Matter of L-A-B-R- – immigrationcourtside.com

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

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

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

. . . .

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

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

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

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

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

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

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

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

PWS

08-21-18

AILA BLASTS SESSIONS’S PERVERSION OF JUSTICE, DUE PROCESS, & JUDICIAL INDEPENDENCE — THE CONTINUING TRAVESTY OF MATTER OF L-A-B-R-!

https://www.aila.org/advo-media/press-releases/2018/trump-administration-further-undermines-judicial

Trump Administration Further Undermines Judicial Independence

AILA Doc. No. 18081736 | Dated August 17, 2018

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Belle Woods
202-507-7675
bwoods@aila.org

WASHINGTON, DC – On August 16, the Attorney General of the United States issued a precedent-setting decision, Matter of L-A-B-R, that limits the discretion of immigration judges to grant continuances. By restricting the court’s use of a vital docketing tool, the decision further erodes judicial independence and will pressure judges to deny more continuances at the expense of due process.

AILA President Anastasia Tonello responded, “With yesterday’s decision, the Attorney General has tightened the vise on immigration judges even further by interfering with an important case management tool that judges use to ensure cases are resolved fairly and justly. Every day, people who are eligible for relief must come before the immigration court and request a continuance until U.S. Citizenship and Immigration Services (USCIS) is able to make a decision. People who are eligible for permanent residence based on marriage to a U.S. citizen, or for protection as cooperating victims of a serious crime, may be deported unjustly if the judge is blocked from granting them a continuance. Justice cannot be dispensed on an assembly line, but Matter of L-A-B-R- seeks to do just that by pressuring judges to deny continuances and move cases rapidly through the system without due regard for potential relief.”

AILA Executive Director Benjamin Johnson stated, “While playing the role of both prosecutor and judge, the Attorney General continues to perpetuate the false narrative that immigrants are to blame for the long-standing inefficiencies that plague the immigration court system while rewriting our nation’s immigration laws. This decision is especially troubling because it will penalize people for something they simply cannot control: the notoriously lengthy USCIS processing times. Matter of L-A-B-R- is yet another reason why Congress must pass legislation establishing the immigration court as an Article I court separate from the Justice Department. Until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process. Congress must stop the administration from turning immigration courts into yet another enforcement agency.”

For more information about the immigration court system, AILA’s page on the issue can be accessed at http://www.aila.org/immigrationcourts.

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

Cite as AILA Doc. No. 18081736.

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Belle Woods 202-507-7675 bwoods@aila.org

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Where and when will the “deconstruction” of Constitutional Due Process End?

We need regime change!

PWS

08-17-18

“OUR GANG OF RETIRED US IMMIGRATION JUDGES” ISSUES STRONG CONDEMNATION OF SESSIONS’S LATEST ASSAULT ON DUE PROCESS & THE INDEPENDENCE OF US IMMIGRTION JUDGES IN MATTER OF L-A-B-R-!

https://www.aila.org/infonet/retired-ijs-former-bia-statement-matter-of-l-a-b-r?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Instant

Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to AG’s Decision in Matter of L-A-B-R-

August 17, 2018

As former Immigration Judges and Members of the BIA with many decades of combined experience on thebench, we must expose the Attorney General’s latest blow to judicial independence in his decision in Matter of L-A-B-R-.

There is no question that the Immigration Courts are currently overwhelmed by a backlog of more than 700,000 pending cases. Facing the imposition of unreasonable case completion quotas, many Immigration Judges presently feel forced to double-book hearings. One of our members who recently left the bench states that judges at present may receive ten to fifteen motions for continuance a day. Sessions’s latest decision would force each judge to write lengthy, highly detailed decisions for each of these while still trying to complete three or more full hearings a day. Of course, the implementation of this latest decision is entirely unrealistic. Furthermore, the decision imposes no such requirements in instances where DHS seeks a continuance (often for avoidable reasons such as its inability to locate the file or to have adjudicated a petition in time).

It should be remembered that many of the cases before the Immigration Courts involve individuals whose lives are at risk in their home countries. As the President Emeritus of the group’s union has said,Immigration Judges hear death penalty cases under traffic court conditions. In his decision, Sessions usesthe words “efficient,” “efficiency,” or “inefficient” 12 times. The word “justice” (other than in the name ofthe agency he heads, or as a job title) appears only once.

Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets. While judges share the administration’s concern over the high volume of cases, they should be allowed a say inproposing solutions that will not infringe on their independent judgment or their ability to afford due process.

Sincerely,

Hon. Steven Abrams Hon. Jeffrey S. Chase Hon. Bruce J. Einhorn Hon. John F. Gossart, Jr. Hon. Rebecca Jamil Hon. William P. Joyce Hon. Carol King

Hon. Margaret McManus Hon. Charles Pazar
Hon. Lory D. Rosenberg Hon. Susan Roy

Hon. Paul W. Schmidt Hon. Polly A. Webber

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AILA Doc. No. 18081776. (Posted 8/17/18)

List of Retired Immigration Judges and Former BIA Members

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 LawyersAssociation’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 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.

Honorable Rebecca Jamil

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 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

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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.
AILA Doc. No. 18081776. (Posted 8/17/18)
Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

Honorable Charles Pazar

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.

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 blogimmigrationcourtside.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

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AILA Doc. No. 18081776. (Posted 8/17/18)

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.

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It’s an honor to be part of this group of my distinguished colleagues and to stand in opposition to Sessions’s “deconstruction” of Due Process and fundamental fairness in our United States Immigration Courts. Court systems work best when we allow judges to function as judges, without this type of political interference by non-judges. The latter is a responsible for “Aimless Docket Reshuffling” — one of the key causes of the backlog which has developed and increased over the last three Administrations.

PWS

08-17-18

MATTER OF L-A-B-R-, 27 I&N DEC. 405 (AG 2018) – SESSIONS’S LATEST APPARENT ETHICAL LAPSE TILTS MOTIONS TO CONTINUE IN FAVOR OF DHS – Is The Purpose Of The Due Process Clause REALLY To Protect DHS Enforcement From Individuals Seeking Justice?

3933-LABR

Matter of L-A-B-R-, 27 I&N Dec. 405 (AG 2018)

EOIR HEADNOTE:

(1) An immigration judge may grant a motion for a continuance of removal proceedings only “for good cause shown.” 8 C.F.R. § 1003.29.

(2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all.

(3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).

(4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.

(5) The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.

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TAKEAWAYS:

ETHICS TAKES A HOLIDAY: Sessions is an unapologetic shill for DHS Enforcement, a party to all Immigration Court proceedings. Thus, he is precluded by judicial and legal ethics from acting in a judicial capacity in any individual Immigration Court case. Any other lawyer blatantly disregarding the ethics codes by acting in a matter in which he clearly has a conflict of interest would be removed from all DHS cases and disciplined. How does he get away with it?
BLAMING THE VICTIMS: As usual, Sessions makes up a bogus scenario placing the blame for Immigration Court backlogs on the victims of the Government’s “Aimless Docket Reshuffling:” migrants, their courageous and hard working attorneys, and the Immigration Judges and BIA Judges themselves.
WHITEWASHING “AIMLESS DOCKET RESHUFFLING:” As anyone familiar with the system knows, the real problem generating huge backlogs is politicized “Aimless Docket Reshuffling,” (“ADR”) engineered by DOJ, which includes mindless and costly “judicial details,” judicial reassignments, failure to promptly fill judicial vacancies, and perhaps most significantly, ever-changing “priorities” imposed by politicos over the last three Administrations. In fact, individual Immigration Judges have virtually no control over their own dockets. But, Sessions blames the victims of ADR, rather than the “perps” (of which he, of course, is “Perp #1”).
INCREASING THE BACKLOG: Sessions’s decision is an open invitation for DHS to file interlocutory appeals challenging grants of continuances by Immigration Judges. It’s a complete waste of time and grotesque abuse of judicial resources. There’s actually a good reason for the BIA’s “disfavoring” interlocutory appeals of this type. The more time the system spends on “non-dispositive” motions, the less time there is for deciding cases on the merits.
ABUSE OF JUDICIAL RESOURCES: This decision means that Immigration Judges will have to spend more time justifying decisions to grant or deny continuances, which takes time away from making decisions on the merits. And, I’m relatively sure they will receive no “credit” under Sessions’s proposed “quota system” for decisions on motions for continuance.
DUE PROCESS BE DAMNED: Although Sessions appears tone-deaf to the purpose and meaning of the U.S. Constitution, the Due Process Clause is there to protect individuals (and respondents in Immigration Court are particularly vulnerable individuals) from Government overreach, not to protect Government enforcement. By favoring DHS enforcement over private litigants, Sessions basically turns the Constitution on its head (sadly, not for the first time).
A LEVEL PLAYING FIELD?NOT LIKELY: One of the abuses driving the backlog is the unfair practice of EOIR telling counsel who show up as scheduled for merits cases, well prepared, often with witnesses in tow, that their cases have been “rescheduled” to a much later date without any notice or chance to object from them. Does Sessions’s new-found concern about continuances means that the BIA will favorably consider interlocutory appeals from private attorneys and their clients whose cases have been aimlessly rescheduled without notice to make way for the “new DOJ priority of the day?”
A FAIR APPLICATION OF CRITERIA? NOT LIKELY: Given the technical problems and disorder within EOIR, the frequency of missing files, and even missing evidence of removability, at DHS, the delays in DHS Filing Notices To Appear, aimless movement of detainees to “save money,” failure to bring detainees to scheduled hearings, failure to promptly check fingerprints, etc., I suspect that an honest application of the AG’s “revised criteria” actually would favor the respondent in many cases. But, that certainly isn’t the message Sessions is delivering, So I’m skeptical as to whether these criteria will be fairly applied.
ANOTHER CHEAP SHOT AT JUDICIAL INDEPENDENCE: While some Immigration Judges undoubtedly do a better job of adjudicating motions than others, unwarranted continuances by Immigration Judges are not a major problem in the Immigration Court system (although “ADR” by the DOJ most definitely is). Any system that doesn’t trust its judges and its appellate authority to deal with continuances is, by definition, dysfunctional. Although Sessions has no expertise in immigration adjudication, his clear message is that Immigration Judges are not to be trusted; hence the need for “Mickey Mouse” unnecessary “guidance” such as this decision.
A BAD JOKE, NOT A COURT SYSTEM: Sessions continually perverts what is supposed to be a fair “Due Process” court system. Congress seems to have punted. Will the Article IIIs stop this travesty or “go along to get along?” Only time will tell.

PWS

08-17-18

NEW AG CERTIFICATION: SESSIONS CONTINUES ALL OUT ATTACK ON FAIRNESS FOR IMMIGRANTS IN IMMIGRATION COURT — Continuances To Apply For “Collateral Relief” Before USCIS Latest Target — Matter of L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018)!

https://www.justice.gov/eoir/page/file/1045661/download

Cite as 27 I&N Dec. 245 (A.G. 2018) Interim Decision #3921

Matter of L-A-B-R- et al., Respondents

Decided by Attorney General March 22, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l (h)(1)(i) (2017), I direct the Board of Immigration Appeals to refer these cases to me for review of its decisions. The Board’s decisions in these matters are automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of these cases, including the following question:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 17, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 24, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before May 2, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

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Cite as 27 I&N Dec. 245 (A.G. 2018) Interim Decision #3921

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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Bad news for truth, justice, and the American way!

PWS

03-22-18

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