Matter of Castro-Tum – Page 2 – immigrationcourtside.com

LORELEI LAIRD @ ABA JOURNAL: Judges Make The Case For An Independent Article I U.S. Immigration Court, Featuring Interviews With “Our Gang” Members Judge Carol King & Me!

http://www.abajournal.com/magazine/article/immigration-judges-executive-politicizing-courts

Lorelei writes in the ABA Journal:

There was no reason to think that the relatively routine immigration case of Reynaldo Castro-Tum would make headlines.

Castro-Tum, a Guatemalan national who entered the United States at 17, was one of thousands who were part of 2014’s “surge” of unaccompanied minors. Like most of those minors, he was eventually released to the custody of a relative—in this case, a brother-in-law who lived outside Pittsburgh. The government repeatedly sent notices to appear at immigration court hearings to that address, but Castro-Tum never showed up.

Normally, that’s the end of the story, since failure to appear in immigration court generally results in a deportation. But Judge Steven Morley of the Philadelphia immigration court suspected the address on file for Castro-Tum was not correct, in part because that’s a common problem with addresses provided for unaccompanied minors. So Morley administratively closed the case, essentially pausing it to look into the address problem. The government appealed it, along with about 200 similar cases, and the Board of Immigration Appeals, the court of next resort in immigration cases, instructed Morley to deport Castro-Tum.

But before he could do that, then-Attorney General Jeff Sessions assigned the case to himself, a power the attorney general has as the head of the federal agency that controls the immigration courts. His opinion in Matter of Castro-Tum, issued in May 2018, says immigration judges have no legal authority to administratively close cases. That alone would have been a big deal in the immigration law world because it took away a well-established tool for managing the already overwhelmed immigration court dockets.

Photo of Former Attorney General Jeff Sessions by Shutterstock.

But what came next drew widespread attention among immigration lawyers as well as the national media, catapulting the otherwise unknown case of a single teenage immigrant into the spotlight. On remand, Morley continued the case to resolve the address problem—and immigration court leadership promptly took it away from him, reassigning it to an administrative judge. Then they reassigned 86 more of his cases. According to a grievance filed by the National Association of Immigration Judges, the union that represents Morley, a supervisor told him that he had been expected to order Castro-Tum deported if he didn’t appear.

NAIJ President A. Ashley Tabaddor says that’s not actually in Sessions’ opinion—and if it were, it would violate federal regulations on immigration judges’ independence. (Morley, like most sitting immigration judges, could not comment on the case per Justice Department policy. Tabaddor, who is also a sitting judge, stresses that she is speaking only in her role as union president.)

“We think that is a clear, clear violation of a judge’s decisional independence,” says Tabaddor, who presides in Los Angeles. “When you tell a judge how the process … should be handled, by definition, that is going to have an impact, and a significant impact, on the outcome.”

The Executive Office for Immigration Review, the DOJ agency that controls the immigration courts, declined to comment, citing pending litigation. Tabaddor said in January that she was unaware of litigation related to the matter.

Before Sessions’ opinion, the ABA had urged in an amicus brief to the DOJ that the attorney general continue to allow administrative closure in immigration cases, citing it as a “practical necessity” for judges to deal with the courts’ huge backlog.

Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes. Changes that have caused concern include unilateral changes to case law, like the one Sessions made in Castro-Tum; pressure on judges to rule faster; and even allegations that the DOJ is considering political affiliation in hiring new immigration judges.

“It’s all part of what our association has referred to as ‘the deportation machine,’ ” says Jeremy McKinney, treasurer of the American Immigration Lawyers Association. “In other words, transforming a court that is supposed to be an independent and neutral trier of law and fact into an arm of law enforcement.”

A TROUBLED HOME

For critics, a major problem with the immigration courts is where they’re housed: within the Department of Justice, an executive-branch department headed by a politically appointed leader. That’s unlike the Article III federal courts or most of the federal administrative law courts.

Immigration law observers have long worried that this exposes the courts to political interference—and recent history supports that. In 2008, the Justice Department’s Office of the Inspector General found that political appointees had hired only politically connected Republicans as immigration judges between 2004 and 2006, despite knowing judges were part of the civil service system. Over the past 30 years, several attorneys general have referred themselves cases in order to overturn the decisions of predecessors from a different party. Presidents of both parties have reprioritized dockets for political reasons.

Most of that is perfectly legal and within the political leadership’s powers—and to some observers, that’s a problem. Take the fact that attorneys general may certify Board of Immigration Appeals cases to themselves. There’s no requirement that they follow precedent or consult anyone else. This permits an attorney general to change case law unilaterally.

“Just allowing that kind of interference compromises the integrity of the court,” Tabaddor says. “Because that’s not how a court is supposed to run. That’s not how law is supposed to be developed.”

Asked for comment on the matter, Justice Department speechwriter Steven Stafford noted that the attorney general’s legal authority to refer himself cases, and authority to control the immigration courts and their judges, is clear under the Immigration and Nationality Act.

“Further, the acting attorney general’s exercise of this authority has been entirely appropriate in each particular case,” Stafford said in an emailed statement. “Those who oppose the use of this authority have a problem not with the acting attorney general, but with the INA.”

If this power of the attorney general is obscure, that might be because most—from both parties—have used it sparingly. Using DOJ archives of agency decisions, the ABA Journal determined that over three eight-year presidencies, former President Barack Obama’s two attorneys general referred themselves a total of four cases; George W. Bush’s three AGs referred themselves 10 cases; and Bill Clinton’s one AG referred herself one case. The ABA Journal found no record of any self-referrals during new Attorney General William Barr’s first time in the job, from 1991 to 1993.

By contrast, Sessions referred himself seven cases during 21 months in office, though he was able to publish decisions on only five before President Donald Trump asked him to resign.

Any hope that former Acting Attorney General Matthew Whitaker would take a lighter touch were dashed in December, when Whitaker certified two cases to himself: Matter of Castillo-Perez, concerning intoxicated driving and the good moral character standard in immigration law, and Matter of LEA, on whether a family connection can be the basis of an asylum claim. The cases were waiting for Barr after he was sworn in.

And the decisions Sessions handed down are not small tweaks. Take Matter of AB, in which Sessions decided that asylum should only rarely be available to people fleeing serious crimes not sponsored by a government. (“AB” are the initials of a woman who said she suffered prolonged domestic violence in El Salvador.) Essentially, Sessions ruled that when the persecution doesn’t come from the government itself, asylum claimants must work harder to show that the home government couldn’t or wouldn’t protect them.

“In practice, [nongovernmental violence] claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address,” Sessions wrote. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Infographic by Sara Wadford

In making that ruling, Sessions swept away precedents set by the Board of Immigration Appeals and the federal appeals courts on what constitutes a “particular social group” under asylum law.

“The attorney general did not rewrite the underlying test for who qualifies for asylum and who does not,” says McKinney, who also runs McKinney Immigration Law in Greensboro, North Carolina. “He just announced that he would have applied the test differently, and his result would have been different. It’s a very, very strange way to issue sweeping precedent decisions.”

Photo of Jeremy McKinney by Shelli Craig Photography

The ruling also removed the basis for asylum claims from thousands of Central Americans who arrived in the United States in recent years to flee uncontrolled domestic abuse or gang violence in their home countries. Retired immigration Judge Paul Wickham Schmidt does not believe that’s a coincidence.

“The grounds that some people have been succeeding on are domestic violence and family-based claims,” says Schmidt, who belongs to the ABA Judicial Division’s National Conference of the Administrative Law Judiciary.” So it’s basically in my view a race-based attack on Central American asylum seekers.”

Because of this, Matter of AB attracted substantial attention. Sessions invited amicus briefs, and the ABA was one of many organizations that filed one, urging the attorney general to let the case law stand. That brief argues that federal appeals courts and the board of appeals have repeatedly found non-state-sponsored crimes—organized crime, “honor killings,” female genital mutilation—adequate for granting asylum. It also pointed out that the attorney general may not unilaterally overturn decisions of the federal appeals courts; the American Civil Liberties Union later cited this theory when it sued the federal government over AB. It won an injunction in that case in December.

It’s still possible to grant asylum on gang or domestic violence grounds, says retired immigration Judge Carol King, also part of the National Conference of the Administrative Law Judiciary, but everyone doesn’t see it that way.

“The danger is that the agency has been now encouraging judges not even to hold hearings if the cases are based on domestic violence,” says King, now a Berkeley, California-based consultant to immigration lawyers.

GUMMING UP THE WORKS

And that’s just asylum. For the immigration court system as a whole—and especially for working immigration judges—bigger problems have emerged from three decisions from Sessions that constrain judges’ ability to end or pause cases. That could worsen the already substantial backlog of cases in immigration court, which totaled more than 829,000 pending cases as of February, according to Syracuse University’s Transactional Records Access Clearinghouse.

Chief among these is Castro-Tum, the administrative closure case. Administrative closure ends a case without a decision, which permits judges to take cases off their dockets if they’re not ready to go forward. This was Morley’s intention in Castro-Tum, where the judge was concerned that the young man’s address was unreliable. Indeed, Tabaddor says the notice to appear was returned to the court after Castro-Tum was ordered deported; immigrant advocates suspect he may have returned to Guatemala.

There are multiple reasons why a pause might be desirable, McKinney explains. Many immigration cases depend on outside agencies’ actions; the State Department issues visas, and U.S. Citizenship and Immigration Services confers green cards and citizenship. Some benefits are also available through state courts, and cases may hinge on a decision from a police agency or an expert of some kind.

For example, McKinney cites special immigrant juvenile status. That’s an immigration status granted to minors who were abandoned, abused or neglected by one or both parents, and recipients must get a court order saying so.

“You go through state court, and then you submit an application to USCIS,” McKinney says. “So what we would see generally is these cases would be either administratively closed or given extended continuances, and then the person would pursue the status. Those kids are now being ordered deported.”

Continuances could have helped, but three months after Castro-Tum, Sessions handed down another decision, Matter of LABR, that requires judges to write a full decision every time they grant a continuance.

“I probably got five to 40 requests for continuances daily when I was on the bench,” King says. “It discourages granting continuances because they’re not requiring the same sort of diligence if a judge denies the continuance.”

Photo of Carol King by Allan Brill

That’s why King believes LABR weighs the decision-making in favor of deportation. It’s also likely to drastically limit judges’ ability to end or postpone cases, along with Castro-Tum and a third decision from Sessions—Matter of SOG and FDB, which limits judges’ ability to terminate or dismiss deportation cases. In addition to making it harder for judges to manage their workloads, King says it’s bad for the system as a whole.

“It means that every case has to come into court, and if it’s not ready to go for some reason, it has to be reset in court,” she says. “It encourages double-booking of cases … which means that parties are not encouraged to be prepared.”

For clients and practitioners, McKinney says the end result is likely to be a flood of appeals.

“We had a 10-year-old ordered deported [while waiting for a USCIS decision],” he says. “Do you think we just said, ‘OK, judge,’ with the 10-year-old and then just took our order of deportation? No, we appealed!” After the Board of Immigration Appeals, litigants can take their cases to the federal appeals court for their circuits, and McKinney believes many will. Thus, he predicts that much of the immigration court backlog will filter up to the appeals courts in a few years.

CARROT OR STICK?

The DOJ is well aware of the backlog and has hired judges aggressively to address it. Several of the actions Sessions took on immigration were announced as ways to address that backlog.

That includes another of his controversial decisions: imposing quotas on immigration judges. Starting with the 2019 fiscal year, judges who want to be rated “satisfactory” on their performance reviews must complete at least 700 cases per year. No more than 15 percent of those cases should be overturned on appeal. There are also completion requirements for specific types of cases. A software dashboard allows judges to check their progress daily.

Asked about this in December, Executive Office for Immigration Review spokeswoman Kathryn Mattingly pointed the ABA Journal to a public conversation that agency Director James McHenry had in May 2018 with Andrew Arthur, executive director of the restrictionist Center for Immigration Studies. McHenry told Arthur that EOIR plans to take circumstances into account when evaluating judges under the new standards—most likely in fall 2019. However, McHenry said EOIR believes that the numbers chosen are reasonable expectations for experienced and properly trained judges.

The NAIJ and some retired judges don’t agree, in part because two judges may handle very different kinds of dockets. Cases involving serious criminal convictions, for example, might be quicker than asylum cases involving unaccompanied minors.

McHenry also testified about the changes before Congress, where he said the performance measures were “neither novel nor unique to EOIR,” and in line with measures recommended by the ABA and used by other federal administrative law systems.

Tabaddor sees that differently.

“The numbers are used as what I would say a carrot in many courts; it’s used to evaluate whether [changes] are needed,” she says. “But no legitimate court uses quotas and deadlines as a stick to put a judge’s job on the line, which directly interferes with their ability to sit impartially on a case.”

The ABA Judicial Division’s 2005 Guidelines for the Evaluation of Judicial Performance do not mention case completions. They say judges should be evaluated on legal ability, integrity, communication, professionalism and administrative ability. They also say evaluations shouldn’t compromise judicial independence and “should be free from political, ideological and issue-oriented considerations.”

King doesn’t think that’s the case here.

“To have judges evaluated on how quickly they’re pushing cases through the system is a really, really dangerous thing to do,” she says. “Because you’re basically tying the judges’ job security to whether they’re pushing cases through, and it’s clear from this administration that their idea with pushing cases through the system is to deny as many as possible.”

Tabaddor sees this as another encroachment on immigration judges’ independence.

“It’s basically psychological warfare with judges, [creating] a constant reminder of their numbers through this dashboard and a constant pressure to reach these unreasonable goals,” she says.

McKinney says he has seen this play out in practice. In one case, he discovered that his client’s minor child had been sexually assaulted in their home country, which became important to the family’s asylum application. The minor had not spoken to a mental health counselor, so McKinney moved for a continuance to allow her to do that. The judge denied it, in part because the evidence for the assault was not from a mental health professional.

“So what we got was … only half-baked consideration, because obviously in the motion we are asking for the time to talk to the precise professional that the judge wanted the minor child to talk to,” he says. “That is the pressure these judges are under.”

JOB OFFERS RESCINDED

The Justice Department actions raised earlier in this story may be concerning to some people, but they’re perfectly legal. However, there are also allegations that the Justice Department is taking politics into account in hiring immigration judges, who are part of the civil service system. The allegations have not been proved—but if true, they might break the law.

Washington, D.C., labor law attorney Zachary Henige says he has been approached by several people who were offered jobs as immigration judges or members of the Board of Immigration Appeals but had those offers rescinded after the 2016 election for what they believe are political reasons. The ABA Journal spoke to Henige about Dorothea Lay, the only client who has authorized him to discuss her case.

Photo of Zachary Henige courtesy of Kalijarvi, Chuzi, Newman & Fitch.

Lay has spent 25 years in the federal government’s immigration services agencies, and she is currently at USCIS. She was offered a job at the appeals board in October 2016. This required a fresh background check (she already has clearance at her existing job), so she understood that she would have to wait to finalize the job.

In late February 2017, Lay did hear back—but only via a two-sentence letter. It said that during the time it had taken to complete the background check, the needs of the agency had evolved, so EOIR was withdrawing the offer. However, the letter was postmarked on the same day that EOIR announced it would expand the number of seats on the board from 17 to 21—requiring four new hires. That’s one reason Lay was not convinced the agency’s needs had changed.

Another was that two of Lay’s recommenders were political appointees of Democrats. Her application also showed that she had worked on issues the Trump administration strongly opposed, including domestic violence as a basis for asylum, the issue in AB. Thus, it would have been easy to guess her politics. Asked about the allegations, EOIR spokeswoman Mattingly did not address them specifically, instead redirecting her comments about others who were hired.

Lay is pursuing a complaint through the federal government’s Office of Special Counsel, an independent agency that investigates alleged violations of the merit system for federal employees. Henige says he has been approached by others who had job offers rescinded after the election, not all of whom retained him.

Members of Congress have also gotten involved. In April 2018, Democratic Reps. Elijah Cummings of Maryland, Don Beyer of Virginia and Lloyd Doggett and Joaquin Castro of Texas wrote a letter to the Justice Department, saying multiple people had approached their offices after having job offers suspended or withdrawn for suspected political reasons.

Six people were hired not long after the letter, according to a statement from Cummings and Doggett. The DOJ did not make its response public, but that response was apparently leaked to Fox News, which said the DOJ acknowledged that 14 people were no longer under consideration for jobs, and gave nonpolitical explanations for all of those decisions.

Henige notes that there’s precedent for improperly politicized hiring, including the 2008 inspector general report from the DOJ. After that became a scandal in 2007, then-Attorney General Alberto Gonzales implemented a hiring process intend-ed to insulate the immigration courts from political considerations, with final candidate recommendation duties shared by the EOIR director, a senior career employee and a senior political appointee.

In 2017, however, Sessions authorized substantial changes to that process, according to a memo uncovered by Human Rights First, a New York-based nonprofit that advocates for human rights and the rule of law, through the Freedom of Information Act. Those changes removed the EOIR director or his designee from the final recommendation stage and removed the chief immigration judge from an earlier stage. The effect is less direct oversight from the agency that will actually employ the judges, and a greater proportion of responsibility to the political appointee.

HIT THE ROAD, JUDGE

Immigration judges aren’t on the edge of revolt. Not every judge agrees with the NAIJ or the retired judges quoted for this article. Arthur, for example—a retired immigration judge—has praised both the use of self-certifications and some of the decisions Sessions made that way.

Perhaps more importantly, immigration judges have limited recourse. As career federal employees, they aren’t legally permitted to strike, Tabaddor says, and lawsuits are limited to cases of individual judges with specific grievances. She says labor union negotiations have been minimally helpful. The grievance filed after the cases were taken from Morley was denied by EOIR last fall on the grounds that EOIR’s actions were lawful, and the NAIJ has merely filed formal correspondences on other matters.

Photo of Ashley Tabaddor by Melodi Miremadi

That’s why Tabaddor wants a more permanent solution: Take the immigration courts out of the Justice Department and put them into an independent agency.

“It’s been done with the bankruptcy courts, it’s been done with the Court of Federal Claims, it’s been done with Tax Court,” she says. “Having a court within the same agency that basically has a law enforcement mandate cannot be defended.”

Mattingly says EOIR believes this is unnecessary and would take substantial resources. But it’s a long-standing goal—not just for NAIJ, but for the ABA House of Delegates, which called for independent immigration courts in 2010’s Resolution 114F. More recently, former ABA President Hilarie Bass testified before the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration in 2018 in favor of independent immigration courts, as did Tabaddor. Arthur testified against it, citing constitutional concerns. Immigration court independence has also long been on the wish lists of AILA and the Federal Bar Association.

The four organizations have been working on legislation to make that a reality, McKinney says, though the coalition differs on details of how best to structure the agency. But the goal is the same: insulating the immigration courts from politics by moving them into an independent agency.

McKinney, who is actively involved in the effort through AILA, notes that major agency reforms don’t happen overnight—but he’s bullish about the possibilities.

“We have seen some genuine interest, and now that the Democrats are taking control of the House, we will see if that can turn into actual legislation,” McKinney says. “My heart goes out to the literally thousands of people who are going to be victims of this flawed system until the day comes that we can get it fixed. But I believe that we can get it fixed.”

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Jeremy McKinney is right. Thousands of humans have been and will continue to be victimized by this screwed up system until it finally gets fixed. Immigration Judges have become “robed pawns” in what has become a cruel parody of justice. And, to be honest about it, far, far too many Article III Judges “punt” on their oaths of office by giving unwarranted “deference” to a system that merits none. Indeed, in a “court” controlled by prosecutors and driven by overtly political, restrictionist agendas, it would make much more sense and be fairer to presume that each removal order is biased in favor of DHS unless the DOJ can establish otherwise.

PWS

03-29-19

INSIDE EOIR: FOIA RESPONSE DOCUMENTS THE BIZARRE FIXATION OF EOIR “MANAGEMENT” ON THE SCHEDULING OF CASTRO-TUM!

https://www.muckrock.com/foi/united-states-of-america-10/castro-tum-judicial-e-mails-55803/#file-212223

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Clink the above link to enter the weird, wacky world of EOIR in the “Age of Sessions.” Let’s remember, there is nothing whatsoever remarkable about the Castro-Tum case except that Sessions chose, for some reason, to make it a “cause celeb.” Indeed, nobody even knows if this dude is still in the US, is alive, or even existed in the first place.

It’s pretty easy to understand why the taxpayers are being ripped off and our justice system is in tatters under Jeff Sessions as he squanders our money on his White Nationalist agenda! Think what America might be like under a real Attorney General, instead of “Gonzo Apocalypto.” The real problems, Russian interference in our elections, smuggling, police misconduct, human trafficking, voter suppression, hate crimes against vulnerable groups, rampant gun violence, government corruption, and violence against women go largely unaddressed while Sessions chases after non-problems to carry through on his “wing nut, extremist, far-right, immigration restrictionist” agenda that made him an “outlier” even within the GOP during his days in the Senate.

I look forward to the day when Jeff Sessions is no longer Attorney General of the US. It might be the only thing I have in common with Donald Trump.

PWS

08-24-18

MORE FROM WASHPOST ON SESSIONS’S ATTACKS ON INDEPENDENCE OF US IMMIGRATION JUDGES!

https://www.washingtonpost.com/local/social-issues/immigration-judges-worried-trump-is-seeking-to-cut-them-out-fight-back/2018/08/09/3d7e915a-9bd7-11e8-8d5e-c6c594024954_story.html?utm_term=.6b3ca4d6ec23

Antonio Olivo reports for WashPost:

The union for the nation’s immigration judges is fighting a government decision to strip a Philadelphia judge of his authority over 87 cases, arguing that the move sidelines judicial independence as President Trump seeks to ramp up deportations.

Immigration judges work under the Justice Department’s Executive Office for Immigration Review, though they have independent authority to determine whether the thousands of undocumented immigrants who come before them every year can remain in the United States through asylum or some other form of relief.

In a labor grievance filed this week, the National Association of Immigration Judges says the office undercut that authority when it removed Judge Steven A. Morley from overseeing juvenile cases that he had either continued or placed on temporary hold amid questions over whether federal prosecutors had adequately notified the subjects to appear in court.

The Justice Department said in a statement Thursday that “there is reason to believe” Morley violated federal law and department policy in those cases, but it did not offer any specifics. The statement said an investigation is ongoing.

[Judge halts deportation in progress, threatens to hold Sessions in contempt]

Trump alarmed immigration judges in June by tweeting that anyone caught at the border, presumably including those seeking asylum, should be deported without a trial.

“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” the president wrote.

In its grievance, the judges’ union focused on a case involving Reynaldo Castro-Tum, a Guatemalan national who arrived in 2014 as a 17-year-old unaccompanied minor.

Castro-Tum’s current whereabouts are unknown, and he had not responded to recent court summonses. Morley temporarily closed his case in 2016, ordering the Justice Department to ensure that Castro-Tum was receiving the notices. He did the same with other similar cases.

Prosecutors appealed Morley’s decision, and the case eventually came to the attention of Attorney General Jeff Sessions, who chose to review it in January.

Sessions concluded that Morley was wrong to close Castro-Tum’s case and ordered it resolved within two weeks.

Amiena Khan, a New York-based immigration judge who is the union’s vice president, said the intervention further raised suspicions that the administration is looking to circumvent the judicial process and move to deport people faster amid a backlog of some 600,000 cases.

“This is another transparent way, surprisingly transparent in this instance, for the agency to come in and re-create the ideology of this whole process more towards a law enforcement ideology,” Khan said.

[Ahead of midterms, Trump hits a wall in efforts to curb illegal immigration]

The system “is based on our ability to look at the facts and adjudicate the claim before us to our best ability and then render a decision,” Khan said. “Not being told by someone else how to rule.”

The union, which represents 350 judges, argues that Morely should get his caseload back. It is asking the Justice Department to assure all immigration judges that their independent authority won’t be undermined.

Immigrant advocates say the dispute highlights a fundamental flaw in immigration courts, where the judges work under the same department that is tasked with prosecuting cases. Several legal groups have renewed a push for federal legislation to overhaul the system so judges can operate more independently, either through a different branch of the Justice Department or as a separate tribunal court.

“We’re very concerned the immigration judges are simply being turned into law enforcement officers,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, which launched a national campaign this month to lobby members of Congress to support such legislation.

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When he isn’t busy praising hate groups, covering for police violence against the African-American community, disenfranchising minority voters, promoting the establishment of religion, using bogus stats to fabricate a connection between immigrants and violent crime, abusing brown-skinned children, forcing transgender kids to pee in their pants, thumbing his nose at Federal Judges and their orders, briefing his attorneys on how to mislead courts, mounting unconstitutional attacks on cities, ignoring environmental laws, dissing Dreamers, shilling for racist legislation, deconstructing our refugee, asylum, and legal immigration systems, filling court dockets with minor misdemeanants to the exclusion of felons, imposing deportation quotas, shafting brown-skinned refugee victims of domestic violence, huddling with fellow neo-Nazi Stephen Miller, blocking migrants from getting abortions, or hiding under his desk from Trump, one of Jeff “Gonzo Apocalypto” Sessions’s favorite pastimes is interfering with the independence of U.S. Immigration Judges while purposely jacking up the backlog in the U.S. Immigration Courts.

It remains to be seen whether our country can survive this one-man Constitutional wrecking crew and his reign of indecency and intellectual dishonesty.

PWS

08-09-18

BREAKING FROM TAL: WANT PROOF THAT THE U.S. IMMIGRATION COURTS AREN’T “COURTS” AT ALL & THAT DUE PROCESS FOR MIGRANTS IS A FRAUD IN THEM? — DOJ TAKES ACTION AGAINST U.S. IMMIGRATION JUDGE FOR ALLEGEDLY CRITICIZING SESSIONS!

Immigration judge removed from cases after perceived criticism of Sessions

By Tal Kopan

The Justice Department plans to take dozens of cases away from an immigration judge who has delayed deportation orders, in part for perceived criticism of Attorney General Jeff Sessions, the union representing immigration judges said Wednesday.

CNN reported Tuesday that the Justice Department replaced Philadelphia Immigration Judge Steven Morley with an assistant chief immigration judge last month to hear a single case on his docket, which resulted in a young undocumented immigrant, Reynaldo Castro-Tum, being ordered deported.

Assistant Chief Immigration Judge Jack Weil told Morley that comments in the Castro-Tum case were perceived as “criticism” of the Board of Immigration Appeals and attorney general’s decisions and that they were “unprofessional,” according to the grievance filed by the National Association of Immigration Judges. The cases all involve young undocumented immigrants and whether they got adequate notice from the government about hearings at which they failed to appear. Weil also told Morley that he himself should have either ordered Castro-Tum deported or terminated the case altogether.

It’s the most public fight yet between the union that represents the nation’s roughly 350 immigration judges and Sessions, who has intently focused on the immigration courts under his purview. The immigration judges have long bemoaned their structure under the Justice Department, but have taken particular issue with many of the moves pursued by the Trump administration that they say interfere with their ability to conduct fair and impartial court proceedings.

Unlike federal judges, immigration judges are employees of the Justice Department and the attorney general has the authority to hire them, manage their performance measures and even rule on cases with binding authority over how the judges must decide similar issues.

The judge’s union says DOJ broke the collective bargaining agreement by violating Morley’s independent decision-making authority.

Morley denied those comments were unprofessional and reiterated he made the proper decisions in the case based on the facts and due process, the grievance said.

“He’s being targeted for what is perceived to be criticism of the attorney general when it is in fact just a judge doing his job, raising concerns about due process,” Judge Ashley Tabaddor said Wednesday on behalf of the National Association of Immigration Judges.

More: http://www.cnn.com/2018/08/08/politics/immigration-judges-justice-department-grievance/index.html

Also ICYMI – my story on today’s hearing in Texas on DACA: http://www.cnn.com/2018/08/08/politics/daca-hearing-texas/index.html

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Obviously, telling a judge how he “should” have decided a case is a job for the BIA, not the Assistant Chief Immigration Judge. That’s what appeals are for — to correct errors in a trial judge’s handling of a case. Can you imagine a Chief U.S. District Judge telling a colleague how he “should” have decided a case and removing cases because the judge didn’t handle the case as he wanted it done?

And certainly, judges are free to criticize or disagree in their decisions with decisions by superior judges and public officials as long as they ultimately follow the law and precedent. During my tenure as Chair of the BIA, we took a few “zingers” from Immigration Judges who didn’t agree with our decisions or what we ordered them to do. I always told staff to just concentrate on the merits and getting the result right without getting sidetracked by the sideshow. Also, as a trial judge, I applied a number of precedents where I had dissented as a BIA Member without necessarily agreeing that my former colleagues were correct — just acknowledging that they “had the votes” and I was obliged to apply the precedent.

If Congress won’t do its job and remove the Immigration Courts from the Executive Branch, it’s time for the Article IIIs to step in and put an end to this pathetic parody of justice. To steal a line from yesterday’s Washington Post, Session’s outlandish antics could easily be taken from a description of Stalin’s Gulag or a court system in a failing Third World dictatorship. Thank goodness that there are some courageous judges in this system, like Judge Steven Morley, willing to take seriously their oaths of office and to uphold the Constitution, even when it becomes “career threatening” (which, of course, in a functional judicial system — unlike EOIR — it shouldn’t).

Thanks again to Tal for “giving us the scoop” on this one.

PWS

08-08-18

HEAR ME ON THE “REDIRECT” PODCAST WITH MATTHEW ARCHAMBEAULT, ESQ. (PHILADELPHIA) & STEPHEN ROBBINS, ESQ. (YAKIMA, WA) — TOPIC: Matter of Castro Tum & The Deconstruction Of The U.S. Immigration Courts & Asylum System

This Week:

REDIRECT: Due Process

This week Matthew and I are joined by former Immigration Judge Paul Schmidt to discuss the dwindling due process in our Immigration Courts. Matthew discusses his experience with Castro Tum, a case hand picked by the Attorney General to make life worse for literally everyone. Is the AG intentionally trying to overwhelm the Immigration Courts…

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REDIRECT: The War on Legal Immigration

This week we’re joined by Charles Kuck, former president of AILA and the host of some other immigration podcast (….The Immigration Hour) to discuss the important issues of today, including the Pee Tape (PT), whether Charles is still a republican, and the ongoing assault on legal immigration. Yes, that’s right: LEGAL immigration. There is an … Show Notes

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REDIRECT: Open Borders

This week we’re joined by David Bennion, an immigration attorney in Philadelphia, Pennsylvania, to talk open borders. He recounts his harrowing encounter with border patrol as he crossed from Idaho into Utah. You can find David’s information here: http://davidbennion.com Our Patreon page is www.patreon.com/redirect. Leave a tip. Like us on … Show Notes

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REDIRECT: Denaturalized

This week I’m joined by Matthew Hoppock (fake Matthew), an incredible immigration attorney out of Kansas City, to discuss Trump’s new denaturalization task force. Are people really being stripped of their citizenship? Who are they going after, and why? Also, the Army is quietly discharging immigrant recruits who have been promised citizenship. We … Show Notes

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You can find the show at the following places:

http://www.redirectpodcast.com/redirect-due-process/

We’re on Facebook:

https://www.facebook.com/c2cimmigration?ref=hl

The podcast is available on iTunes:

https://itunes.apple.com/us/podcast/redirect-immigration-law-and-perspectives/id911898006?mt=2

And also on Stitcher:

https://www.stitcher.com/podcast/stephen-robbins/coast-to-coast-immigration-law-and-perspetives

We also have a Patreon page:

www.patreon.com/redirect

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Thanks for having me on your show, Matthew and Stephen, and for all you do. I also recommend appearing on future editions of this podcast to any of our “Gang of Retirees” who might be willing to participate. It was both engaging and worthwhile.

PWS

08-03-18

“OUR GANG” OF RETIRED US IMMIGRATION JUDGES ISSUES PRESS RELEASE ON IMPROPER REMOVAL OF IMMIGRATION JUDGE FROM CASTRO-TUM CASE!

On Thursday, July 26, EOIR, in a costly and inefficient use of the agency’s resources, sent an Assistant Chief Immigration Judge to the Philadelphia Immigration Court to conduct a single preliminary hearing. Although there was no indication of any legitimate basis for doing so, the case had been taken off of the calendar of an experienced Immigration Judge in Philadelphia, apparently for the sole reason that the judge had exercised independent judgment by asking for briefs on the issue of whether the respondent had in fact received notice of the hearing. The Assistant Chief Judge (a part of EOIR’s management) ordered the respondent removed in absentia without further inquiry into such question, fulfilling the purpose for which she was sent to Philadelphia.

An independent judiciary is imperative to democracy. Immigration Judges have always struggled to maintain independence while remaining in the employ of an enforcement agency, the Department of Justice, and serving at the pleasure of a political appointee, the Attorney General. Although not entitled to the same due process safeguards as criminal proceedings, the consequences of deportation can be as harsh as any criminal penalty. As their decisions often have life-or-death consequences, Immigration Judges must be afforded the independence to conduct fair, impartial hearings. For this reason, some important due process safeguards are required in deportation proceedings, and errors should be corrected through the appeals process, not through interference by managers.

Last Thursday’s case had been remanded by Attorney General Jeff Sessions. In the absence of another explanation, it would seem that EOIR’s management did not believe Sessions’ purpose in remanding the case was for an Immigration Judge to then exercise independent judgment to ensure due process. The agency therefore removed the case from the docket of a capable judge in order to ensure an outcome that would please its higher-ups. While as former Immigration Judges and BIA Members with many decades of combined experience, we appreciate the pressures on EOIR’s leadership, such interference with judicial independence is unacceptable. EOIR’s management exists to fulfill an administrative function, not to impede on the decision-making process of its judges. EOIR more than ever needs leadership with the courage to protect its judges from political pressures and to defend their independence. As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.

Hon. Steven Abrams
Hon. Sarah M. Burr
Hon. Jeffrey S. Chase
Hon. Cecelia M. Espenoza
Hon. John F. Gossart, Jr.
Hon. William P. Joyce
Hon. Carol King
Hon. Margaret McManus
Hon. Charles Pazar
Hon. Susan Roy
Hon. Paul W. Schmidt
Hon. Polly A. Webber

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Sadly, no surprise that under Sessions the “captive” U.S. Immigration Courts are becoming more blatantly politicized — always in ways that are adverse to Due Process, an independent judiciary, and the rights of migrants appearing before those courts.

We need an Article I U.S. Immigration Court, run by judges, not politicos, with the assistance of professional court administrators responsible to the judges.

PWS

07-30-17

HON. JEFFREY CHASE: SOME IMMIGRATION JUDGES START PARTICIPATING IN THE SESSIONS/DHS ALL-OUT ATTACK ON DUE PROCESS BY SUBJECTING ASYLUM APPLICANTS TO AN UNAUTHORIZED “SUMMARY JUDGMENT PROCESS” TO DENY ASYLUM WITHOUT A HEARING – The Likely Result Of Yet Another Administration “Haste Makes Waste” Initiative – Massive Denials Of Due Process, Unlawful Removals, Lost Lives, Massive Remands From The “Real” Courts, Further Loss Of Credibility For The Immigration Courts, More Unnecessary Backlogs, Waste Of Taxpayer Funds – Hey, What’s Not To Like About Another Jeff Sessions Bogus White Nationalist Scheme?

https://www.jeffreyschase.com/blog/2018/6/24/are-summary-denials-coming-to-immigration-court

Jun 24 Are Summary Denials Coming to Immigration Court?

An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony. The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.

I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation. Rather, all are pieces in a puzzle. Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons. What jumped out at me was the fact that the decision, Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief. It was pretty clear that Sessions wanted this requirement eliminated.

Let’s look at the timeline of recent developments. On January 4 of this year, Sessions certified to himself the case of Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool. On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal. The decision was written by Board Member Garry Malphrus, a hard-line Republican who was a participant in the “Brooks Brother Riot” that disrupted the Florida ballot recount following the 2000 Presidential election.

On March 5, Sessions vacated Matter of E-F-H-L-. Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.

On March 22, Sessions certified to himself Matter of L-A-B-R- et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings. Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances.

On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded. On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.

On May 31, Castro-Tum’s case was on the Master Calendar of Immigration Judge Steven Morley. Instead of ordering Castro-Tum deported in absentia that day, the judge continued the proceedings to allow an interested attorney to brief him on the issue of whether Castro-Tum received proper notice of the hearing. Soon thereafter, the case was removed from Judge Morley’s docket and reassigned to a management-level immigration judge who is far less likely to exercise such judicial independence.

On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group. In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.” The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.

So in summary, within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases. They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.

So where does all this leave the individual judges? There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges. I feel that the above developments have created something of a Rorschach test for determining an immigration judge’s ideology.

The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench. They can find a “fatal flaw” in the claim – either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing. It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.

On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors. They will conference these cases, and hear detailed testimony from the respondent, country experts, and other witnesses on the particular points raised by Sessions in Matter of A-B-. They may consider alternative theories of these cases based on political opinion or religion. They are likely to take the time to craft thoughtful, detailed decisions. And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing. They may also have their decisions remanded by the conservative BIA, whose leadership is particularly fearful of angering its superiors in light of the 2003 purge of liberal BIA members by then-Attorney General John Ashcroft. The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.

There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture. Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-. So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection? It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Four Easy, Low Budget, Steps To A Better, Fairer, & More Efficient U.S. Immigration Court System:

Remove Jeff Sessions and all other politicos from control.
Restore Immigration Judges’ authority to “administratively close” cases when necessary to get them off the docket so that relief can be pursued outside the Immigration Court system.
Give Immigration Judges authority to set and control their own dockets, working with Court Administrators and attorneys from both sides (rather than having DHS enforcement policies essentially “drive the docket” as is now the case) to:
- Schedule cases in a manner that insures fair and reasonable access to pro bono counsel for everyone prior to the first Master Calendar;
- Schedule cases so that pleadings can be taken and applications filed at the first Master Calendar (or the first Master Calendar after representation is obtained);
- Schedule Individual Hearings in a manner that will maximize the chances of “completion at the first Individual Hearing” while minimizing “resets” of Individual Hearing cases.
Establish a Merit Selection hiring system for Immigration Judges overseen by the U.S. Circuit Court in the jurisdiction where that Immigration Judge would sit, or in the case of the BIA Appellate Immigration Judges, by the U.S. Supreme Court.

No, it wouldn’t overnight eliminate the backlog (which has grown up over many years of horrible mismanagement by the DOJ under Administrations of both parties). But, it certainly would give the Immigration Courts a much better chance of reducing the backlog in a fair manner over time. Just that, as opposed to the Trump Administration’s “maximize unfairness, minimize Due Process, maximize backlogs, shift blame, waste money and resources” policies would be a huge improvement at no additional costs over what it now takes to run a system “designed, built, and operated to fail.”

PWS

06-25-48

KANGAROO COURT UPDATE: ICE’S OPLA MAKES IT OFFICIAL: Castro-Tum Made Immigration “Judges” ICE Factotums — ICE Counsel Told That Any Attempt By Your Local Factotum To Disobey Your Orders & Exercise “Independence” Should Be Reported To Higher Authorities Immediately (If Not Sooner)!

Factotum = a servant, retainer – a person working in the service of another (particularly in the household)

Here’s the memo — demeaning and insulting U.S. Immigration Judges in exactly the way that Sessions intended:

https://www.dropbox.com/s/9h1k4942zcomwku/Castro%20Tum%20OPLA%20guidance.pdf?dl=0

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Bottom line: “Sessions made it clear that we at ICE control the Immigration Judges, their dockets, and their priorities. If they get out of line, report ’em. We’ll all working on the “Trump/Sessions Deportation Express.” And we at ICE are the Conductors. The “Judges” are just porters to carry our baggage.

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Talk about feckless!

I think that it’s critical that advocates work documents like this into their Article III briefs and arguments. It’s important to let “real” judges know that notwithstanding fancy titles and outward appearances, the “Immigration Court” is not a real independent court system that can be expected to provide Due Process, or even care about it on a systemic basis, for that matter.

It’s a “captive” of Chief Child Abuser Jeff Sessions who has directed it to carry out his prosecutorial (and overall racist) program of dehumanization and bias against the most vulnerable and defenseless among us. In no way, shape, or form, can a court system selected, directed, and evaluated by Jeff Sessions and his biased minions be considered to provide the “fair and impartial adjudication” required by the Due Process Clause. Article III Judges must be (politely) confronted with their own complicity when they approve any removal order entered by this inherently corrupt, unethical, and unfair system.

Yes, there are many dedicated and conscientious Immigration Judges out there. But, they have been ordered to carry out Sessions’s enforcement vendetta, stripped of all meaningful authority to control their dockets, and told they are being watched to make sure they are “with the program” — which in Sessions’s own words is all about “volume” – not fairness, not quality, not scholarship, not empathy, not human understanding, not respect — nope “volume” which has nothing whatsoever to do with individual justice. How would you like to trust your life to a judge working under those conditions.

Almost every day, Jeff Sessions provides clear public evidence of his bias and total unsuitability for any public office, let along one purporting to run a “court system.”

PWS

06-18-18

RETIRED U.S. IMMIGRATION JUDGES SPEAK OUT AGAINST SESSIONS’S TRASHING OF ADMINISTRATIVE CLOSING IN MATTER OF CASTRO-TUM!

The following statement has been posted on the AILA website:

Retired Immigration Judges and Former Members of the Board of Immigration Appeals Express Disappointment in Attorney General’s Decision in Matter of Castro-Tum

May 18, 20181

1 This statement was updated on May 21, 2018 with additional signatures.

As retired Immigration Judges and Board Members, we are very disappointed in the Attorney General’s decision in Matter of Castro-Tum, which failed to address the excellent arguments made in the numerous briefs (including ours) that were submitted. Based on our combined decades of experience on the bench and the Board exercising administrative closure, we can jointly refute with authority the AG’s mischaracterization of this necessary tool as a permanent status. Sessions failed to distinguish between the different circumstances under which the status has been exercised. We look forward to reiterating our belief that administrative closure is part of the inherent authority granted to immigration judges by Congress on appeal of this issue to the U.S. Court of Appeals.

Sincerely,

Honorable Steven R. Abrams

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable George T. Chew

Honorable Bruce J. Einhorn

Honorable Cecelia M. Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Edward Kandler

Honorable Carol King

Honorable Susan Roy

Honorable Lory D. Rosenberg

Honorable Paul W. Schmidt

AILA Doc. No 18051806. (Posted 5/21/18) 2

Honorable Polly A. Webber

Honorable Robert D. Weisel

List of Retired Immigration Judges and Former BIA Members

The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.

The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

Honorable George T. Chew

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special

AILA Doc. No 18051806. (Posted 5/21/18) 3

Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

Honorable Edward Kandler

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

AILA Doc. No 18051806. (Posted 5/21/18) 4

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

Honorable Robert D. Weisel

AILA Doc. No 18051806. (Posted 5/21/18

castro-tum-update-aila18051806-2

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We have by no means heard the last about Sessions’s absurdist decision. As the Immigration Court System crumbles under largely preventable, self-created backlogs resulting from the actions of politicos in this and the past two Administrations, it is critical that Sessions be held fully accountable and not allowed to shift the blame to the respondents, their attorneys, or the Immigration Judges as he is wont to do.

PWS

05-19-18

GONZO’S WORLD: MORE “AIMLESS DOCKET RESHUFFLING” & BIGGER CONTRIVED IMMIGRATION COURT BACKLOGS ON THE WAY AS SESSIONS SEVERELY LIMITS EOIR’S AUTHORITY TO “ADMINISTRATIVELY CLOSE” CASES – MATTER OF CASTRO-TUM, 27 I&N DEC. 271 (A.G. 2018)

CASTRO-TUM AG3926

KEY QUOTE:

On January 4, 2018, I directed the Board of Immigration Appeals (“Board”) to refer for my review its decision in this matter, see 8 C.F.R. § 1003.1(h)(1)(i), and I invited the parties and any interested amici to submit briefs addressing questions relevant to that certification. Matter of Castro- Tum, 27 I&N Dec. 187 (A.G. 2018).

For the reasons set forth in the accompanying opinion, I affirm the Board’s order and remand for further proceedings. I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party. I overrule Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W- Y-U-, 27 I&N Dec. 17 (BIA 2017), and any other Board precedent, to the extent those decisions are inconsistent with this opinion.

Matter of Castro-Tum

In recent years, immigration judges and the Board have increasingly ordered administrative closure to remove a large number of cases from their dockets. The Board has described the practice as “a docket management tool that is used to temporarily pause removal proceedings,” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017), and “remove a case from an Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012).

Although described as a temporary suspension, administrative closure is effectively permanent in most instances. Unless a party “move[s] to recalendar [an administratively closed case] before the Immigration Court . . . or to reinstate the appeal before the Board,” id., the case remains indefinitely

271

Cite as 27 I&N Dec. 271 (A.G. 2018) Interim Decision #3926

suspended without a final resolution. Statistics supplied by the Executive Office for Immigration Review (“EOIR”) demonstrate that effect.

Since 1980, immigration judges have recalendared less than a third of administratively closed cases. Because the case comes off the active docket, the immigration judge no longer tracks it, and EOIR does not count the case as active in assessing backlogs in immigration proceedings. See, e.g.,Memorandum for All Immigration Judges, from Brian M. O’Leary, Chief Immigration Judge, EOIR, Re: Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure at 2–3 (Mar. 7, 2013) (“OPPM 13-01”). Administratively closed cases are also difficult to recalendar. The Department of Homeland Security (“DHS”) may not know when the reason for the suspension (such as the pendency of a collateral proceeding) has been resolved. Even where DHS moves to recalendar, the Board has imposed the burden of persuasion on the movant.W-Y-U-, 27 I&N Dec. at 18 & n.4. And the alien respondent in most cases has few incentives to seek to recalendar because “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992).

The practice of administrative closure has grown dramatically as the Board has made administrative closure easier to obtain. Statistics maintained by EOIR reveal that over three decades, from EOIR Fiscal Year 1980 to Fiscal Year 2011, 283,366 cases were administratively closed. But in a mere six years, from October 1, 2011 through September 30, 2017, immigration judges and the Board ordered administrative closure in 215,285 additional cases, nearly doubling the total number of cases subjected to administrative closure.

This sharp increase tracks changes in Board precedent. For decades, the immigration judge would grant administrative closure only if both parties agreed. In its 2012 Avetisyan decision, however, the Board discarded that principle and authorized administrative closure even over a party’s objection. 25 I&N Dec. at 694, 696. After the Avetisyan test proved unwieldy, the Board recently “clarif[ied]” that the deciding factor should be “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” W-Y-U-, 27 I&N Dec. at 20 (emphasis added).

This certified case illustrates but one example of how administrative closure encumbers the fair and efficient administration of immigration cases. The respondent entered this country illegally in 2014 and was immediately detained. As an unaccompanied minor, he was served with a Notice to Appear and released to a relative after providing the address where they would reside. Despite several efforts to notify the respondent of his hearing dates, he repeatedly failed to appear. The Immigration Judge nonetheless

272

Cite as 27 I&N Dec. 271 (A.G. 2018) Interim Decision #3926

continued this case four times and finally ordered the case administratively closed on the ground that DHS had not shown it had a sufficiently reliable address to provide adequate notice.

On appeal, the Board vacated the Immigration Judge’s administrative closure order and remanded. DHS represents that this certified case is one of nearly 200 decisions between April 2017 and December 2017 in which an immigration judge either ordered administrative closure or refused to recalendar an administratively closed case over DHS’s objection. Brief for DHS at 10–11, Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).

For the reasons stated below, I affirm the Board’s November 27, 2017 order and hold that there is no general authority for administrative closure. Immigration judges exercise only the authority provided by statute or delegated by the Attorney General. Congress has never authorized administrative closures in a statute, and Department of Justice regulations only permit administrative closure in specific categories of cases. The Attorney General has never delegated the general authority, and I decline to do so now. Cases that have been administratively closed absent a specific authorizing regulatory provision or judicially approved settlement shall be recalendared upon motion of either party. I overrule all Board precedents inconsistent with this opinion and remand for further proceedings.

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

Contrary to Sessions’s usual bogus narrative and distorted statistics, almost all Administrative Closings were either 1) on the DHS’s motion; or 2) on joint motion of the parties. Only minute numbers of cases were closed by IJs over the objection of the DHS under Matter of Avestan.

Indeed, even after this Administration established a basic “no Administrative closing” policy, DHS could only come up with 200 cases closed by IJs over their objection in a period of seven months! That works out to fewer than 400 per year! In other words, citing Avetisyan as a significant factor in the closing of 215,000 cases over the past six years is as absurd as it is intentionally intellectually dishonest.

And, the idea that the DHS is “unfairly burdened” by having to track the Administratively Closed cases is equally absurd. Most cases were closed either because 1) there was relief pending with USCIS, or 2) they were, quite properly, low enforcement priorities for ICE. The idea that it’s unfair to expect DHS to keep track of the cases closed for reasons relating almost exclusively to their own adjudication system and ever-changing enforcement priorities is nonsensical.

The statistic that fewer than one-third of the Administratively Closed cases were ever re-calendared basically supports the idea that they probably shouldn’t have been on the docket in the first place. Obviously, if the USCIS applications were denied, the individuals were picked up for violations, or the cases became ICE enforcement priorities, ICE would have moved to re-calendar. I almost never denied motions to re-calendar by either party, nor am I aware that any of my colleagues did so on a widespread basis. And, denial of such a motion was appealable to the BIA. There has been no showing that many appeals about failures to re-calendar have been filed by any party.

Sessions’s decision also “sweeps under the table” the real major cause of delays and backlogs: “Aimless Docket Reshuffling” instituted by the DHS or EOIR for enforcement or administrative purposes without the input and in many cases over the wishes of private parties. Almost all private immigration practitioners have seen their “ready for trial” cases “shuffled off to the end of the docket” — sometimes 3-5 years away — without their consent to accommodate the latest “IJ details” or the ICE/EOIR “priority of the day.” This often means that the entire case must be prepared again — country conditions change, witnesses die or otherwise become unavailable, memories fade, and most paying clients balk at paying additional fees for circumstances over which they had no control.

Contrary to the “myth” promoted by Sessions and the restrictionists, most individuals in immigration proceedings seek not indefinite delay — which keeps their lives on hold — but a fair, informed, reasoned decision one way or the other within a reasonable period of time.

Sessions and most of the other arrogant bureaucrats driving this absurd parody of a court system have never been in the private practice of immigration law. I have been. While most of my work was not in Immigration Court, I dealt with enough clients to know that neither the lawyer (who has to “babysit” case and prepare it numerous times for the same fee or for free) nor the clients (who also want some certainty in their lives and those of their families) had much interest in lengthy delays.

This case is just further proof of the pressing need for an Article I U.S. Immigration Court and a truly independent immigration judiciary.

Meanwhile, the immigration bar has predictably reacted with outrage to the latest Sessions abuse of power and “dissing” of Due Process.

Below (courtesy of Laura Lynch at AILA) are links to a few statements that were issued earlier this evening by a few NGOs:

AILA: AG’s Latest Move Further Erodes the Independence of Immigration Judge
The American Immigration Council: AIC Condemns Attorney General’s Decision Restricting Immigration Judge’s Authority
NIJC: https://twitter.com/NIJC/status/997262645844639745

PWS

05-18-18

HON. JEFFREY CHASE: Sessions’s Abuses Of “Certification Power” Show Why It’s Past Time To End This Unfair, Unethical, & (Probably) Unconstitutional Mockery of Justice!

https://www.jeffreyschase.com/blog/2018/3/29/the-ags-certifying-of-bia-decisions

Mar 29 The AG’s Certifying of BIA Decisions

The recent flurry of case certifications by Attorney General Jeff Sessions (he has certified four BIA decisions to himself since January) raises the question of the continued appropriateness of the practice. Certification allows a political appointee who heads an enforcement agency, and is subject to the policy agenda of the administration he or she serves, absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise.

The issue has only become a matter of legitimate concern under the two most recent Republican administrations. In her eight years as Attorney General during the Clinton Administration, Janet Reno decided a total of three cases pursuant to certification. Under the Obama administration, AGs Loretta Lynch and Eric Holder decided a comparable number of cases (four). The number is artificially inflated by the fact that two of those consisted of Holder vacating late-term decisions by his predecessor, Michael Mukasey. In one of the vacated decisions, Mukasey’s reasoning had been rejected by five separate U.S. circuit courts of appeal.

In contrast, during the eight year administration of George W. Bush, his three Attorneys General issued 16 precedent decisions through the certification process. Sessions so far seems to be on a similar pace.

One of Bush’s AGs, Alberto Gonzales, co-authored an article in 2016 defending the use of certification.1 As part of his argument, Gonzales traced the history of the practice to the BIA’s origins as an advisory-only panel in the Department of Labor in the 1920s and 30s. When the Board was transferred to the Department of Justice in 1940, it was provided only limited decision-making authority, but was required to refer to the AG certain categories of cases, including those “in which a dissent has been recorded” or where “a question of difficulty is involved.”

I will add that the early appointees to the BIA were career bureaucrats with no prior expertise or experience in the field of immigration law. To me, such history seems to provide no real justification for the continued practice. The BIA has for decades enjoyed the authority to independently decide a broad class of cases. It’s members all come to the Board with far more expertise and experience in the field of immigration law than the AG possesses (although since the 2003 purge by then-AG John Ashcroft, its make-up is far more conservative). Furthermore, whereas in the past, it was the BIA itself, and later, the Commissioner of INS, requesting certification, at present, the AG is handpicking the cases and certifying them to himself, sometimes in order to decide an issue that wasn’t part of the decision below.

Law Professor Margaret H. Taylor has noted that the practice of AG certification “might be seen as objectionable because it conflicts with a core value of our legal system: that disputes are resolved by an impartial adjudicator who has no interest in the outcome.”2 Taylor further points out that many such decisions were issued in the final days of an AG’s term, meaning that the AG “refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.”3

In an article calling for the implementation of procedural safeguards on the AG’s certification power, the author accurately notes that the practice of “agency head review” is common and non-controversial.4 However, Professor Stephen Legomsky has pointed out that the strongest arguments for agency head review – inter-decisional consistency, and agency control (by politically-accountable officials) over policy – don’t translate well to the process of deciding asylum applications, for example.5 This harks back to a point I made in an earlier article – that immigration judges (including BIA Board member) are the only judges in the otherwise enforcement-minded Department of Justice, and that the Department has never really grasped the concept of independent decision-makers existing under its jurisdiction.

Legomsky pointed out in the same article that the BIA, as an appellate authority, “can yield the same consistency as agency head review” through the issuance of en banc decisions; adding that the AG could require the Board to decide certain cases en banc.6 Interestingly, the BIA has given up the use of en banc decisions in recent years. It has not decided a precedent decision en banc even in cases of major import, or following remands from the AG or circuit courts.

Sessions’ use of certification thus far is unique in his redetermination of what the case he chooses is even about. In Matter of Castro-Tum, the DHS appealed an immigration judge’s decision to administratively close proceedings in which an unaccompanied minor did not appear on the grounds that it had met its burden of establishing proper notice of the hearing on the minor respondent. The BIA actually agreed with DHS and remanded the matter. However, Sessions has now turned the case into a referendum on whether any IJ or the BIA has the legal authority to administratively close any case, an argument that was never raised below. In Matter of A-B-, an immigration judge, in defiance of the BIA’s order to grant asylum on remand, refused to calendar the case for a hearing for an excessive length of time, and then disobeyed the Board’s order by denying asylum again for spurious reasons. Somehow, Sessions decided to certify this case to decide whether anyone seeking asylum based on membership in a particular social group relating to being a victim of private criminal activity merits such relief. His ultimate decision could curtail asylum eligibility for victims of domestic violence, members of the LGBTQ community, targets of gang violence, and victims of human trafficking.

Furthermore, two of the cases certified by Sessions involve tools of docket management, i.e. administrative closure and continuances. As immigration judges are the only judges within the Department, and as the BIA has set out uniform procedures for the proper use of these tools, how can the AG justify his need to weigh in on these issues, which clearly do not involve the need for intra-department consistency (as no other component of the department employs such tools), or for control by a politically-accountable official to ensure the coherent expression of agency policy?

Once again, the solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes:

Alberto Gonzales and Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L.Rev. 841 (2016).

Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. 18 (2016).

Id.

Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766 (2010).

Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 458 (2007).

6. Id.

JEFF CHASE

NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.

Now Attorney General Jeff Sessions is considering overruling the judges.

One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.

“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.

Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.

The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.

This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.

But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.

“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.

“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.

It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.

Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.

It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.

“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”

The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.

That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.

“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.

He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.

Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.

In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.

Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.

There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.

Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.

“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.

David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.

“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”

Immigration lawyers say these changes could affect immigrants across the country.

Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.

She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.

“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”

For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.

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

Get the full audio version from NPR at the above link.

Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.

I also have some comments on this article.

In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
- According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
- In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
- The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
  - Had been granted DACA status by USCIS;
  - Had been granted TPS by USCIS;
  - Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
  - Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
- Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
- Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.

There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.

So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!

PWS

03-30-18

WNYC’S BETH FERTIG FERRETS OUT FOOLISHNESS BEHIND THE SESSIONS/DHS ATTACK ON ADMINISTRATIVE CLOSING AND PROSECUTORIAL DISCRETION – I’m Quoted and Pictured!

https://www.wnyc.org/story/trump-administration-reviewing-thousands-deportation-cases-once-put-pause

Beth reports:

“Last year, a young mother who came to the U.S. illegally from Mexico as a child thought she’d essentially won her fight against deportation.

Twenty-four year old Jenny isn’t eligible for DACA, or Deferred Action for Childhood Arrivals. She was in the midst of immigration court proceedings when she told her attorney that she was a victim of domestic violence, which is why WNYC agreed not to use her real name.

In May, Jenny reported her boyfriend to police for allegedly beating and trying to choke her. That action suddenly changed the course of her immigration case.

Jenny was able to apply for what’s called a U visa that would allow her to stay in the U.S. It’s for immigrant victims of crime who cooperate with law enforecement.

The waiting list for a U visa is about three years. But because Jenny met the criteria, and got the Brooklyn District Attorney’s office to sign off on her documents, the immigration judge agreed to put her cause on hold. The legal term for this is administrative closure. The government would no longer seek to deport her while she waited for her special visa.

But a month later, Immigration and Customs Enforcement (ICE) asked the same judge to recalender Jenny’s case and put it back on the docket — meaning she’d have to fight against deportation all over again.

The reason? ICE wrote that Jenny’s U visa was “speculative” and “not available within a reasonable period of time.” The agency said three years was too long to wait — even though they’re controlled by another governmental agency, U.S. Citizenship and Immigration Services (both are within the Department of Homeland Security). ICE said she could wait for her U visa while in Mexico.

The agency also noted that Jenny had been convicted of petit larceny when she was 18. Though it’s not considered a crime that could lead to an immigrant’s removal, it brought her to ICE’s attention a few years ago, and her unlawful presence in the U.S. triggered the deportation proceedings.

For Jenny, the about face was extremely upsetting after suffering domestic abuse and moving into a women’s shelter. “I seek help and I’m still kind of being, you know, bullied,” she said.

Her attorney, Kendal Nystedt of the immigrant rights group Make the Road New York, said ICE seemed to mischaracterize immigration law and said its arguments “were also insulting given the humanity of my client.”

The judge apparently agreed. Late last year, in a one page memo, he denied the government’s request and let Jenny remain in the U.S. But data obtained by WNYC shows that Jenny wasn’t the only immigrant who thought they could stay, only to have the government give their case a second look.

In Fiscal Year 2017, ICE asked to recalendar almost 9400 cases that were administratively closed, or put on pause. That’s an increase of almost 74 percent from the year before President Trump took office. In response, it appears immigration judges may be applying more scrutiny to the government’s requests. They granted 85 percent of those motions to put the cases back on their dockets in 2017, compared to 96 percent in 2016.

When asked why the government is revisiting more cases, ICE spokewoman Jennifer Elzea said the agency generally reviews cases that were administratively closed “to see if the basis for prosecutorial discretion is still appropriate.”

But it’s clear this legal strategy also lets the Trump administration try to deport more immigrants. Former immigration judge Andrew Arthur said there’s a good reason. “Under the Obama Administration, administrative closure was treated as a form of amnesty,” he explained.

Arthur is a fellow with the Center for Immigration Studies, a think tank that supports more restrictive immigration policies. Without commenting on Jenny’s situation he said some cases that were administratively closed involved immigrants who may never qualify for whatever benefit they thought they were likely to receive. But he said the previous administration didn’t act because there were “not deemed a priority for removal.”

In other words, he Obama administration had made criminals the top priority for removal, letting too many others remain.

Retired immigration judge Paul Wickham Schmidt

Beth Fertig/WNYC

Another former immigration judge said that Obama era policy made sense, however. Paul Wickham Schmidt granted administrative closures when he worked in the Arlington, Virginia court.

“An example of a type of case that gets closed quite a bit are cases of individuals who have relatives petitioning for them. And there’s a big backlog of petitions,” Schmidt explained. “So rather than continuing the case time after time, sometimes for years, judges were saying ‘look I’m going to take this case off the docket.'”

He said this management strategy was necessary. The immigration courts have a backlog of 670,000 thousand pending cases. “You’re not even going to complete 670,000 cases probably within my lifetime. You’ve got to decide which cases really belong at the front of the line and which cases you’re not going to prioritize,” he said. “Wasting time in immigration court just doesn’t make sense.”

Despite concerns about further burdening an immigration court system that’s already bursting at the seems, Attorney General Jeff Sessions is considering a much more dramatic step than simply seeking to recalendar the 9400 cases that were reviewed last year. He’s looking into recalendaring all cases that were administratively closed – and there are estimates there could 350,000 of them.”

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

Go to the link to hear the audio from WNYC!

Putting cases like “Jenny’s” back on the already overcrowded dockets is cruel, counterproductive, and wasteful of judicial time. She’s established the qualifications for a U visa, for Pete’s sake. There really isn’t any “uncertainty” — if she stays out of trouble with the law, she’ll get a U visa when her number comes up. No reason on earth for her to “occupy space” on the Immigration Court’s docket.

If she were unwise enough to get into legal trouble before then (seldom happens, in my experience), then that would be the time to 1) revoke her U visa approval, and 2) put her back on the docket. With dockets stretching out for years, why would an Immigration Judge do anything other than keep putting a case like Jenny’s at the end of the docket until her “U number” is reached?

Just because somebody is “removable” doesn’t mean that it makes any sense to put them on already overcrowded Immigration Court dockets. That’s particularly true of an individual who meets the requirements for a legal status (albeit one that because of the arcane structure of the Federal Regulations, an Immigration Judge can’t actually grant).

It’s analogous to the local prosecutor jamming a judge’s docket with jaywalking, littering, and unleashed dog cases so that there isn’t time to hear felony rape and robbery cases! No other law enforcement agency in America that I’m aware of operates without any real prosecution priorities the way Sessions and the DHS are trying to do in this Administration.

And, of course, one large class of “Administratively Closed” cases involves those who had their DACA applications approved by USCIS after Removal Proceedings had been initiated. What would be the point of putting such cases “back on the docket” if DACA were actually terminated?

Even the DHS claims that “Dreamer” cases would not be an “enforcement priority.” (Although, during the Trump Administration such claims by DHS have often proved to be “not credible.”) Therefore, it would literally be years before they could be heard. And many of them have strong cases for other forms of immigration relief such as Cancellation of Removal. I want to believe that the fate of the Dreamers will be resolved long before then.

PWS

03-07-18

HON. JEFFREY CHASE WITH MORE ANALYSIS OF THE CASTRO-TUM AMICUS BRIEFS!

https://www.jeffreyschase.com/blog/2018/3/4/14-former-ijs-and-bia-members-file-amicus-brief-with-ag

Mar 4 14 Former IJs and BIA Members File Amicus Brief with AG

On February 16, the law firm of Akin Gump Strauss Hauer & Feld LLP filed an amicus curiae (i.e. “friend of the court”) brief on behalf of 14 former immigration judges and BIA board members with Attorney General Jeff Sessions pursuant to his request in Matter of Castro-Tum. In that decision, the Attorney General certified to himself an unpublished decision, in which he requested amicus briefs on the following: (1) whether IJs and the BIA have the authority administratively close cases, and if so, whether the BIA’s precedent decisions “articulate the appropriate standard for administrative closure” (2) If it is determined that IJs lack such authority, should the AG delegate it, or conversely, if the IJs have such authority, should the AG withdraw it; (3) can the purpose of administrative closure be satisfied through other docket management devices; and (4) if the AG determines that IJs and the BIA lack such authority, what should be done with the cases already closed.

As immigration judges and the BIA have exercised their authority to administratively close cases for decades, the AG suddenly raising these questions on his own would seem to signal his intent to do away with this important docket-management tool. As background, the respondent in Castro-Tum is an unrepresented, unaccompanied minor. When he did not appear for a scheduled removal hearing after the immigration court mailed a notice to what it was told was the minor’s address, the DHS attorney requested the immigration judge to order the child removed from the U.S. However, the IJ had questions concerning the reliability of the mailing address that the government provided to the immigration court, and declined to enter the removal order, administratively closing the proceedings instead. The DHS attorney appealed. It should be noted that the appeal did not challenge an immigration judge’s right generally to administratively close cases; the DHS believed that in this particular case, the evidence of record should have required the IJ to enter an order of removal. The BIA agreed with the DHS, and reversed the IJ’s order. It was at that point that the AG inserted himself into the matter by certifying an already-resolved matter to himself and turning it into a challenge to the overall authority to administratively close any case.

Numerous groups filed amicus briefs in this case; they include those that represent unaccompanied children; immigrant rights groups, and academic clinicians. The American Immigration Council (AIC) argued in its brief that AG Sessions’ history of hostility towards noncitizens renders him unfit to decide the issue raised in Castro-Tum. Our group of former IJs and Board members brought a unique perspective to the issue, based on our many years of collective experience managing case dockets and addressing the issues that administrative closure is designed to remedy.

Immigration Judges exist by statute. Therefore, the inherent powers delegated to them (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) come from Congress, and not the Attorney General. As our brief explains, such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts. Federal regulations issued by the Department of Justice grant immigration judges the power to “exercise their independent judgment and discretion,” including the ability to “take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition” of the individual cases appearing before them.

Furthermore, the BIA has set out the proper standard for determining whether a case should be administratively closed or required to proceed. In Matter of Avetisyan, the Board laid out the criteria that may properly be considered in determining whether administrative closure is appropriate. In Matter of W-Y-U-, the Board added that the most important consideration is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The immigration judge is required set forth his or her reasons for administrative closure in a decision which may be reviewed on appeal to both the BIA and the federal circuit courts.

The brief additionally points out the inadequacy of other existing tools. In Avetisyan, the immigration judge granted multiple continuances to allow DHS to adjudicate a visa petition filed on behalf of the respondent. However, the petition could not be adjudicated because USCIS (which adjudicates such petitions) was required to keep returning the file to the ICE prosecutor before it could get to the petition because it was needed for the next immigration court hearing (which was only scheduled to check on the status of the visa petition). The file remained in constant orbit, never remaining with USCIS long enough to allow for adjudication of the petition, which in turn would require another continuance. Furthermore, federal regulation specifically requires that immigration proceedings by administratively closed before USCIS will adjudicate certain waivers of inadmissibility. As noted in the brief, DHS defended such administrative closure requirement when its necessity was questioned by a comment on the proposed regulation.

Our group of amici expresses our sincere gratitude to the outstanding attorneys at Akin Gump who provided their pro bono assistance: partner Steven H. Schulman; Andrew Schwerin, the primary drafter; and Martine Cicconi, Mallory Jones, and Chris Chamberlain, who drafted sections of the brief. We also thank Prof. Deborah Anker of Harvard Law School and the staff and students of the Harvard Immigration and Refugee Clinic for its invaluable support and insights. The amici included in our brief were former BIA Chair and Board Member and former Immigration Judge Paul W. Schmidt; former Board Members Cecelia M. Espenoza, Lory D. Rosenberg, Gustavo D. Villageliu, and former Immigration Judges Sarah M. Burr, Bruce J. Einhorn, Noel Ferris, John F. Gossart, Jr., William P. Joyce, Edward Kandler, Carol King, Susan Roy, Polly A. Webber, and myself.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

“GANG OF 14” FORMER IMMIGRATION JUDGES AND BIA APPELLATE IMMIGRATION JUDGES (INCLUDING ME) FILE AMICUS BRIEF IN SUPPORT OF ADMINISTRATIVE CLOSING! – Matter of Castro-Tum

HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

Amici curiae are retired Immigration Judges and former members of the Board of Immigration Appeals, who seek to address the Attorney General’s certified questions regarding administrative closure. Amici were appointed to serve at immigration courts around the United States and with the Board, and at senior positions with the Executive Office of Immigration Review. From their many combined years of service, amici have intimate knowledge of the operation of the immigration courts, including the importance of various procedural mechanisms to maintain efficient dockets. As explained in detail, administrative closure, when used judiciously, is a critical tool for immigration judges in managing their dockets. Without tools like administrative closure, immigration judges would be hampered, unable to set aside those matters that do not yet require court intervention and thus prevented from focusing on the removal cases that demand immediate attention.

In particular, the Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and Page 2 of 32 is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Page 3 of 32 Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War. Page 4 of 32

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Edward Kandler was appointed as an Immigration Judge in October 1998. Prior to his appointment to the Immigration Court in Seattle in June 2004, he served as an Immigration Judge at the Immigration Court in San Francisco from August 2000 to June 2004 and at the Immigration Court in New York City from October 1998 to August 2000. Judge Kandler received a Bachelor of Arts degree in 1971 from California State University at San Francisco, a Master of Arts degree in 1974 from California State University at Hayward, and a Juris Doctorate in 1981 from the University of California at Davis. Judge Kandler served as an assistant U.S. trustee for the Western District of Washington from 1988 to 1998. He worked as an attorney for the law firm of Chinello, Chinello, Shelton & Auchard in Fresno, California, in 1988. From 1983 to 1988, Judge Kandler served as an assistant U.S. attorney in the Eastern District of California. He was also with the San Francisco law firm of Breon, Galgani, Godino from 1981 to 1983. Judge Kandler is a member of the California Bar.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Page 5 of 32 Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Prop Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association. Page 6 of 32

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. She has also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School. Page 7 of 32

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review until he retired in 2011, helping manage FOIA, Privacy and Security as EOIR Records Manager. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket 1990-95. Mr. Villageliu was a member of the Iowa, Florida and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, Iowa he joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT………………………………………………………………………………………………………………… 7

I. Immigration Judges and the Board have inherent and delegated authority to order administrative closure in a case ……………………………………………………………………………… 7

A. Federal courts have recognized that judges possess an inherent authority to order administrative closure………………………………………………………………………… 8

B. Regulations establishing and governing Immigration Judges ratify their inherent authority to order administrative closure. …………………………………………. 9

II. The Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure……………………………………………………………………….. 13

A. The legal standard set forth in Avetisyan and W-Y-U- gives the Immigration Judge the correct degree of independence in deciding motions for administrative closure. ……………………………………………………………………………… 13

B. The facts and disposition of the case at bar show that the legal standard under Avetisyan and W-Y-U- is working correctly. ………………………………………………… 16

III. Fundamental principles of administrative law hold that the Attorney General cannot change the regulations that grant this authority without proper notice and comment rulemaking. ……………………………………………………………………………………………………….. 18

A. Practical docket management considerations weigh in favor of retaining administrative closure. ……………………………………………………………………………… 19

B. Due process considerations also weigh in favor of retaining administrative closure. …………………………………………………………………………………………………… 21

IV. Options such as continuances, dismissal without prejudice, and termination without prejudice, are suboptimal as compared to administrative closure. …………………………….. 22

V. There is no reason to attach legal consequences to administrative closure. ………………… 25

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

Former IJs and Retired BIA Members – FINAL Castro-Tum Brief

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

Thanks again to all retired my colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!
Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!
“Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!

PWS

02-17-18

A TROUBLED HOME

GUMMING UP THE WORKS

CARROT OR STICK?

JOB OFFERS RESCINDED

HIT THE ROAD, JUDGE

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HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

HERE’S A SUMMARY OF OUR ARGUMENT:

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

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