Immigration Reporter
BuzzFeed News
https://www.buzzfeednews.com/article/hamedaleaziz/ice-immigrants-new-appeals-process
Hamed Aleaziz reports for BuzzFeed News:
Immigration and Customs Enforcement officials have created a new appeals process that will allow immigrants and their advocates to challenge arrests, detentions, and deportations as the Biden administration continues to focus enforcement actions on certain populations, officials said Friday.
The new program, which establishes the ICE Case Review Process led by a senior reviewing officer based in Washington, DC, is part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works but which immigrants are arrested and detained.
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Read Hamed’s complete article at the link.
Shows that somebody in charge in the Biden Administration understands the scope of the problems they face in bringing ICE under control.
Compliance with agency policies has always been an issue at ICE, going all the way back to the days of the “Legacy INS.” Both on and off the bench, I observed that most policies applied only to the extent that local directors and agents chose to follow them.
I can remember essentially being told “We don’t follow that policy here,” or words to that effect. Or the time that an ICE Assistant Chief Counsel cheerfully told me in court: “Judge, you can enter any order you want. But, our deportation officer will decide whether this respondent actually gets released from custody.”
No wonder that ACC didn’t feel it necessary to appeal my custody decision after I had ruled against him. Of course, DOJ regulations (actually enacted by the Clinton Administration) give ICE Counsel unilateral authority (“The Clamper”) to stay compliance with IJ release and bond orders pending appeal. So, ICE always holds the “trump card” in bond proceedings.
Fortunately, represented respondents can threaten to go to U.S. District Court to force ICE compliance with an administrative order, if necessary. (The respondent in my case was represented.) But, for unrepresented individuals facing ICE intransigence, not so much.
That’s probably why a culture of disdain for immigrants’ rights and dislike of lawyers has grown up in so many ICE operations.
I also recollect that even in the Obama Administration, under pressure from ICE Enforcement, EOIR Management pushed Immigration Judges to “keep out of” the manner in which ICE complied with things like the “Morton Memo” or “PD” that should have been keeping certain cases out of court. And the BIA has traditionally stayed away from commenting on or reviewing prosecutorial policies, even when they directly affect court workloads or individual outcomes.
There were creative ways of skirting many of these bureaucratically-imposed blinders and pushing ICE, at least in court, to act in accordance with their own policies. But, it had to be done subtilely. EOIR was usually eager officially to announce its own fecklessness when it came to getting compliance from ICE.
I often marveled at the BIA’s ability to explain why it didn’t have authority to solve problems or do justice. In some instances, the Article III Courts actually had to instruct the BIA that they had authority to do things that they had claimed to be powerless to do.
In addition to the ICE policy described in Hamed’s article, there are other obvious ways in which compliance could be strengthened. Judge Garland could create a “New EOIR” dedicated to the original vision of due process, fundamental fairness, and best practices. He could also empower Immigration Judges to hold ICE accountable for following its own policies. As part of this, he could confer the long-existing but never implemented authority of EOIR judges to hold attorneys on both sides in contempt of court.
An independent Immigration Judiciary could be an important part of enforcing the rule of law and holding DHS accountable for its actions. But, that’s not possible with the current structural, personnel, and cultural defects that have corrupted EOIR and prevented it from being a progressive force for due process, equal justice under law, and best practices.
Indeed, under the departed regime, lack of accountability, irrationality, open bias, scofflaw behavior, and “worst practices” were institutionalized and celebrated from top to bottom! This was in a “system” already heavily weighted in favor of ICE Enforcement and against individual rights.
It will require “radical due process reforms @ EOIR” from Judge Garland and his team. We’ll soon see whether or not that will be forthcoming.
Folks who have been happily assisting in abusing and dehumanizing asylum seekers, other migrants, and their lawyers for the past four years are not lightly going to be able to “switch over” to insuring due process and fundamentally fair adjudications under the best interpretations and practices — which actually favor the granting of relief in a timely and efficient manner in many cases. Indeed, in some cases, those serving as “judges” at EOIR appear to lack the capacity, expertise, and will to treat those coming before them fairly, impartially, and humanely, even these requirements are at the heart of constitutionally required due process!
🇺🇸🗽⚖️Due Process Forever!
PWS
03-07-21