V. Bain is one of my former colleagues at the U.S. Immigration Court in Arlington, Virginia. The Arlington Immigration Court generally has had a well-deserved reputation for fairness, professionalism, respect, teamwork, and unfailing courtesy. In other words, it’s always been a court where lawyers on both sides enjoy practicing. Indeed, it often serves as a “training court” for student attorneys, interns, new Assistant Chief Counsel, and newly appointed U.S. Immigration Judges. So, I’d have to assume that this was an aberration in the context of Arlington.

Nevertheless, given the high stress levels that U.S. Immigration Judges are already working under, the plans of Attorney General Jeff “Gonzo Apocalypto” Sessions to “torque up” the pressure on Immigration Judges to turn our final orders of removal without much, if any regard, for due process, the counter-pressure from the U.S. Courts of Appeals for Immigration Courts to function like “real” courts, the many newly appointed inexperienced Immigration Judges, and the lack of meaningful training for Immigration Judges, I would expect such incidents to increase in the future. Just another reason why it’s past time for an independent Article I U.S. immigration Court!

Changing to the topic of Law360, one of my favorite “immigration beat” reporters, Allissa Wickham (a/k/a the fabulous “AWick”) tells me that she has left Law360 for a “new gig” with HBO, working on a show featuring Wyatt Cenac (formerly of the “Daily Show”). The show is scheduled to air this spring. Allissa says that she will continue to do original reporting, so hopefully at least some immigration topics will find their way into her “portfolio.” Good luck Allissa, and thanks for all of your great immigration reporting, clear writing, and many contributions while at Law360!

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PWS

01-06-18

Allissa Wickham @ Law 360 Reports That DACA Is Alive & Well — At Least For Now!

Over 120K DACA Applicants Approved So Far This Year

By Allissa Wickham

Law360, New York (June 9, 2017, 8:34 PM EDT) — More than 120,000 applications for Deferred Action for Childhood Arrivals were approved in the first three months of this year, according to government statistics released Thursday, with the development coming as the Trump administration continues to hold off on making changes to the program.

From January to March, 124,799 DACA cases were approved, according to data from U.S. Citizenship and Immigration Services, with 17,275 initial applications and 107,524 renewals.

The data isn’t broken down on a month-by-month basis, and a USCIS representative told Law360 that the…

To view the full article, register now.

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Alas, if you wish to read more from the fabulous “AWick,” you’ll need to be a subscriber to Law 360. But, you get the idea.

PWS

06-10-17

Law360: U.S. Solicitor General — Plum Or Lemon?

Andrew Strickler at Law 360 suggests that what was once Washington’s “best legal job” might now be a “career ender” rather than a “career enhancer.” Still, probably a far cry from being the Commissioner of the “Legacy Immigration and Naturalization Service,” sometimes described as “the worst Presidential appointment in Government.”

Those of you who subscribe to Law 360 (I don’t, so all I read was the “teaser”) can read the full article here:

https://www.law360.com/articles/891376?utm_source=rss&utm_medium=rss&utm_campaign=articles_search

PWS

02/16/17

Judge Edward F. Kelly Was Just Appointed To The “High Court Of Immigration” — Who Knew?

The answer is that “almost nobody knew” outside of the insular “tower” world of EOIR Headquarters in Falls Church, VA. It took some super sleuthing by ace Legal Reporter Allissa Wickham over at Law 360 to smoke this one out.

With a little help from her friends, the fabulous “AWick” came upon Judge Kelly’s name in the Roster of Board Members in The Board of Immigration Appeals (“BIA”) Online Practice Manual. (As the BIA Practice Manual was instituted during my tenure as BIA Chair, I’m gratified that someone out there is actually reading it.)

Armed with that tidbit of information, AWick was able to get confirmation of Judge Kelly’s appointment from EOIR spokesperson Kathryn Mattingly on Friday evening. Interestingly, Judge Kelly’s biography no longer appears in the online listing for the Office of Chief Immigration Judge, where he had served for a number of years as a Deputy Chief Immigration Judge. Nor has his name or biography appeared under the online listing for the BIA. In other words, Judge Kelly is somewhat “lost in EOIR space” — close to being a bureaucratic “non-person.”

For those who don’t know, the BIA is the highest administrative tribunal in the filed of immigration. With an authorized membership of 16 Appellate Immigration Judges (Judge Kelly became #15, leaving one vacancy), the BIA received more than 29,000 cases and completed more than 34,000 cases in FY 2015 and had nearly 17,000 pending at the end of that year. By comparison, for the same period, the U.S. Supreme Court received 6,475 cases and took only 81 for oral argument.

The Board also issues nationwide precedents that are binding on the U.S. Immigration Courts and the DHS. Although a part of the Executive, not the Judicial Branch, the BIA effectively occupies a position in our justice system just below that of a U.S. Court of Appeals.

Moreover, as I have pointed out in other blogs, because of the idiosyncrasies of the Supreme Court’s so called “Chevron doctrine,” the Courts of Appeals actually are required to “defer” to the BIA’s interpretation of ambiguous questions of law. Indeed, under the Supreme Court’s remarkable “Brand X doctrine” (“Chevron on steroids”) under some circumstances the BIA can reject the legal reasoning of a Court of Appeals and apply its own interpretation instead.

In other words, notwithstanding their rather cloistered existence, and attempt to remain “below the radar screen,” BIA Appellate Immigration Judges are some of the most powerful judges in the entire Federal Justice system. That makes the lack of publicity about Judge Kelly’s elevation to the appellate bench even more curious.

For those who don’t know him, Judge Kelly started moving “up the ladder” at EOIR when I appointed him to a newly created staff supervisory position at the BIA in the mid-1990s. He was selected because of his reputation for fairness, scholarship, strong writing, collegiality, and ability to teach and inspire others. In other staff positions at the BIA, Judge Kelly became a master of understanding, explaining, and recommending improvements to the case management system. I believe it was those skills and understanding of the mechanics of the Immigration Court System that made him rise to a Deputy Chief Judge position within the Office of Chief Immigration Judge in Falls Church.

Judge Kelly was at the BIA in the late 1990s when the EOIR Executive Group developed the “EOIR Vision” of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Although over the years, Department of Justice and EOIR management have essentially downplayed and moved away from any public expression or reinforcement of this noble vision, I’m confident that Judge Kelly remains committed to the due process mission we all embarked upon together several decades ago.

From his prior vantage point as a Deputy Chief Immigration Judge, Judge Kelly saw first-hand the docket and due process disaster caused by the DOJ’s politicized meddling in the daily case management practices of the U.S. Immigration Courts over the past several years. He also witnessed the general failure of the BIA to step up and stand up for the due process rights of individuals being hustled through the system with neither lawyers nor any realistic chance of effectively presenting their claims for potential life saving protection.

I hope that as the “new Appellate Immigration Judge on the block,” Judge Kelly will bring a forceful voice for due process and fairness to his colleagues’ deliberations. By doing so, perhaps he can persuade them to face and address some of the important due process and fairness issues in the Immigration Courts that they have been avoiding.

Judge Kelly’s professional bio (taken from his appointment as Deputy Chief Judge, in the absence of a formal announcement from DOJ/EOIR) is reprinted here:

“FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) today announced the appointment of a second deputy chief immigration judge (DCIJ). Effective March 10, 2013, Assistant Chief Immigration Judge (ACIJ) Edward F. Kelly will become a DCIJ. Judge Kelly will assume direct supervision of the program components in the Office of the Chief Immigration Judge (OCIJ), including the legal unit, the language service unit, the organizational results unit, the chief clerk, and the executive officer.

“Judge Kelly’s appointment as deputy chief immigration judge is in recognition of his tremendous contributions to OCIJ’s efficiencies and services,” said Chief Immigration Judge Brian M. O’Leary. “With his expanded role, I am confident OCIJ will continue to improve our operations and inspire our staff.”

Biographical information follows:

Attorney General Holder appointed Judge Kelly as an ACIJ in March 2011. He received a bachelor of arts degree in 1982 and a juris doctorate in 1987, both from the University of Notre Dame. From November 2009 to March 2011, Judge Kelly served as senior counsel and chief of staff for OCIJ. From 2007 to 2009, he was counsel for operations for OCIJ at EOIR. From 1998 to 2007, Judge Kelly was a senior legal advisor for the Board of Immigration Appeals (BIA), EOIR. From 1995 to 1998, he served as a supervisory attorney and team leader for the BIA. From 1989 to 1993 and again from 1994 to 1995, Judge Kelly was an attorney advisor for the BIA. From 1987 to 1989, he served as an assistant counsel, Subcommittee on Immigration, Refugees, and International Law, U.S. House of Representatives, Washington, D.C. From 1982 to 1984, he served in the U.S. Peace Corps in Gabon, Africa. Judge Kelly is a member of the Virginia State Bar.”

Perhaps, eventually, EOIR will announce Judge Kelly’s appointment. Who knows?

Additionally, those of you with full Law 360 access (which I don’t have) can read AWick’s full article at the Lexis link below.

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/02/03/board-of-immigration-appeals-gains-new-member.aspx?Redirected=true

PWS

02/04/17

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