𝐗𝐗𝐗𝐗𝐗 “SEX & THE COURTHOUSE” 🤯 — A Tragicomic 🎭 Series Starring Judge Merrick Garland & DAG Lisa Monaco As Clueless Leaders Of A Failed Court System Where The Focus Is On Something Other Than Delivery Of Justice!

Sarah Jessica Parker will NOT be appearing in the Garland/Monaco production of “Sex And The Courthouse!”
Photo by Shawn Miller/Library of Congress. Public Domain.

Law360 (February 5, 2024, 6:23 PM EST) — The U.S. Department of Justice will pay $1.2 million to resolve a suit from a former staff assistant who said a California immigration judge routinely subjected her to explicit, lewd comments and once told her he would “make her straight” if they had sex.

By Grace Elletson

This article is “paywalled.” Those with Law360 access can get all the details.

But, the final settlement agreement is public and should give you a picture of what’s happening inside Garland’s often-secretive and dysfunctional “courts.”

Escoto

The Plot

On January 22, 2021, two days after President Joe Biden’s inauguration, then SF Chron reporter Tal Kopan ran an extensive, well-documented expose of the widespread sexual harassment problems at EOIR, the home of the U.S. Immigration Courts at the USDOJ. The story was picked up by other publications. Also, it was highlighted in that day’s edition of “Courtside,” along with a strong suggestion for immediate action addressed to incoming AG Judge Merrick Garland and AAG Vanita Gupta (a former, now very former, “civil rights maven”), both of whom had been nominated but not yet confirmed. See https://immigrationcourtside.com/2021/01/22/🇺🇸⚖%EF%B8%8Fnote-to-judge-garland-and-vanita-gupta-misogyny🤮-is-running-rampant-in-the-eoir-courts-soon-to-be-your/.

Six months later, in apparent response to Tal’s article, Deputy AG Lisa Monaco pledged to root out sexual harassment at DOJ, formed a committee (a bureaucratic device often used for “task avoidance”), and directed it to report within six months. See https://immigrationcourtside.com/2021/07/31/⚖%EF%B8%8Ftal-sf-chron-gets-action-on-sexual-harassment-eoir-rest-of-doj-report-on-problems-in-immigration-courts-finally-spurs-positive-response-but-biden-continue/.

It now appears that Monaco’s efforts at reform have been just as lackadaisical as her implementation of Biden’s Executive order on regulations improving the treatment of gender-based claims at EOIR and elsewhere in Government, and her and her boss’s disturbingly inept approach to EOIR reform generally!

True, many of the actual incidents covered by the complaint in this case happened before Biden took office. See https://immigrationcourtside.com/2023/05/04/%F0%9F%A4%AF-former-employees-explosive-federal-court-allegations-not-everyone-in-eoir-management-focused-on-guaranteeing-fairness-due-process/. But, the plaintiff’s termination by EOIR and her filing of administrative complaints that appear to have been “brushed off” by DOJ took place in 2021 and 2022, after Garland and Monaco assumed office and well after the endemic problems with sexual harassment at EOIR were public knowledge.

Yet, even with clear notice of the festering problems and an opportunity to address them in a way that would “change culture,” it required the institution of a Federal lawsuit by the plaintiff to obtain action and an effective remedy, almost three years after her termination.

Alfred E. Neumann — After years of overt anti-asylum bias and misogyny from Sessions and Barr, long suffering respondents, practitioners, and many EOIR employees expected a “due process/good government renaissance” under former Federal Judge and Supreme Court nominee Merrick Garland. However, despite a few improvements, Garland has “floated above” the chaos and lack of quality control that daily vex and plague those trapped in his dysfunctional, hopelessly backlogged “courts.”
PHOTO: Wikipedia Commons

It’s difficult to quantify the actual costs of EOIR mismanagement by Garland and his political lieutenants. After all, how do you put a money value on wrongful deportations, denial of constitutional rights, being subjected to substandard anti-immigrant decision making, bad precedents, “Aimless Docket Reshuffling” (“ADR”) on steroids, poorly trained judges, years stuck in limbo without the relief to which you are entitled, the effect of statistics manipulated to downplay the number of legal refugees stuck in EOIR’s hellish 3 million+ backlog, “courts” intentionally located in obscure inaccessible locations within the “New American Gulag” (“NAG”) run by DHS, and the overall “customer unfriendly” and often intentionally coercive mess to which those who practice before EOIR and those whose fate is in EOIR’s hands are subjected every working day? You can’t!

Nor is the waste of finite USG resources on chronic structural inefficiencies, boneheaded schemes to expedite dockets as “deterrents,” and ill-advised “defenses of the indefensible” in Federal Courts easy to value. But, in this case, we can quantify the cost to taxpayers of Garland’s and Monaco’s poor leadership — $1.2 million!

I wonder how many qualified accredited representatives a real problem solver and due process innovator like Professor Michele Pistone at VIISTA Villanova could train with that kind of money?

The poor leadership of Garland on immigration matters and the lousy performance of EOIR continue to be drags on the Biden Administration and our justice system. It didn’t have to be this way!

No Longer in the Cast: Former Associate AG Vanita Gupta, who left DOJ after three years of “failing to connect the dots” among civil rights, the rule of law, and the glaring violations of human rights and due process taking place at EOIR and the rest of the immigration bureaucracy. Literally, these abuses took place right under her nose, but apparently below her radar screen!

During Gupta’s tenure, the already horrible treatment of asylum seekers and other migrants of color within EOIR and the immigration bureaucracy actually deteriorated in many ways. Gupta is a sad, yet classic, example of what routinely happens to progressives once they are invited into the “halls of power” within the Government: They get co-opted into defending the status quo and the dangerous fiction of “revolution by evolution.” See, e.g., Perry Bacon, Jr., https://www.washingtonpost.com/opinions/2024/02/06/equity-diversity-inclusion-progressivism-limits/.

Just ask neo-Nazi Stephen Miller how “revolution” really works! He spent every day of his tenure in the Trump Administration single-mindedly working to dehumanize and demonize immigrants, particularly those of color and women, and to strip them of their already overly-limited rights. He paid no attention whatsoever to criticism, naysaying, and resistance from within or without. He took every “defeat” in Federal Court as an invitation to do something even worse and more outrageous.

While Gupta, despite her lofty position and civil right creds, was unable to materially improve the situation of migrants, Miller undid decades of progress on due process, racial justice, gender justice, and good government. Much of the damage he inflicted remains imbedded in the system, at DOJ, DHS, and elsewhere, as do many of those who willingly and enthusiastically assisted him.

The contrast between Gupta’s and Miller’s accomplishments and government “legacies” is a stunning illustration of the difference between Democrats and Republicans when it comes to immigrants’ rights, human rights, and racial justice — the fundamentals of governing. Democrat “political strategists” are belatedly “wondering and wandering” what to do about an “enthusiasm gap” with their core progressive voters who put Biden and Harris in office. The answer is staring them right in the face: Results matter!

🇺🇸 Due Process Forever!

PWS

02-09-24

⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

Yilun Cheng
Immigration Reporter, Columbus Dispatch
PHOTO: Twitter

Woman Tortured — Attorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www.dispatch.com/story/news/2022/01/15/discipline-system-immigration-judges-lacks-transparency/9157927002/

In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.

The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.

Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.

But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.

Juan is not alone in his grievances. In May 2021, the Ohio chapter of the American Immigration Lawyers Association submitted a group complaint against Riley to the Executive Office for Immigration Review (EOIR), an agency within the Department of Justice that oversees immigration courts.

Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.

But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.

Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.

. . . .

Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.

“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”

. . . .

Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.

In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.

In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.

“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”

Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.

“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”

. . . .

Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.

“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”

There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.

“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”

. . . .

The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.

The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.

The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.

“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”

. . . .

Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.

ycheng@dispatch.com

@ChengYilun

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

Read Yulin’s full article at the link.

First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.

https://immigrationcourtside.com/2021/01/18/⚖%EF%B8%8F🗽🇺🇸slavin-benitez-kowalski-schmidt-speak-out-on-broken-courts-yilun-cheng-reports-for-borderless-magazine/

Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!

So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?

The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.

Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!

Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.

Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.

Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.” But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!

Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.

Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!

The TRAC “national average” for asylum denials by IJs during this period was 67.6%.

So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”

As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.

All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.

Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.

Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!

Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.

The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.

While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.

He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)

Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!

Indeed, a full year the SF Chron’s Tal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”

From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?

Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”

As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!

🇺🇸Due Process Forever!

PWS

01-15-22

UPDATE:

The news isn’t all bad from Cleveland. Dan Kowalski over at LexisNexis reports that Cleveland Judge Jennifer Riedthaler-Williams (also a “high asylum denier — 94%) terminated without prejudice a removal case based on a defective Notice to Appear. https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/cleveland-ij-terminates-proceedings-defective-nta

Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡

There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!

The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!

🤮⚖️ NO JUSTICE @ “JUSTICE,” AS “DENIAL CULTURE” CONTINUES @ EOIR: 8TH CIR. BONKS BIA FOR FAILING TO FOLLOW PRECEDENT: Their Own & Circuit — Issue: Continuance for U Visa Application — Gonzales Chechaluno v. Garland!

Dan Kowalski reports on LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca8-on-continuances-gonzales-chechaluno-v-garland#

Gonzales Chechaluno v. Garland

“In sum, we conclude that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ do so, and it failed to provide a rational explanation for its decision, including its treatment of this court’s binding precedent in Caballero-Martinez. … We grant the petition for review, vacate the BIA’s May 2020 order, and remand for proceedings consistent with this opinion.”

[Hats off to David L. Wilson and amici Immigrant Law Center of Minnesota, ASISTA Immigration Assistance Project and National Network To End Domestic Violence!]

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

Folks, all of this nonsense, delay, needless litigation, and remarkable legal/judicial incompetence was for the “purpose” of denying a well-deserved continuance to a U visa applicant — what should have been about a 5-minute positive adjudication, at max. No wonder the Federal Courts are clogged, the EOIR backlog grows, and the system has lost all respect and credibility!

I wish that Lucas Guttentag, Lisa Monaco, Vanita Gupta, and Merrick Garland would explain to all of us what is the purpose of an “expert tribunal” that lacks expertise, fundamental legal skills, judicial independence, moral courage, and common sense, as well as the backbone to have stood up to folks like Sessions and Barr (see, e.g., the Census Bureau career civil servants for stark contrast).

EOIR needs, among other things, changes at the top, real courageous progressive leadership, and a new, well-qualified, progressive, practical, expert BIA that puts due process and fair adjudication above all else. The practical experts are out there! Lucas knows exactly who should be leaders, role models, and appellate judges at the BIA! He knows that EOIR is the one critically important Federal Judiciary that can be transformed in the short run into a progressive, due-process-focused, “model judiciary!” Every day wasted in making the necessary changes in personnel and procedures is a life-changing, life-preserving opportunity wasted!

So, what’s the delay? Why is this nonsense, injustice, and waste of resources continuing nearly seven months into the Biden Administration? What’s with the continuing, due-process-denying, corner-cutting, sophomoric “denial quotas” for EOIR “judges” that produce wasteful, unjust “garbage adjudications” like this litigation exemplifies?

Lucas Guttentag
Senior Counselor to the Deputy Attorney General

It shouldn’t be this hard to get long, long overdue, well-documented, common sense, readily achievable changes at EOIR! It shouldn’t be this hard for asylum seekers and other migrants, as well as their long-suffering representatives, to get the due process and fair and impartial adjudication that is their absolute right under the Due Process Clause of the Fifth Amendment to our Constitution!

🇺🇸Due Process Forever!

PWS

08-14-21

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse? — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

Current Affairs | Permalink

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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

You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control.

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21

⚖️TAL @ SF CHRON GETS ACTION ON SEXUAL HARASSMENT @ EOIR & REST OF DOJ! — Report on Problems In Immigration Courts Finally Spurs Positive Response! — But Biden Continues To Flail Around Unnecessarily On Restoring Asylum & The Rule Of Law At Our Borders! — Where Is The Enlightened Progressive Leadership We Need?

https://www.sfchronicle.com/politics/article/Justice-Department-to-overhaul-its-sexual-16352255.php

WASHINGTON — The Department of Justice will examine its sexual harassment policies for potential reform, a move that comes after The Chronicle’s reporting on inappropriate behavior in the immigration courts, according to an announcement obtained by the newspaper.

The announcement went out to all department staff Thursday in an email seen by The Chronicle. In it, Deputy Attorney General Lisa Monaco wrote it was “critical to our duty as principled defenders of the law to combat sexual harassment and misconduct in our own workplace and hold offenders accountable for their actions.”

Monaco said she is forming a committee to review all sexual harassment policies of the many sub-agencies of the Justice Department and assess where they may need to be changed, as well as evaluate current training and education. Two senior officials from her office will chair the effort and include members from across the department, and she said she wanted results of the review in six months.

. . . .

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

Thanks, and congrats, Tal! Those with access can read the rest of Tal’s report at the link.

How very timely! I just got done posting an article about the need for better Immigration Judges. https://immigrationcourtside.com/2021/07/30/%e2%9a%96%ef%b8%8f%f0%9f%a7%91%f0%9f%8f%bd%e2%80%8d%e2%9a%96%ef%b8%8f-why-better-immigration-judges-matter-new-study-shows-that-who-your-judge-is-where-he-or-she-is-located-what-administ/

Not surprisingly, according to the research, the fairest Immigration Judges for asylum applicants and other migrants “profile” as female, with immigration experience, in the 9th Circuit, in a Dem Administration. Not exactly the Sessions, Barr, Garland (to date) judicial profile. That could have something to do with these festering problems at EOIR that haven’t been dealt with despite numerous warning signs and “alerts.”

Also, the Garland DOJ would do well to investigate and correct the effects of the virulent misogyny directed at female refugees of color by Sessions, Barr, and their toadies and furthered by EOIR policies, procedures, and precedents over the past four years. Endemic problems don’t happen by chance!

According to the Ryo-Peacock study I posted, the “difference” that better Immigration Judges could make is over 200,000 lives potentially saved or altered for the better. That’s not exactly “chump change,” particularly when the interests of family members, employers, communities, our larger justice system, and our overall society are considered.

It also calls into question the apparent lack of seriousness with which “Team Garland” has taken Immigration Judge appointments to date. Throwing dozens of “not the best qualified available” IJs — without any concerted recruitment or diversification efforts — into an already broken, biased, and reeling system that deals with human lives in a cavalier manner is NOT GOOD POLICY! Particularly when the chronic problems of bad judging at EOIR had been clearly and articulately identified and many viable action plans and reform programs had been set forth by private sector experts even before the 2020 election.

EOIR needs new progressive leadership, a new progressive expert BIA that will truly be the “Supreme Court” of immigration and human rights, and better qualified and more diverse Immigration Judges who finally will implement the noble and correct vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all!” That would include treating all individuals coming before the courts, staff, and colleagues with dignity, respect, and fairness.

Sadly, the Biden Administration’s immigration policies, whatever they are on any particular day and place, seem to be mired in confusion, questionable competence, and a barrage of largely meaningless and confusing bureaucratic doublespeak. Meanwhile, in reality, it appears that Central Americans, Haitians, and others are being returned to danger zones without any process in place to insure fair treatment. Certainly, “Title 42” is the equivalent of no process whatsoever. While “expedited removal” might have the potential to be used fairly, there is little reason to believe that it is now being fairly and professionally administered by anyone committed to fundamental fairness over expedient enforcement.

Yes, Garland has sued racist moron Gov. Greg Abbott on his illegal Trumpist grandstanding (like Texas doesn’t have real problems to solve?). Stunts like Abbott’s were entirely predictable. However, if the Biden Administration had “hit the ground running” on asylum, the issue might well have been put to bed by now, and Abbott might have to focus instead on his normal job of mis-governing Texas, rather than focusing attention elsewhere.

The Administration could and should have had a robust refugee system up and running in the Northern Triangle that would reduce border pressure, a functioning asylum system that would encourage asylum applicants to apply at ports of entry rather than seeking irregular entry, a professional screening program in place at DHS, and a relatively “backlog free” Immigration Court, led by a progressive BIA, providing positive guidance on cases that could be granted. They would also have resettlement agreements and programs in place with NGOs and legal service groups to appropriately represent and resettle those granted asylum and those in the process to the locations where they could best reside.

Fair, expert, courageous leadership, leadership with a humane, positive, practical vision of immigration and an unswerving commitment to fairly granting asylum, is critical to success on immigration, human rights, and racial justice issues. So far, nobody in the Biden Administration appears to fit the bill! That’s probably why the Administration’s confused and ever-vacillating policies are being blasted by both progressives and reactionaries — the worst of all political worlds, as I have observed before!

There are experts out here in the private sector with the vision and leadership ability to solve these problems while putting White Nationalist restrictionists like Abbott in their place. Even though it’s late, the Biden Administration still needs to get a better team in place and let them solve the problems with knowledge, competence, and compassion, not more “knee-jerk reactions” and continuations of the cruel, inhumane, counterproductive, and often illegal policies and practices of the Trump regime.

🇺🇸Due Process Forever!

PWS

07-31-21

🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! — WHY?🤯

Gender Violence in Central America — Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!”
PHOTO: UNHCR website

https://www.dallasnews.com/opinion/commentary/2021/06/03/abuse-of-women-and-children-at-root-of-immigration-crisis/

Abused women at border — Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)

By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.

But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.

Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.

Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.

Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.

They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.

Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.

Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.

COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.

Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.

According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.

Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.

Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.

Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.

How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.

Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.

Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.

Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.

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

“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.

What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”

With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system!

Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.

For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?

Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.

Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences.

Judge Merrick Garland — “ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland
Official White House Photo
Public Realm

What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!”

James “Jim” Crow
Symbol of American Racism, still right at home at Garland’s EOIR!

And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?

Vice President Kamala Harris — Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here!
Vice President of the United States
(Official Senate Photo)

I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!

Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!

There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders!

By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”

PWS

06-05-21

☠️⚰️🤮— Jeff “Gonzo Apocalypto” Sessions Unethically Lied, Misrepresented, & Distorted To Declare “Open Season” On Brown-Skinned Refugee Women From El Salvador In His Matter of A-B- Atrocity — More Evidence Surfaces of His Treachery & Corruption — “‘The serial killer of women in Chalchuapa is not an isolated incident,’ said the feminist and social activist Morena Herrera. ‘It is an incident rooted in two factors: society’s permissiveness towards violence against women and institutional complicity. El Salvador’s institutions care very little about the lives of women – and I’m not just talking about the police,’ Herrera added.” — But Garland, Incredibly, Continues Session’s Legally Wrong, Factually Distorted, Morally Corrupt Policies!

Sessions in a cage — Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com. — Why won’t Garland repudiate “Gonzo’s” racist, misogynist, anti-due-process policies @ EOIR?
Republished under license

https://www.theguardian.com/world/2021/may/25/el-salvador-house-of-horror-women-murders?CMP=Share_iOSApp_Other

El Salvador’s house of horror becomes grisly emblem of war on women

Authorities have sought to portray the ex-policeman at whose home up to 40 bodies, mostly female, may be buried, as a freakish psychopath, despite the arrest of nine other suspects

Bryan Avelar in Chalchuapa and Tom Phillips

Published:

05:00 Tuesday, 25 May 2021

Day after day they flock to the emerald green house on Estévez Street, seeking news of loved ones who have vanished without a trace.

“They say there are lots in there, maybe 40,” said Jessenia Elizabeth Francia, a 38-year-old housewife who had travelled 20 miles to reach the heavily guarded building under a punishing midday sun.

Francia had come to Chalchuapa, a small town in western El Salvador, in search of her son, Luis Fernando, who disappeared seven years ago at the age of 16. “I just want to find at least his bones so I can bury them and find peace,” she said, clutching a cellphone showing a photograph of her missing child and the words: “I have faith.”

Others sought daughters or wives, Central American women feared to have fallen prey to the house’s proprietor, the former police officer and alleged serial killer Hugo Ernesto Osorio Chávez, who is feared to have buried his victims inside.

El Salvador: dozens of bodies found at ex-cop’s house investigated as femicides

“She was 24,” said Candelaria Carranza Castro, a silver-haired mother whose daughter went missing in July 2015 and who was among those to visit the house on Monday. “Whatever has happened I want to find her.”

The mass grave at No 11 Estévez Street was discovered on the night of 7 May after neighbours called police having heard the cries of a young woman. By the time police arrived more than an hour later she and her mother were dead – reportedly bludgeoned to death with an iron tube by Osorio, who confessed to the crimes. While taking the 51-year-old into custody, police stumbled across the half-buried bodies of two men in the house’s patio and, when they started digging, found more corpses below in a series of pits.

Authorities have yet to announce the precise number of bodies buried inside but the excavators still probing its foundations believe there could be as many as 40, and no fewer than 15.

. . . .

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

Read the rest of the article at the link.

What, exactly, is Garland doing about EOIR to justify his continuance in office? What about supposed social justice, gender justice “activists” Lisa Monaco, Vanita Gupta, and Kristen Clarke? The continuing human rights, gender rights farce at DOJ and EOIR should outrage all progressives and be a continuing stain on all the reputations of feckless Biden Administration officials at the failed and ever more failing DOJ !

🇺🇸Due Process Forever!

PWS

05-28-21

⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:

https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/doc/18-1083_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/hilite/

https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/doc/19-1370_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/hilite/

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

These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”

Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.

Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮

Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.

It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:

Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR – NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.

So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!

Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!

Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color

🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-24-21

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

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

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

May 19, 2021

The Honorable Merrick B. Garland Attorney General of the United States U.S. Department of Justice

950 Pennsylvania Avenue, NW Washington, DC 20530-0001

The Honorable Lisa O. Monaco

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

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

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

To Attorney General Garland and Deputy Attorney General Monaco:

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

DOJ and EOIR must overhaul the agency’s culture

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

EOIR Headquarters

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

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

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

Appellate Judges, BIA Members, and Immigration Judges

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

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

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

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

New EOIR Hires

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

2

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

Sincerely,

Advancing Justice – Asian Law Caucus

Alianza Nacional de Campesinas

American Constitution Society

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

Arab American Association of New York

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

CAIR-SV/CC

Capital Area Immigrants’ Rights Coalition

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

Catholic Legal Services, Archdiocese of Miami

Catholic Migration Services

Center for Gender & Refugee Studies

Chhaya CDC

Cleveland Jobs with Justice

Farmworker Association of Florida

Free the People Roc

Government Accountability Project

Government Information Watch

Human Rights First

Human Rights Initiative of North Texas

Immigrant ARC

Immigrant Legal Advocacy Project

Immigrant Legal Defense

Immigrant Legal Resource Center (ILRC)

Immigration Center for Women and Children

Immigration Hub

Inland Coalition for Immigrant Justice

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

Jewish Activists for Immigration Justice of Western MA

La Resistencia

League of Women Voters of U.S.

Legal Aid Justice Center

Louisiana Advocates for Immigrants in Detention

Lutheran Social Services of New York

Make the Road New York

Maryland Legislative Coalition

Memphis United Methodist Immigrant Relief

National Equality Action Team (NEAT)

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National Immigrant Justice Center

National Immigration Law Center

National Immigration Project (NIP-NLG)

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

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

Public Counsel

RAICES

Refugees International

Revolving Door Project

Rocky Mountain Immigrant Advocacy Network Safe Horizon

Sikh American Legal Defense and Education Fund (SALDEF)

South Asian Americans Leading Together (SAALT)

Takoma Park Mobilization, Equal Justice Committee

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

UndocuBlack Network

Unitarian Universalist Service Committee UnLocal

Women Watch Afrika

Young Center for Immigrant Children’s Rights

CC:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xix Id.

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

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

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

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

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

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

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

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

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

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-19-21

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

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

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

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

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, May 18, 2021

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

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

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

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

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

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

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

Component(s):

Office of the Attorney General

Press Release Number:

21-456

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

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

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

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

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

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

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

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

🇺🇸🗽⚖️Due Process Forever!

PWS

05-19-21

🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘

Judge Garland’s vision of “justice” for immigrants @ Justice:

Gone from the West Wing, but he and his EOIR “plants” remain an inspiration for “Dred Scottification” of the other, unconstitutional “judging,” worst practices, and demeaning treatment of human rights experts and due process advocates by the DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

Houston we still have a (huge) problem! Luckily we also have some great immigration advocates and members of the due process army.

. . . .

Houston EOIR is still closed for non-detained. They have just built a third immigration court here, “Greenspoint”, with over 30 brand new judges, just collecting dust (although that’s probably a good thing as it would only serve as a deportation mill). If you can believe the absurdity, you have to file a motion for change of venue + a motion to consolidate, to join family members whose cases have been placed in different courts all here in Houston. 🤦‍♂️🤦‍♂️

I believe Houston now has the 2nd largest backlog after New York City now, in large part due to the mismanagement by EOIR HQ.

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

From coast to coast, from the Rio Grande to the Great Lakes, Courtside followers and NDPA warriors are making it clear: Garland’s failure to take due process and racial justice in Immigration Court seriously and his disregard and disrespect for immigration/human rights experts is furthering havoc in the American justice system!

Is it “malicious incompetence” or just plain old incompetence and disregard for the due process rights of “the other” by Garland? Does it make any difference?

What will make a difference is flooding the Article IIIs with litigation challenging this ongoing constitutional nonsense and squandering of taxpayer funds! Overwhelm EOIR with applications for judicial positions and “bore out” the rotten foundations of this system from the inside with the tools of due process, fundamental fairness, and best practices! Also, inundate your Congressional representatives with demands that this blot on American justice be removed from the DOJ forthwith! Write those op-eds and keep informing your local media about the unmitigated, unnecessary, unconscionable, unconstitutional continuing disaster at Garland’s EOIR and how it destroys human lives on a daily basis! Shine the beacon of due process and justice on the dark, secretive, unconstitutional “Star Chambers” Garland operates in the guise of Immigration “Courts.”

NDPA legions, don’t be content to “wander in the wilderness” while clueless politicos and bureaucrats @ Garland’s DOJ destroy your sanity and the lives of the humans you represent! Stand up to institutionalized racism, continuing incompetence, disgraceful misogyny, intransigence, and ongoing “Dred Scottification” of communities of color by the Garland DOJ! End the DOJ’s anti-immigrant culture and disrespect for the defenders of due process and American democracy that goes on Administration after Administration as if your clients’ lives and your professional expertise were “chopped liver!” Enough is enough! Fight back against “Miller Lite Justice!”

My fellow warriors for justice, YOU are again being ignored, shut out, marginalized, abused, looked down upon, dehumanized, insulted, and scorned by yet another Dem Administration that YOU helped put in office! Time to stand up and be heard for YOUR rights, the rights of the people YOU represent, and the future of our Federal Judiciary and our American Democracy!

NO MORE “MILLER LITE @ JUSTICE!” ASK YOURSELVES: WHO WON THE LAST ELECTION? WHAT DOES IT MEAN TO “WIN” IF GARLAND CONTINUES TO RUN THE IMMIGRATION COURTS LIKE STEPHEN MILLER IS STILL IN CHARGE?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-06-21

🤮👎🏻SHOCKING BETRAYAL@ “JUSTICE” — GARLAND DISSES PROGRESSIVE EXPERTS WITH SECRET APPOINTMENTS OF 17 UNQUALIFIED IMMIGRATION JUDGES! — New AG’s Open Contempt For Racial Justice, Due Process, Human Rights Enrages Advocacy Community Who Believed & Supported Biden-Harris Campaign Pitch! — THE REINCARNATION OF “DEEP THROAT” @ EOIR “BLOWS WHISTLE” ON NEW AG’S ATROCIOUS FAILURE TO TAKE SERIOUSLY MOCKING OF DUE PROCESS, INSTITUTIONALIZED RACISM, MISOGYNY, LACK OF SCHOLARSHIP, AVERSION TO PRACTICAL PROBLEM SOLVING IN AMERICA’S DEADLY, DYSFUNCTIONAL STAR CHAMBERS!⚰️☠️🏴‍☠️

Deep Throat — Reincarnated @ EOIR? — Creative Commons License

Courtside Exclusive

By Paul Wickham Schmidt

May 4, 2021

Recently, some of America’s top legal minds were “wordsmithing” their “practical scholarly” advice on what actions Judge Garland should take to begin straightening out his EOIR mess. Common sense steps to slash the largely self-created Immigration Court backlog of an astounding 1.3 million cases actually could and should have been taken within hours of Garland’s swearing in as Attorney General. But, unknown to these experts, the battle they steadfastly had been fighting for the past four years in behalf of due process, common sense, and humanity in a broken system already was lost.

Basically, Garland and his team had secretly delivered the “big middle finger” to progressives earnestly seeking to assist and guide them in the right direction on long overdue reforms at Garland’s incredibly backlogged, totally dysfunctional, anti-due-process, Immigration “Courts” that don’t fit any known American definition of “court.” For while the wheels of scholarly, problem-solving brainpower were grinding away, Garland had cavalierly and clandestinely handed out 17 of the most important (and certainly most readily available to progressive judicial candidates) Federal Judicial positions to unqualified insiders and prosecutors basically “in the Stephen Miller White Nationalist pipeline.” Adding insult to injury, Garland and his lieutenants covered up their disgraceful actions. But, thanks to a reincarnated “Deep Throat” @ EOIR (see, Watergate for newer generations), we now know the truth.

According to “Deep Throat 2021,” (“DT-21”) it’s worse than I previously thought about Immigration Judge appointments. (And, I thought it was bad.) Garland actually secretly appointed 17 new IJs in April, but EOIR hasn’t released the names publicly because they (rightly) fear “the blowback” from Dems and progressives.

So, who is Team Garland” trying to please? “Gauleiter” Stephen Miller? “Billy the Bigot” Barr? Gene Hamilton? Donald Trump? Jeff “Gonzo Apocalypto” Sessions? Chad “Wolfman” Wolf? Ken “Cooch Cooch” Cuccinelli? “Teddy the Traitor” Cruz? Tom “Blacks & Hispanics Should be Pickin’” Cotton?

The 17 include some for the VTC black box “court” in Richmond. The only one that went public was a story a judge himself placed. That’s apparently the one that Dan Kowalski and I picked up. According to sources, none of Garland’s new judges are good for due process or for progressive, expert, independent judging.

Also, there’s a rumor that the open BIA position is going to go to an “EOIR insider,” not someone from the outside who could help restore due process and fundamental fairness.

Let’s see, so far the Biden Administration has had exactly zero progressive Federal Judges confirmed by the Senate. Meanwhile, over at DOJ, Garland has handed out these 17 powerful judgeships with life or death authority serving on the front lines of racial justice in America to non-progressives apparently recommended and tapped by his restrictionist predecessor.

Make sense? Only if you’ve watched past Dem Administrations’ inept handling of the Immigration Courts.

In positive news, there’s “internal chatter” that EOIR Deputy Director Carl C. Risch, a political hack “burrower” from the Trump Administration, is leaving EOIR.

But, “DT-21” is still gravely concerned that “Millerite” BIA Chair David Wetmore (Maury Roberts must be turning over in his grave) has yet to be removed with his “probationary period” set to expire at the end of this month. What, exactly, have been Wetmore’s contributions to human rights scholarship, “applied due process,” fundamental fairness, racial justice, and fair treatment of female asylum seekers that justify his continued tenure as essentially the “Chief Justice of Immigration?”

Garland’s malfeasance at EOIR is not just disappointing, but totally outrageous! On Tuesday, he disingenuously asked the House for more money to promote civil rights while running Star Chambers of institutionalized racism that are undermining the American justice system at the critical “retail level.”

Those advocates who almost single handedly kept the American justice system afloat by successfully challenging many of the unconstitutional racist actions of the Trump immigration kakistocracy once again find themselves “on the outside looking in.” Meanwhile, Judge Garland, who was hiding out above the fray @ the DC Circuit, treats them as “chopped liver” while continuing White Nationalist, anti-due-process policies and precedents initiated by Trump and his cronies.

How out of touch is Garland’s proposal to the House yesterday to address the Immigration Court backlog by casting 100 new Immigration Judges into this mess? (Presumably, these positions will be handed out “like candy” to more non-expert, non-diverse, non-due-process oriented insiders and former government prosecutors.) Well, even with many more Immigration Judges on the bench (more than twice as many as at the end of the Obama Administration), it’s been about two decades since EOIR has decided more cases than it has docketed! That’s how “Aimless Docket Reshuffling” by DOJ politicos and EOIR bureaucrats builds uncontrollable backlogs!

Assume the highly unlikely, that under Garland, without any more quotas, corner cutting, or other anti-due-process gimmicks, the existing nearly 600 judges could keep “even” with new filings. Then, once selected, trained, and on duty (a process that took the Obama Administration an astounding average of two years), “Garland’s 100 new judges” could devote themselves to “backlog reduction.” At the DOJ’s quota of 700 cases per judge, the new judges could decide 70,000 cases per year. At that rate, it would take them approximately two decades (or five 4-year Administrations) to “wipe out” the backlog.

Sound like a plan? Only if you don’t understand the fundamental, endemic problems plaguing EOIR and have no “real life experience” representing individuals whose hopes, lives, and futures are being ground to dust by EOIR malfeasance on a daily basis!

Folks, this has to stop! Keep pressing those constitutional arguments that eventually will bring Garland’s corrupt, dysfunctional system to a screeching halt. And keep pushing for legislation to take this ungodly mess out of the DOJ. Also, keep reminding President Biden who helped get out the vote and get him his job. And, where is our African/Asian American/daughter of immigrants Vice President while this outrage at “Justice” is playing out?

How do supposedly progressive women legal luminaries like Lisa Monaco and Vanita Gupta justify their role in Garland’s misogynist, due process farce @ EOIR?

As for “DT-21,” he/she/them remains as enigmatic, unverifiable, unabashed, and unafraid as ever! This is a 21st Century “patriot” tired of the abuse of due process, racism, incompetence, and misogyny that EOIR has fostered over Administrations of both parties. EOIR under Garland is a progressive’s continuing nightmare!

Does “DT-21” lurk in the shadows of a parking garage, beyond the view of security cameras, as did the famous 1970’s namesake? Or, at the outskirts of an interstate rest area? Perhaps in a dark unwatched corner of an overcrowded Zoom chat room?

And, while you’re at it, say a prayer for Linda Lovelace (1949-2002), the original “Deep Throat” (1972), who later said she was an abused spouse coerced into a career as an adult actress that she eventually rejected. Somehow, there is a tie-in between Lovelace’s exploitation in the 1970s and the systemic mistreatment of asylum seeking domestic violence victims that went into high gear during the Trump regime and continues unabated under Garland! Interestingly, before her untimely death in 2002, Lovelace became an anti-porn activist who testified before the Attorney General’s Commission on Pornography (a/k/a “The Meese Commission”) in 1986.

Stay tuned for more “truth from the Tower.” You certainly won’t get it from “Team Garland.”

Due Process Forever!

PWS

05-04-21

🇺🇸🗽👍🏼PRESSURE FROM HUMANITARIANS WORKS: Biden Finally Keeps Promise To Raise Refugee Cap To 62,500 After Strong Pushback From Earlier Bobble!

https://www.latimes.com/world-nation/story/2021-05-03/biden-lifts-trump-refugee-cap-after-delay-backlash

By MATTHEW LEE AND ZEKE MILLER

ASSOCIATED PRESS

MAY 3, 2021 1:48 PM PT

WASHINGTON —

President Biden is formally lifting the nation’s refugee cap to 62,500 this year, weeks after facing bipartisan blowback for his delay in removing former President Trump’s limit of 15,000.

Biden last month moved to expand the eligibility criteria for resettlements, removing one roadblock to refugees entering the U.S. put in place by Trump, but he had initially stopped short of lifting the annual cap, with aides saying they did not believe it was necessary. But Biden faced sharp pushback for not at least taking the symbolic step of authorizing more refugees to enter the U.S. this year and swiftly reversed course.

Biden, in a statement, said the new limit “erases the historically low number set by the previous administration,” adding that Trump’s cap “did not reflect America’s values as a nation that welcomes and supports refugees.”

“It is important to take this action today to remove any lingering doubt in the minds of refugees around the world who have suffered so much, and who are anxiously waiting for their new lives to begin,” Biden added.

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

So, excruciating, aggressive, very public pressure from progressive humanitarians works with a President who pays attention to facts and actually wants to govern in the public interest.

Maybe the same advocacy groups, interest groups, and legislators need to radically step up the pressure for progressive changes (or at least the end of active oppression) at the Immigration Courts, which are a main impediment to a fair asylum system. Folks, asylum seekers are “refugees” — first and foremost! The failure to recognize that and treat them legally and humanely is beyond disgraceful!

The unmitigated Immigration Court disaster also undermines racial justice in America every single day that “Team Garland” continues with Stephen Miller’s White Nationalist nativist policies and Miller’s restrictionist “judges” in the Immigration Courts!

Judge Garland has been “living in the Ivory Tower” for a long time, obviously too long! But Lisa Monaco and Vanita Gupta actually have had to make a living in the “real world” for the past four years. Somebody in the advocacy community who knows these two needs to pick up the phone and read them the “riot act” on the racist, misogynistic, nativist, anti-due-process, regressive, mismanaged human rights disaster unfolding on their watch every day at EOIR — America’s worst excuse for a “court system!”

Due Process Forever!

PWS

05-03-21

EOIR WRONG AGAIN: BIA’s Attempt To Limit Its Own Jurisdiction To Grant Waivers Thwarted By 4th Cir. — Jiminez-Rodriguez v. Garland

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-waivers-jimenez-rodriguez-v-garland#

Dan Kowalski reports for LexisNexis Immigration Community:

CA4 on Waivers: Jimenez-Rodriguez v. Garland

Jimenez-Rodriguez v. Garland

“Reading the broad language of §§ 1003.10(b) and 1240.1(a)(1)(iv), we conclude that these regulations give the IJ the Attorney General’s discretionary authority to grant a § 1182(d)(3)(A)(ii) waiver. … [W]e grant the petition, vacate the BIA’s final removal order, and remand for further proceedings consistent with this opinion.”

[Hats off to Brad Banias!]

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

Seldom has a supposed quasi-judicial tribunal worked as hard as the current BIA to find limits on its ability to solve legal and humanitarian problems. That leaves the work to the Circuits, as in this case.

So, why have EOIR at all? The system clearly is unconstitutional because it lacks fair and impartial adjudicators and even minimally competent administration of due process. If Garland, Monaco, and Gupta have no interest in fixing these glaring problems, then why not just transfer EOIR’s functions to the U.S. District Courts and U.S. Magistrate Judges under the supervision of the Courts of Appeals?

Dems talk big about the need for a more progressive Federal Judiciary to achieve racial justice. But, given the chance actually to create one, they sit on their hands!

Not so the GOP! Restrictionists, nativists, reactionaries and White Nationalists recognize the repressive power of a captive and co-opted Immigration Judiciary and act accordingly. “Act” — that’s the operative word that doesn’t appear to be in the Dem’s vocabulary when it comes to building a better Federal Judiciary for a better America.

Progressives might initially have cheered the appointment of these three to top leadership posts @ the DOJ. But, to date, they have shown no interest in rescinding Stephen Miller’s White Nationalist immigration policies or replacing Miller’s nativist judges with progressive expert judges @ EOIR.

Vanita Gupta
Associate Attorney General
Photo: Brookings Institution, Paul Morigi, Creative Commons License.

Due Process Forever!

PWS

05-02-21

☠️👎🏽⚰️🤮 PERVERSION OF “JUSTICE @ JUSTICE” — Immigration “Courts” Were Born Of A Bogus “National Security” Rationale — “[Author Alison] Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency.” — New Book By Professor Alison Peck Makes Overwhelming Case For Progressive Reforms, Impartial Expert Judges, Judicial Independence!

Professor Alison Peck — Professor & Author Alison Peck
Director, Immigration Clinic
West Virginia Law
PHOTO: West Virginia Law website

https://www.motherjones.com/politics/2021/04/the-original-sin-of-americas-broken-immigration-courts/

From Mother Jones:

The Original Sin of America’s Broken Immigration Courts

A new book reveals how this troubled system began with FDR and wartime paranoia.

Isabela Dias

Let our journalists help you make sense of the noise: Subscribe to the Mother Jones Daily newsletter and get a recap of news that matters.

During the Trump administration, Alison Peck started to see more of her cases have an outcome she describes as “a door just slammed” in the clients’ faces. A law professor and co-director of the Immigration Law Clinic at West Virginia University College of Law, Peck grew concerned that paths to immigration relief previously available to them were no longer an option. The explanation for it was an increasingly common practice whereby the US Attorney General, who is a political appointee, would self-refer cases previously decided by an immigration judge and then use them as vehicles for broad policy changes. These precedent-setting determinations included restricting asylum for victims of domestic violence and gang violence, and limiting immigration judges’ power to manage their dockets by temporarily closing low-priority cases. Some of Peck’s clients were impacted by both decisions. “It was very distressing to see this happen and have to tell people midway through the game that the rules had been changed,” she says. Hence, the experience of the door slammed shut.

Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency. “It didn’t make sense to me, and it didn’t fit with anything I knew about administrative law theory,” she says. So Peck decided to look for an explanation for how this anomalous system had been set up in the first place, and what rationale, if any, sustained it despite a general consensus that the existing structure is nothing if not broken.

Peck shares her findings in the upcoming book The Accidental History of the US Immigration Courts: War, Fear, and the Roots of Dysfunction, a revealing account of how wartime paranoia and xenophobia shaped a system that has been with us for over 80 years. “As long as the immigration courts remain under the authority of the Attorney General, the administration of immigration justice will remain a game of political football—with people’s lives on the line,” Peck writes. I called Peck to discuss what World War II and Nazi Germany have to do with modern-day US immigration courts, and how Congress can fix an “irrationally constructed” system.

You trace the origins of the architecture of immigration courts back to two pivotal moments. The first is 1940, when President Franklin D. Roosevelt moved the immigration services from the Department of Labor into the Department of Justice. How did that come about?

Immigration services had long been treated as kind of a stepchild within the Department of Labor. With the New Deal and the labor strife throughout the 20s and into the 1930s, the Secretary of Labor had the obligation to deal fairly and impartially with union leaders, many of whom were immigrants, but then also had the responsibility of investigating and deporting immigrants who were in the country unlawfully. That tension started to become pretty extreme. Francis Perkins, the Secretary of Labor at the time, ended up being in the political crosshairs in part because of her handling of immigration cases. She was in favor of immigration being moved out of the Department of Labor, but she didn’t think it was very appropriate to have it in the Department of Justice because it shouldn’t be associated with crime and law enforcement.

In fact, Roosevelt had resisted members of Congress and the public for over a year. He had lawyers in the DOJ study the issue, and they sent him a report concluding that moving the immigration services into the DOJ would be inappropriate and could change the understanding of immigration for the country. His attorney general at the time, Robert H. Jackson—who later became a Supreme Court justice and also presided at the Nuremberg trials—advised him against it, calling for a sort of temporary wartime agency that dealt with the threat of sabotage, rather than setting up a system that invites an entry of politics into immigration cases. So it’s not as if Roosevelt and his advisers didn’t understand the risks of what they were doing. They did, and they resisted it for some time. But because of the fear and the nature of the threat and things that they just couldn’t have known at the time, they decided, for lack of any better option, that they would do this.

At the time, the Roosevelt administration justified the move as a necessary response to a national security threat. How exactly did the war in Europe ultimately influence his decision?

In 1939, much of Congress was still pretty isolationist, and there was a lot of skepticism about Roosevelt’s willingness to get involved in the war and make the United States a leading force. The occupation of Denmark by the Nazis in April 1940 was really a game changer. The isolationism of the United States up until that point was based on this notion that we’re an ocean apart and protected by geography—what happens in Europe can’t affect us directly. But Denmark had possession of Greenland, so the Nazis had a base in North America where they could refuel, restock, and plan attacks from there.

By that time, the State Department and the FBI were both actively tracking what they saw as the “Fifth Column” threat: this idea that foreign nationals might be plotting to take over from within the country without anyone ever knowing what happened. When the invasion of France and the Low Countries occurred in May [1940], many people assumed that this must have been because people in high level positions within these countries were simply raising the drawbridge and letting the Nazis through without resistance. [Roosevelt] was very influenced by the visit that the Undersecretary of State Sumner Welles had paid to the Axis powers. He came back very worried and told Roosevelt “I think we need to make this move.” After Roosevelt had said no for a year, he changed his mind and within three days, it was done.

This decision looks very different in retrospect, doesn’t it?

It’s understandable in historical context that Roosevelt felt that he needed to do something to protect against what could be a serious threat. But in hindsight, he realized the fears were misplaced. As it happened, the Nazis kept their plans very close to the vest and didn’t trust people outside their inner circle. This “Fifth Column” was actually just propaganda and the enemy stoking fear in order to create insecurity and undermine Allies’ morale.

“What happened was that people were understandably fearful at times of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.”

Looking back now, 80 years later, it certainly has had the effect that Roosevelt and his advisors feared of making immigration be equated with crime and caught up with the political process. It really is sort of a function of historical accidents that we have the system where it is. It’s not the case that anyone ever said it would make good sense from an administrative law perspective to have immigration adjudication done in the Department of Justice under the control of the Attorney General. That was not a conversation that ever occurred. What happened was that people were understandably fearful at the time of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.

You write that the scenario Roosevelt had feared sixty years earlier of a foreign attack from within the country came to be in the early 2000’s with 9/11, and that in turn overhauled immigration policy in the twenty-first century. What did that overhaul mean specifically for immigration courts?

I looked to see whether there had ever been serious consideration of changing this system in the last 80 years, particularly after the realization that this so-called “Fifth Column” never really existed, and this was really just a response to Nazi propaganda that we are still stuck with. What I found was that in the 90s, there was some movement toward reform, but then 9/11 happened and changed the way Americans were thinking about foreign nationals, immigration, visas, and the relationship between the State Department and the FBI or other domestic law enforcement. For some time, it appeared that the immigration courts would be moved into [the recently created Department of] Homeland Security. Many people in Congress, especially Democrats, but some Republicans as well, were concerned about this. Maybe having it in a law enforcement agency wasn’t perfect, but having it in this national security agency, where it would once again be closely aligned with the prosecutors, would be even worse. With relatively little focus on the immigration courts at the time, the best that could be accomplished was to keep them in the Department of Justice instead of moving them into the Department of Homeland Security. It was an opportunity for reform that then got swept away by the events of 9/11.

After that, the issue sort of went underground again, until it started to appear on people’s radar screens during the Trump administration. Until then, the immigration courts were mostly allowed to function independently, and so people weren’t as up in arms about it. For the most part, Attorney Generals were pretty hands off and so people thought: Well, it’s a system that doesn’t make a whole lot of sense, but it mostly works, so it’s not that important to make this institutional change. I think it’s an unfortunate combination of political forces that has led the immigration courts to sort of limp along in this way.

“The Trump administration exposed the vulnerability that was already there in the system.”

Immigration courts were dysfunctional in nature long before Trump took office, but under his administration that gained a new dimension. What did this unprecedented politicization of the courts look like?

The Trump administration exposed the vulnerability that was already in the system. What we saw was a much higher level of intervention, about four times higher than even the George W. Bush administration, which had been the most active prior. One of the ways that happened was through the frequency with which the Trump administration used the Attorney General’s self-referral power, which means the Attorney General can take a case away from an immigration judge at any time and decide it as he wishes. In the Trump administration, that power was used 17 times in four years. Previously, the highest number had been 10 times over eight years.

In one case, the Attorney General made a statement that victims of domestic violence and gang violence would generally not meet the asylum standard. Officers within the Department of Homeland Security were confused by the scope of the decisions that were unprecedented. That confusion is still ongoing, and it affects what happens every day in the immigration courts. Immigration judges are feeling that their independence has been highly compromised, and they are hamstrung by the decisions of the Attorney General to do things that they actually think are just. This system that everyone tolerated for a while, assuming and hoping there wouldn’t be abuses, has now shown to be very clearly subject to abuses.

There’s currently a backlog of more than 1.3 million cases. Yet, despite what seems to be a consensus that immigration courts are not working as they should, we still have the same system from 80 years ago. Are there any solid arguments to justify keeping the immigration courts under the DOJ?

There may be an assumption by people that it was set up this way for a reason, and that we might be losing something if we changed it. When we look at the history, it makes clear that it really was a historical accident that we ended up with this system. There never was a coherent rationale. It was something that was done as a matter of exigency, when there wasn’t a good solution. And so they took a bad solution instead and stuck with it. There’s not a whole lot of efficiency or institutional knowledge that’s being gained by having these immigration courts within the Department of Justice.

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up.” Largely self-created backlogs resulting from “Aimless Docket Reshuffling” by unqualified, xenophobic DOJ politicos and incompetent EOIR bureaucrats have become endemic at the totally dysfunctional Immigration Courts. There are lots of great ideas in the NDPA on how to slash the backlog immediately without denying anyone due process. But, Judge Garland to date has ignored them.

I think most people in the United States are not even aware that the immigrant courts are not part of our federal judiciary. They may be assuming that there’s a certain fairness built in that we expect from the federal courts when, in fact, it isn’t there. These are not courts; they are part of a law enforcement agency. The system is actually set up in such a way that it allows for political decision-making to become part of these court cases in a way that Americans don’t usually think of court cases being decided. That’s really inconsistent with American notions of justice, fairness, and due process. We think that those are decided by what we hope and aspire to be independent judges who are not part of the political branches and not subject to the whims of politics. From that fundamental misunderstanding, if we look deeper, we can see a desire for change. We have the choice to change that now.

Your book seems to suggest that the problem runs way deeper than what stopgap measures like hiring more immigration judges could accomplish. What do you think is an appropriate approach to creating independent immigration courts?

Adding more immigration judges or changing the way immigration judges are hired to have more diversity are not bad ideas in and of themselves, but they don’t get at the root of the problem. The root of the problem is that the immigration courts were never really intended to be impartial courts. Under our basic founding Constitutional principles of due process and separation of powers, we can and should protect the adjudication process and make it separate from the law enforcement process. The Biden administration could play a role by urging Congress to seriously consider and to pass legislation that would separate immigration courts into an Article I court system. Article I courts are a relatively independent system set up by Congress and, by definition, would create separation between the immigration courts and the executive branch. That would give us something that approaches the fairness that people deserve.

This interview has been edited for length and clarity.

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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

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

Clearly, experts like Professor Alison Peck, who understand and have personally experienced the abominable, unconstitutional, life threatening unfairness of this broken and totally dysfunctional system should be the judges and intellectual leaders, particularly at the appellate level, of a reformed, independent Immigration Court system.

In a functioning legal system, successful asylum seekers would fill their essential role in increased legal immigration that has been denied them by a distorted, racist, misogynist system that treats them as a “problem to be solved” — largely because of their skin color — rather than humans entitled to our protection who will contribute to our future.

Indeed, every day we illegally turn away many of those we need for our future in their hour of direst need! Such selfishness, cruelty, mockery of the rule of law, and short-sightedness does not reflect well on our nation!

“It’s not rocket science,” but so far Garland, Monaco, and Gupta have “blown off” the advice of human rights experts like Professor Peck and refused to consult, elevate, or otherwise empower those who could bring due process, order, and expert, professional judging to the Immigration Courts!

Due Process Forever!

PWS

04-29-21

The Plot

Related posts:

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports on LexisNexis Immigration Community:

🇺🇸Due Process Forever!

Related posts:

Dean Kevin Johnson reports for ImmigrationProf Blog:

Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

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🇺🇸Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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

🇺🇸🗽⚖️Due Process Forever!

Related posts:

Judge Garland’s vision of “justice” for immigrants @ Justice:

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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Courtside Exclusive

By Paul Wickham Schmidt

May 4, 2021

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Due Process Forever!

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Due Process Forever!

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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!

Due Process Forever!

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