⚖️”THEY BELONG IN THE TRASH BIN” 🗑☠️ — NAIJ CAUTIOUSLY HOPEFUL THAT END OF QUOTAS WILL BRING MEANINGFUL CHANGE — Will Director David Neal Topple Toxic Top-Down Paramilitary Bureaucratic Structure @ EOIR? — Courts Aren’t “Agencies” & Can’t Be “Micromanaged” By “Edicts From On High” — Meaningful Advance Input From Judges, Court Clerks, Stakeholders, Outside Judicial Experts Has Been MIA @ EOIR For Decades, & Disaster & Dysfunction In Courts Show It!

Honorable Mimi Tsankov
U.S. Immigration Judge
President, National Association of Immigration Judges (“NAIJ”)

For immediate release – October 20, 2021

Contact: Jamie Horwitz, jhdcpr@starpower.net, 202/549-4921

An End to a Highly Controversial Quota System Imposed on Immigration Judges

This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”

WASHINGTON –A deeply flawed and inefficient U.S. Department of Justice program that evaluated Immigration Judges primarily on the number of cases they heard, has been “suspended.” The DOJ will no longer evaluate judges on the number of cases they decide Chief Judge Tracy Short wrote in an email sent to the nation’s roughly 500 Immigration Judges this week.

Over the past three plus years, Immigration Judges have looked over their shoulders, worried about being disciplined, just for doing their jobs — providing due process.

“This week’s actions by the Department of Justice under Executive Office for Immigration Review Director David Neal are a step in the right direction toward restoring a greater measure of integrity to our nation’s Immigration Courts,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Our organization looks forward to working with management to restore a fairer process that allows judges to focus on doing their jobs properly. The performance metrics developed by the Trump administration were a violation of judicial ethics, they belong in the trash bin.”

“The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge,” the chief judge wrote in his emailed message. “These new performance measures will focus on balance and equity for the various types of docket assignments.”

In 2018, then U.S. Attorney General Jeff Session imposed a quota of 700 decisions per year on each Immigration Judge, tied to performance reviews, regardless of the complexity of the cases.

The Trump administration also attempted to silence NAIJ from speaking out on the quota system and other policies by decertifying the union. While the union-busting efforts of the previous administration were not completely successful, full collective bargaining rights have yet to be restored to NAIJ.

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.

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

Hon. David. L. Neal — Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

Can David Neal bring all the real parties in interest “to the table,” fashion workable, realistic judicial policies and procedures driven by due process and the realities of Immigration Court practice, keep DOJ’s political meddling at bay, and then tap “new talent” that can actually implement positive change in a judicial, non-bureaucratic manner that achieves “systemic buy-in?” Does he even want to? If so, will Team Garland empower him to succeed, or undermine him?

One thing in Director Neal’s favor: He already retired from EOIR once and presumably could do so again if pressured to elevate political agendas over due process and best practices.

On the flip side, at least one other Director in that same position chose to “go along to get along” with decisions and policies from the DOJ that actively undermined due process and substantially decreased confidence in government.

We’ll see whether the NAIJ’s “cautious optimism” about the “Neal Era @ EOIR” is justified or just another dashed dream about due process, fundamental fairness, and best practices!

🇺🇸Due Process Forever!

PWS

10-24-21

🗽⚖️HUMAN RIGHTS: IMMIGRATION JUDGES SPEAK OUT FOR AFGHAN WOMEN JUDGES — National Association For Women Judges Call To Protect Courageous Afghan Women Featured in WashPost Lead Editorial!

Judge Joan Churchill — Honorable Joan Churchill
Retired U.S. Immigration Judge
Member Round Table of Retired Judges

From WashPost:

https://www.washingtonpost.com/opinions/2021/08/18/no-deadline-should-stand-way-evacuating-us-citizens-afghan-partners/

. . . .

In an interview with ABC News, Mr. Biden himself for the first time hinted at flexibility on the deadline, “if there are American citizens left.” That won’t be enough: This country’s moral responsibilities begin, but do not end, with U.S. citizens. On Tuesday, Sen. Ben Cardin (D-Md.) received and forwarded to Secretary of State Antony Blinken an appeal from the National Association of Women Judges on behalf of 250 Afghan women judges, trained by Americans and other Western countries, some of whom sentenced Taliban fighters to prison for murder or other crimes. These criminals have just been released by the Taliban. The judges have thus joined the ranks of the fearful. This country must make time for all of them.

Here’s the NAWJ’s full statement:

https://www.nawj.org/blog/newsroom/news/nawj-statement-on-afghanistan

NAWJ Statement on Afghanistan

Written by National Association of Women Judges|August 15, 2021|News

NAWJ is the U.S. Chapter of the International Association of Women Judges, an organization which NAWJ founded, developed and helped grow. NAWJ joins the IAWJ in expressing our grave fears for the basic human rights of women and girls in Afghanistan as the Taliban advance and take control of large parts of the country. In particular, the women judges have disclosed that because they have followed their country’s laws, conducted trials, and administered sentences to the guilty, many of whom are members of the Taliban, they will soon be targeted for assassination. The AWJA judges have served in criminal, anti-corruption and narcotics courts, developed in conjunction with the United States over many years. Through their efforts, they have implemented rule of law and anti-corruption principles which are central to the mission statements of NAWJ and IAWJ.

At a virtual meeting of the AWJA last month, at which a number of NAWJ members were present, the Afghan judges spoke about the dangerous and difficult conditions in which they live and work. Some judges have lost their lives in terrorist attacks and several of the judges present had received death threats. Some have already been forced to flee their posts in the provinces with their families because it was too dangerous to remain. Their fears are not theoretical. In January, two women judges traveling to their jobs at the Supreme Court of Afghanistan, were murdered in the street. Now, the prisons housing convicted terrorists have been opened, and sentenced prisoners are contacting their judges threatening reprisals and revenge.

As a chapter of the IAWJ, an organization comprised of over 6500 women judges from more than 100 countries and territories worldwide, NAWJ wants to draw particular attention to the situation of Afghan women judges, given the special role they have played in upholding the rule of law and human rights for all, and the particular dangers they face as a result. We honor their commitment and their courage. Today, some 250 women serve as judges there.

Today, it is reported that the Afghan government has collapsed. The President of Afghanistan has fled the country. The United States Department of State is currently prioritizing visas for employees of the United States, including interpreters, as the United States reaches its date for final withdrawal from Afghanistan. NAWJ urges the Department of State to include the Afghan women judges and their families, who are in such a desperate and precarious position, in facilitating travel and processing visas in the same manner that special measures are being extended to interpreters, journalists and other personnel who provided essential service to the foreign military forces in Afghanistan. NAWJ urges our government to consider the fate of the women judges. By serving as judges and helping develop the Afghan judicial branch, women judges have helped establish the rule of law in their country, an essential pillar of a democratic state. Allowing them to be at the mercy of the Taliban and insurgent groups, given what they have sacrificed and contributed working side by side with the United States would be tragic indeed.

Hon. Karen Donohue

President, NAWJ

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

Thanks to my friends and long-time colleagues Judge Churchill and Judge Tsankov for standing up and speaking out. I understand from them that Senior DC Court of Appeals Judge Vanessa Ruiz (also a past President of the NAWJ) was also instrumental in this effort.

Hon. Vanessa Ruiz — Honorable Vanessa Ruiz
Senior Judge, DC Court of Appeals
PHOTO: Wikipedia

Also, many thanks to Senator Ben Cardin (D-MD) for sending this to Secretary of State Anthony Blinken who hasn’t exactly covered himself in glory or shown much moral or intellectual courage in standing up for the rights and lives of refugees and energizing the bureaucracy to save lives.

Compare this with the conspicuous lack of moral, intellectual, and legal leadership and effective action from the Biden USDOJ on refugee and asylum issues.

Sadly, as many of us tried, in vain, to tell the incoming Biden Administration, failure to make immediate, bold, progressive, humanitarian, due process reforms at EOIR and to take a strong, courageous stand against the continuing misuse of bogus legal rationales to suspend refugee and asylum processing (and ignore our legal and moral obligations to refugees and other migrants) at the border will likely cripple the US response to arising human rights catastrophes and cost more innocent human lives.

Human rights and immigrant justice are not “back burner” issues! Nor are they “rocket science!” Delay costs lives and undermines democracy and our international leadership.

🇺🇸⚖️🗽Due Process Forever! Lack of expertise and moral courage has consequences!

PWS

08-19-21

⚖️EXPERTS TO DISCUSS FUTURE OF IMMIGRATION COURTS ON JULY 23! — Join Judge Amiena Khan (NAIJ) & Julia Preston (Marshall Project, former NY Times) For An Enlightening Discussion From Two “Practical Scholars” Who Have Seen The Harsh Realities Of Today’s Broken & Dysfunctional EOIR “Up Close & Personal!”

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) — Judge Amiena Khan Executive Vice President National Association of Immigration Judges (NAIJ)

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/the-future-of-the-immigration-courts-free-webinar-july-23-2021

The Future of the Immigration Courts: Free Webinar, July 23, 2021

Documented Talks: The Future of the Immigration Courts

“The immigration courts were completely upended by the Trump administration, but what awaits them under this new administration? Join Immigration Judge Amiena Khan, President of the National Association of Immigration Judges, and Julia Preston, Contributing Writer at The Marshall Project, for a discussion on the future of the immigration courts.

The two will discuss where the judge’s union stands in its decertification fight; what judges are hoping to see from this administration and what the lasting impacts of the past 4 years will be.

Join us at 1 pm on July 23rd, 2021

Panelists:

Hon. Amiena Khan:

Judge Khan is the President of NAIJ. Judge Khan was appointed as a United States Immigration Judge in New York by Attorney General Eric Holder in December 2010. In her personal capacity, she is a member of the Federal Bar Association (FBA) and is the Vice-Chair of the Federal Bar Association Immigration Law Section.

Judge Khan is appearing in her capacity as President of NAIJ. Her views do not represent the official position of the Department of Justice, the Attorney General, or the Executive Office for Immigration Review. Her views represent her personal opinions, which were formed after extensive consultation with NAIJ membership.

Julia Preston:

Julia Preston is a Contributing Writer at The Marshall Project. Preston previously worked for 21 years at The New York Times. She was the National Correspondent covering immigration from 2006 through 2016, and a correspondent in Mexico from 1995 through 2001, among other assignments. She is a 2020 winner of an Online Journalism Award for Explanatory Reporting, for a series by The Marshall Project on myths about immigration and crime. She was a member of the Times staff who won the 1998 Pulitzer Prize for reporting on international affairs, for a series on the corrosive effects of drug corruption in Mexico.

Time

Jul 23, 2021 01:00 PM in Eastern Time (US and Canada)

* Required information

First Name *

Last Name *

Email Address *

Confirm Email Address *

Information you provide when registering will be shared with the account owner and host and can be used and shared by them in accordance with their Terms and Privacy Policy.

Register”

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

Should be a great panel from two real experts from the NDPA!

Sadly, however, it’s not clear that Judge Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and others who are supposed to be fixing the dysfunction will be among the audience. Nor do I see much concrete evidence that they have established a meaningful dialogue with those, like Amiena and Julia, who have the expertise and creative problem solving ability to fix the DOJ’s embarrassingly broken “courts” before more migrants and their attorneys are abused.

In my view, and the view of many others, the “destructive phase” of the last four years moved much more rapidly and with more purpose than the “reconstructive and improvement phase” that was promised by the Biden Administration.

There are still far too many of those who were “part of the problem” in key positions, and far, far too few, if any, dynamic new faces who have been brought in (or promoted from within) with the capability and the mandate to fix the mess, establish progressive values, and return to a due process/fundamental fairness/best practices focus!

There are “reliable rumors” of some better appointments in the offing. But, it hasn’t happened till it happens.

🇺🇸Due Process Forever!

PWS

07-20-21

😎👍🏼🧑🏽‍⚖️GOOD NEWS FROM THE NAIJ — DOJ Drops Opposition To Reconsideration Of Decertification!

June 25, 2021

EOIR Withdraws Opposition to
NAIJ Motion to Reconsider,
Does Not Oppose Motion to Remand

Judges:

In a filing this morning, EOIR withdrew its opposition to our motion to reconsider before the FLRA and agreed to a remand to the Regional Director. Here’s their brief.

This is a major step forward in our fight against the previous administration’s effort to decertify NAIJ. NAIJ thanks EOIR and DOJ for taking this important step.

EOIR’s actions come after NAIJ filed with the FLRA earlier this week a Motion to Remand and for Stay. NAIJ’s motion was part of a coordinated effort by NAIJ and our parent union IFPTE to bring the importance of the decertification issue to the attention of the highest levels of this administration. It looks like we succeeded.

Although there are many reasons for optimism, this fight is not yet over. The decertificaton matter remains pending before the FLRA. As we are well aware, the FLRA is still composed of the same members who, over a vigorous dissent, reversed the decision of the FLRA Regional Director who had previously upheld our right to unionize. We are closely monitoring the situation with our litigation team to assure this favorable progress continues until our case is definitively resolved, once and for all.

Thank you for your unwaivering support of NAIJ.

We will keep everyone updated with any further developments.

The NAIJ Board

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

As pointed out by the NAIJ Board, it’s not over till it’s over! But, definitely a big step in the right direction for the NAIJ, the Garland DOJ, and the Biden Administration!

FULL DISCLOSURE: I am a retired member of the NAIJ!

🇺🇸Due Process Forever!

PWS

06-26-26

⚖️🧑🏽‍⚖️🗽NBC NEWS: IMMIGRATION JUDGES KHAN, MARKS, HONEYMAN, & DORNELL SPEAK OUT ON STRESS, MESS, IN GARLAND’S BROKEN IMMIGRATION COURTS 🆘 🏴‍☠️ — Gabe Gutierrez Reports!

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

Hon. Charles Honeyman — Honorable Charles Honeyman
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges

Honorable Lisa Dornell
U.S. Immigration Judge (Retired)
Member, Round Table of Former Immigration Judges

https://www.nbcnews.com/nightly-news/video/immigration-judges-speak-out-on-rise-in-u-s-border-crossings-114715205902

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

Judges Khan and Marks are already on the DOJ payroll. Garland should have brought them in to Falls Church, on at least a temporary basis, to start cleaning up the mess and instituting long overdue due process and judicial independence reforms! The NAIJ which they represent should have been reinstated to represent Immigration Judges.

FULL DISCLOSURE: I am a retired member of the NAIJ.

Recent retirees on the Round Table like Judges Honeyman and Dornell could have been rehired on a temporary basis under available authority to help root out and change the inane quotas, bad precedents, terrible exclusionary hiring processes, and mind-boggling “Aimless Docket Reshuffling” that continues to build backlog, deny due process, and promote reactionary White Nationalist policies in the failed and flailing Immigration “Courts.”

The continuing problems at Garland’s DOJ start with EOIR, but by no means end there! Apparently, Garland’s lackadaisical, permissive attitude toward corruption at DOJ under Trump & his cronies doesn’t get the Hill Dems’ attention unless they and their families were personally targeted by the illegality and misconduct. Otherwise, it’s just the lives of immigrants, asylum seekers, and “the others,” mostly people of color and abused women and children, so who cares?

It’s worthy of noting that it has largely fallen to the press and public interest groups to expose the corruption allowed to fester at Trump’s DOJ. Only then does Garland make tardy and half-hearted efforts to investigate or take action. Cleaning up corruption, changing bad and illegal policies, and rooting out those who carried out such abuses should have been “job one” for the incoming Attorney General. Instead, it’s an “afterthought,” at best!

And, of course, good government and ethics aren’t part of the “institutional culture” @ DOJ that Garland is so anxious to defend. Does every Administration have a “right” to have its illegal actions and corruption covered up and defended by its successor? Will it really deter “good government” if you believe that you might be held accountable by the next Administration for acts of unconstitutionality or illegality?

How come using the law as a “deterrent” is fine as applied to migrants of color, but “deterring” present and future DOJ bureaucrats and politicos from abusing the law in support of a corrupt Administration’s illegal policies isn’t?

Sure, I recognize that guys like Sessions and Barr have a perverted view of what’s unconstitutional. But, the object is to make it difficult for horrible opponents of American democracy like them to become Attorney General in the future and to insure that there will be institutional resistance to any future efforts to corrupt our justice system.

“Normalizing” the unprecedented overtly corrupt behavior of theTrump regime is a continuing problem! We need to fight it all levels of our society and government!

Dishonesty appears to be the main “bipartisan institutional value” at DOJ. No wonder it was so easy for Sessions and Barr to get their corrupt agendas carried out by career lawyers and bureaucrats!

Unless and until Congress finally lights a fire under Garland and his team, and creates an independent Article I Immigration Court, that’s unlikely to change.

Our DOJ is quite obviously broken and reeling. Why isn’t fixing it one of our highest national priorities?

🇺🇸Due Process Forever!

PWS

06-13-21

AS TOTALLY DYSFUNCTIONAL IMMIGRATION COURTS 👎🏽 CONTINUE THEIR DESCENT INTO THE ABYSS, 80 EXPERTS AND ORGANIZATIONS ASK GARLAND TO UNDO BARR’S ILLEGAL “BANISHMENT” OF THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”)🧑🏽‍⚖️

June 7, 2021

The Honorable Merrick Garland Attorney General

U.S. Department of Justice Washington, DC 20500

RE: Department of Justice Should Support the National Association of Immigration Judges and Withdraw the Petition to Decertify its Union

Dear Attorney General Garland,

We, the undersigned unions, organizations, immigration law professors and scholars, and other immigration court stakeholders call your attention to the urgent need to preserve and protect the National Association of Immigration Judges (NAIJ) and support collective bargaining by Department of Justice (DOJ) career civil servants. We are heartened by President Biden’s announcements on January 22, 2021, that both overturned his predecessor’s policies limiting employee rights to collectively bargain and also implement a wide-ranging policy to protect, empower, and rebuild the career federal workforce. President Biden’s announcements specifically encourage union organizing and collective bargaining.1

After four relentless years of union-busting, decisive leadership is needed to refortify the federal workforce. NAIJ and its 500+ bargaining unit members—immigration judges who are DOJ attorney employees—are in need of protection right now! NAIJ has been the collective bargaining representative for immigration judges since 1979. Yet, in 2019, the Trump administration filed a petition to strip immigration judges of their statutory right to be represented by a union and decertify NAIJ.

The Trump administration targeted NAIJ in retaliation for NAIJ’s criticism of both the unreasonable working conditions that DOJ managers imposed on its members and the sweeping curtailment of due process rights in immigration court.

While the decertification attempt was initially and thoroughly rejected in a decision by a career employee of the Federal Labor Relations Authority (FLRA), the decision was abruptly reversed

1 Executive Order 14003, on Protecting the Federal Workforce. 1

in a politically-motivated decision by the FLRA. That FLRA decision ignored the detailed fact-finding of the career employee and reversed long-standing FLRA precedent that 20 years earlier had found that immigration judges were not in a position to influence agency policy.

The FLRA decision is devoid of any reasoned analysis and creates an extremely dangerous precedent for professional workers throughout the federal government. Future administrations could wield this decision like a sword to preclude other professional employees such as physicians, scientists, engineers, and others from unionizing. Indeed, this ill-conceived anti-union precedent could have devastating repercussions for decades to come.

At this moment, a motion to reconsider is currently pending at the FLRA, and we call on the DOJ to withdraw its opposition to that motion, withdraw its decertification petition, and take all steps to restore collective bargaining rights for NAIJ members. President Biden has committed to restoring labor unions and fair working conditions for federal employees. We ask the DOJ to do its part in supporting that objective by taking all necessary actions to ensure that the NAIJ remains a union so that it can continue to represent its members in support of fair working conditions. Doing so will be a service to Immigration Court stakeholders and the public at large.

We seek your immediate review and leadership in this matter. Sincerely,

Amiena Khan

Amiena Khan, President

National Association of Immigration Judges

Unions: AFL-CIO

American Federation of Government Employees (AFGE), AFL-CIO American Federation of Government Employees (AFGE), Local 511

American Federation of Government Employees (AFGE), Local 3525

American Federation of State, County & Municipal Employees American Federation of Teachers

Asian Pacific American Labor Alliance, AFL-CIO

Association of Flight Attendants-CWA

2

Communications Workers of America (CWA)

Department for Professional Employees, AFL-CIO

Federal Education Association

International Federation of Professional and Technical Engineers (IFPTE) International Union of Painters and Allied Trades

Labor Council for Latin American Advancement National Association of Government Employees National Education Association

National Federation of Federal Employees National Nurses United

National Treasury Employees Union

National Weather Service Employees Organization Patent Office Professional Association

Service Employees International Union (SEIU) The International Brotherhood of Teamsters UNITE HERE

United Mine Workers of America

United Power Trades Organization

Organizations:

African Services Committee

Alliance for Justice

American Immigration Lawyers Association AsylumWorks

3

Bellevue Program for Survivors of Torture Brooklyn Law School Safe Harbor Project Catholic Labor Network

Catholic Legal Services, Archdiocese of Miami Catholic Legal Immigration Network, Inc. Center for Gender & Refugee Studies

Columbia Law School Immigrants’ Rights Clinic Disciples Immigration Legal Counsel

Florence Immigrant & Refugee Rights Project Immigrant Defenders Law Group

The Legal Aid Society

Migrant Center for Human Rights

Minnesota Interfaith Coalition on Immigration Mississippi Center for Justice

National Immigration Law Center

National Network for Immigrant & Refugee Rights The Right to Immigration Institute

Round Table of Former Immigration Judges

Law Professors and Scholars with Institutional Affiliation for Identification Purposes only:

Sabi Ardalan

Clinical Professor of Law

Harvard Immigration and Refugee Clinical Program Harvard Law School*

Roxana C. Bacon

4

Adjunct Professor of Law Arizona State University* University of Arizona* University of Miami*

David Baluarte

Associate Clinical Professor of Law Washington & Lee University School of Law*

Jon Bauer

Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law*

Lenni B. Benson

Distinguished Chair of Immigration and Human Rights Law New York Law School*

Matthew Boaz

Professor

Washington & Lee School of Law*

Stacy Caplow

Associate Dean of Experiential Education & Professor of Law Brooklyn Law School*

Rose Cuison-Villazor

Vice Dean and Professor of Law Rutgers Law School*

Ingrid Eagly

Professor of Law

University of California Los Angeles School of Law*

Lauren Gilbert

Professor

St. Thomas University College of Law*

Lindsay M. Harris

Associate Professor & Director, Immigration & Human Rights Clinic University of the District of Columbia, David A. Clarke School of Law*

Katie Herbert Meyer

Associate Professor of Practice and Director of the Immigration Law Clinic Washington University*

Geoffrey Hoffman

Clinical Professor and Immigration Clinic Director

5

University of Houston Law Center*

Alan Hyde

Distinguished Professor of Law and Sidney Reitman Scholar Rutgers Law School*

Erin Jacobsen

Professor and Director at Vermont Law School’s South Royalton Legal Clinic Vermont Immigrant Assistance

Vermont Law School*

Hiroko Kusuda

Clinic Professor and Director of Immigration Law Section

Loyola University New Orleans College of Law*

Stuart H. Smith Law Clinic and Center for Center for Social Justice

Vanessa Merton

Professor of Law

Immigration Justice Clinic Elizabeth Haub School of Law*

Karen Musalo

Professor and Founding Director, Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic

U.C. Hastings College of the Law*

Lori A. Nessel

Professor

Seton Hall University School of Law*

Michael A. Olivas

Wm B. Bates Distinguished Chair (Emeritus) University of Law Center*

Maria Mercedes Pabon Professor of Law

Loyola University New Orleans*

Carrie Rosenbaum

Lecturer in Legal Studies University of California, Berkeley*

Faiza Sayed

Visiting Professor of Clinical Law and Co-Director Safe Harbor Clinic

6

Brooklyn Law School*

Gemma Solimene

Clinical Associate Professor of Law Fordham University School of Law*

Elissa Steglich

Clinical Professor and Co-director Immigration Clinic University of Texas School of Law*

Mark E. Steiner

Professor of Law

South Texas College of Law Houston*

Enid Trucios-Haynes Brandeis School of Law University of Louisville*

Irene Scharf

Professor

Immigration Law Clinic University of Massachusetts*

Doug Smith

Lecturer in Legal Studies Brandeis University*

Paul Wickham Schmidt Immigrationcourtside.com

Erica B. Schommer

Clinical Professor of Law

St. Mary’s University School of Law*

Michael J. Wishnie

William O. Douglas Clinical Professor of Law Yale Law School*

*Institutional affiliation for identification purposes only

7

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

FULL DISCLOSURE: I am a retired member of the NAIJ.

Thanks to my friend Judge Amiena Khan and the rest of her leadership group at the NAIJ for all they do to fight for due process for individuals in Immigration Court!

To date, Garland and his team have been busy defending Billy Barr’s and Trump’s corruption from legal accountability, appointing Barr’s hand-picked “judges” to their overtly non-progressive judiciary, attempting to intimidate the press (until the White House finally had to intervene), and carrying out pre-existing Stephen Miller inspired precedents and policies. Oh yeah, and engaging in their own mindless unilateral round of “Aimless Docket Reshuffling” (a/k/a yet another designed to fail “Dedicated Docket”) in Immigration Court while continuing to build on the pre-existing 1.3 million case backlog. They have also been occupied with ignoring every progressive and expert suggestion and NOT appointing progressives to leadership and judicial positions. Wow! That’s a very full plate (of unappetizing food)!

So, I’m not holding my breath for a favorable response to the latest request for the injection of some legality, common sense, and decency into EOIR. Nor am I expecting Biden and Harris to honor their commitment to Federal Employee Unions, after watching their performance to date on immigration and human rights. Additionally, given the continuing abysmal performance of EOIR and its ongoing waste and incompetence, I doubt whether they want any “internal critics” speaking truth to power.

So far, Garland is on course to be “Billy Barr, Jr.” While that might help Barr to avoid legal accountability for his corrupt administration of justice @ Justice, it’s not so good for progressives who would like to see (and once believed they would see) some “justice from Justice” particularly for racial minorities, women, children, asylum seekers, and other migrants.

They also would like to see at least minimally professional and respectful treatment of those appearing and representing individuals in Immigration Court. While Garland, Monaco, Gupta, and Clarke are all being paid comfortable “top of the line” USG salaries for ignoring long-overdue progressive reforms @ EOIR, many attorneys representing individuals in their “Star Chambers” are operating pro bono or low bono in their attempts to keep Garland’s failing and flailing system afloat.

Just more reasons why we need an independent Article I Immigration Court to deliver due process, racial, and gender justice to individuals, regardless of status.

Barr Departs — Lowering The Barr by Randall Enos, Easton, CT
Republished By License. Guess Garland forgot to flush!

🇺🇸Due Process Forever!

PWS

06-08-21

⚖️NAIJ RESPONDS TO U.N. ON NEED FOR INDEPENDENCE, GENDER DIVERSITY — “[A]chieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications.”

Letter to UN Rapporteur

May 28, 2021

VIA EMAIL to SRindependenceJL@ohchr.org

The Honorable Diego García-Sayán

Special Rapporteur on the Independence of Judges and Lawyers United Nations Office of the High Commissioner for Human Rights Palais des Nations

1211 Geneva 10

Switzerland

Dear Honorable García-Sayán,

Thank you for the opportunity to respond to the Questionnaire on Gender Equality in the Judiciary.

I am writing in my capacity as Chair of the Diversity, Equity, and Inclusion Committee of the National Association of Immigration Judges (NAIJ). I am currently seated at the New York Federal Plaza Immigration Court. Hon. Brea Burgie and I co-chair the NAIJ Gender Diversity, Equity, and Inclusion Subcommittee.

Organizational Background

By way of introduction, NAIJ is a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the United States Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

1

The focus of the NAIJ Diversity, Equity, and Inclusion Committee is to identify underrepresented groups of association members and remove or reduce unconscious biases with respect to such underrepresented groups. We facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for our judges.

Need for Judicial Independence

Our courts are in need of reform due to unprecedented challenges facing the Immigration Courts and Immigration Judges. This is particularly important, because achieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs.

The Immigration Court suffers from an inherent structural defect as it resides in a law enforcement, Executive branch agency – the U.S. Department of Justice (DOJ). The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system. Immigration Judges make life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 538 Immigration Judges in the United States are responsible for adjudicating almost 1,300,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. Many of the individuals brought into proceedings do not have attorneys to represent them despite the fact that the DHS is always represented by attorneys because they have no right to appointed counsel. In contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

The problems compromising the integrity and proper administration of a court underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger agency with competing needs; and eliminating top-heavy agency bureaucracy.

In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most Immigration Judges and attorneys agree the long-term solution to the problem is to restructure the Immigration Court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and

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the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded. To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal would remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions of an adjudicative nature that are currently being performed by the judges and appellate Board members in the Executive Office for Immigration Review.

Questionnaire Response

As of May 19, 2021, there are 538 Immigration Judges (including supervisory Immigration Judges). Of those 313 (or 58.2%) are male and 225 (or 41.8%) are female. Of the 40 Immigration Judges who serve in supervisory/leadership roles, 17 (or 43%) are female. There are 23 Appellate Immigration Judges. In line with international trends where there is more parity for judges overall, but less for high-ranking judicial officers, seven of the Appellate Immigration Judges (or 30%) are female. Currently, EOIR has a female acting agency Director, but the agency has never had a permanent female head. Therefore, while EOIR is approaching gender equality for Immigation Judges overall, there is still a deficit in female leadership at the highest levels.

During the period 2008 – 2013, the agency identified as a clearly articulated strategic objective the hiring of candidates reflecting gender diversity. We are not aware of an updated strategy for addressing this objective. It is our view that when an agency is helmed by largely homogeneous leaders, there is a lack of varied perspectives which inhibits innovation and insights, workers’ morale suffers, the organization becomes less able to attract and retain top talent, fewer diverse career officials are promoted to management positions, and the problem becomes self-perpetuating. This condition also provides fertile ground for implicit bias to take hold and flourish, infiltrating future recruitment, as well as implicating the decisions we render in the individual cases which come before us.

The Biden administration has made diversifying the federal workforce, including at DOJ, a top priority. We are hopeful that more work will be done in the months ahead to support greater gender parity in judicial roles throughout the agency and the Immigration Court. More flexible workplace options are needed, including expanded telework and flexible working hours, which have proven to be workable and effective during the pandemic. As numerous studies have shown, women bear an overwhelming majority of caretaking responsibilities: for children, elderly parents, and family members who need additional care. Ensuring continuation of the flexible policies the Department of Justice adopted during the pandemic would ensure that more women could take roles as Immigration Judges, or stay in that role long-term, and keep a healthy work-life balance.

In regard to promoting female leadership at the highest levels of EOIR, the agency needs to examine the work culture that is rigid rather than flexible in addressing the unexpected needs of employees, and expects individuals to work long hours and be available to work evenings and weekends. This culture excludes many women who may otherwise bring valuable contributions to top-level agency positions.

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We appreciate your time, and attention to this issue. Sincerely,

Mimi Tsankov

Hon. Mimi Tsankov

Chair, Diversity, Equity, and Inclusion Committee

Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee

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

FULL DISCLOSURE: I am a retired member of the NAIJ.

Many thanks to my friend Judge Mimi Tsankov (who also serves with me on the ABA’s National Conference on the Administrative Law Judiciary) for bringing this to my attention.

As Judge Tsankov points out, there has been some progress toward “gender equity” in terms of overall profile. However, in my view, this has been more than offset by 1) the “single sourcing” of judicial appointments to basically discourage and exclude progressive experts, advocates from the private sector, and those with backgrounds in advancing human rights and immigrants’ rights; and 2) constant political interference from the DOJ (under both parties) to promote their political agendas, usually anti-due-process, anti-immigrant, anti-asylum-seeker, and pro-enforcement, with definite overriding racial and nationalist overtones.

Indeed, the sad situation of the NAIJ itself — bogusly “decertified” by “Billy the Bigot” Barr as “punishment” for exercising First Amendment rights, exposing waste and bias, and “daring to speak truth to power” speaks for itself. To date, despite the Biden Administration’s claim to be supportive of the rights of Government employees, Garland has allowed the NAIJ (not to mention asylum seekers and other migrants) to continue to “twist in the wind.”

It’s also worth noting that the NAIJ is the only entity providing meaningful due process and anti-bias training to Immigration Judges. Indeed, it is the only entity providing any type of useful professional training and continuing judicial education at EOIR!

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

PWS

06-08-21

⚠️🆘JUDGE GARLAND’S FAILURE TO ADDRESS HIS DYSFUNCTIONAL IMMIGRATION COURTS CONCERNS UNION, ADVOCATES, EXPERTS, & UNDERMINES HIS LEADERSHIP ON RACIAL INJUSTICE 🏴‍☠️ — Continuation Of Trump-Miller-Sessions-Barr White Nationalist, Anti-Asylum, Racist, Misogynist Agenda, Lack Of Plan To Replace GOP Hacks & Unqualified Judges Is A “Bad Look” For New AG & Team! — Round Table Star Judge Sue Roy Speaks Out!

Suzanne Monyak
Senior Reporter, Immigration

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

https://rollcall.com/2021/04/22/despite-bidens-union-support-immigration-judges-left-waiting/

Suzanne Monyak reports for Roll Call:

. . . .

Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets.

“There’s no reason that Attorney General Garland hasn’t done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”

. . . .

The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases.

The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.

Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.

“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said.

While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said.

. . . .

Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.

Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside.

“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it’s going to collapse under its own weight.”

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

Thanks, Sue!

Today’s Immigration Courts, hotbeds of inefficiency, worst practices, racial bias, misogyny, and unnecessary backlogs, undermine everything that Biden and Harris campaigned on. They also make Judge Garland’s pledge to return justice and independence to the Department of Justice look like a farce.

You simply can’t be responsible for something as totally broken, biased, and due process denying as the current Immigration Courts and have ANY shred of credibility on racial justice, independence, and “good government!”

EYORE — “Eyore In Distress”
“Why won’t Judge Garland help me get back on my feet? I”m so tired of being ‘belly up!’”

Woman Tortured — “We were waiting for Judge Garland to free us from this chamber designed by Sessions, Miller, and Barr? Why is Garland diddling as we suffer and die?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Judge Garland’s concept of “justice” for refugee women and people of color seems a little out of touch — anti-asylum, misogynistic, anti-due process, xenophobic, racially charged precedents remain in place; regressive, unqualified judges on the bench; “worst practices” continue to flourish; 1.3 million case backlog builds; & He hasn’t spoken to the naij:

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

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

Judge Merrick Garland — He doesn’t look like Jeff “Gonzo Apocalypto” Sessions or “Billy the Bigot” Barr, but does he think like them? Or does he just not care about the lives of people of color at the border and in his Immigration “Courts” that aren’t “courts” at all by any Constitutional or rational standard? Has he ever studied “The St. Louis Incident?” He’s basically repeating it!
Official White House Photo
Public Realm

Due Process Forever!

PWS

04-23-21

🤡MORE AMATEUR NIGHT @ THE BIJOU — A NEVER ENDING DISASTER SAGA 🏴‍☠️ — Tsunami Of New Asylum Cases Headed For Garland’s Dysfunctional, Unprepared, Backlogged Immigration “Courts” 🆘 — Will It Take A Legal & Human Disaster Of Epic Proportions To Get The Attention Of Ex-Federal Judge Who Apparently Thinks Racial Injustice & White Nationalist Domestic Terrorism In U.S. Are Unrelated To His Disgraceful “Star Chamber Courts” ☠️ & Their Systemic Abuse of Asylum Seekers, Women, Migrants Of Color, & Their Attorneys! — Experts’ Common Sense Calls For “Smarter Immigration Courts” Apparently Ignored By Tone-Deaf DOJ!

https://www.voanews.com/usa/us-immigration-courts-brace-flood-asylum-claimsb

Aline Barros reports for VOA News:

U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.

. . . .

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.

“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.

. . . .

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

Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”

. . . .

U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).

In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.

“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”

A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”

. . . .

“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.

Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.

“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.

“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.

While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.

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

Read the complete article at the link.

Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”

But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.

Let’s be clear about one thing. Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!

Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.

And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?

With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.

Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.

Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!

But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!

There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs.

Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?

Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.

Wonder what the Judge’s “emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context.

Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.

I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it!

🇺🇸⚖️🗽Due Process Forever!

PWS

04-12-21

⚖️👨🏻‍⚖️ THE BIDEN ADMINISTRATION SHOULD “RE-CERTIFY” THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (NAIJ) — Will They? ❓❓— Marcia Brown Reports For American Prospect

https://prospect.org/justice/one-union-biden-has-not-supported-immigration-judges/

. . . .

The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.

As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.

Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.

“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.

Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.

Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.

Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.

. . . .

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

Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence” — at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.

This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda.

Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” — few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA — continued unabated.

Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up!

Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!

To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director.

Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.

Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!

FULL DISCLOSURE: I am a proud retired member of the NAIJ!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-15-21

🏴‍☠️INSIDE A FAILED AND UNJUST SYSTEM: Reuters Report Explains How The Trump Administration Destroyed Due Process, Fundamental Fairness, & Humanity In The U.S. Immigration Courts!

Mica Rosenberg
National Immigration Reporter, Reuters

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

https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179

Reade Levinson, Kristina Cooke, & Mica Rosenberg report for Reuters:

(Reuters) – On a rainy September day in 2018, Jeff Sessions, then U.S. attorney general, addressed one of the largest classes of newly hired immigration judges in American history.

“The vast majority of asylum claims are not valid,” he said during a swearing-in ceremony in Falls Church, Virginia, according to his prepared remarks. If judges do their job, he said, “the number of illegal aliens and the number of baseless claims will fall.”

It was a clear message to the incoming class: Most of the immigrants who appear in court do not deserve to remain in the United States.

As U.S. President Joe Biden works to undo many of the restrictive immigration policies enacted by former President Donald Trump, he will confront one of his predecessor’s indelible legacies: the legion of immigration judges Trump’s administration hired.

The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.

Judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan. Because hundreds of thousands of immigrants have cases before the court each year, that 11 percentage-point difference translates to tens of thousands more people ordered deported each year. Appeals are rarely successful.

Biden has promised to dramatically expand the courts by doubling the number of immigration judges and other staff. That’s a worthwhile effort, said Stephen Legomsky, a former chief counsel of the U.S. Citizenship and Immigration Services who is now a professor emeritus at Washington University School of Law in St. Louis. “But the challenge is going to be tremendous.”

Although there are no statutory limits on the number of judges who can be hired, expanding the court would be costly and could take years, immigration law experts said.

“The fact that these (Trump-era) judges are already in place inhibits him a great deal,” Legomsky said of Biden.

Stephen Miller, the key architect of Trump’s immigration agenda, told Reuters that the administration had aimed to hire more immigration judges as part of an effort to “create more integrity in the asylum process” and quickly resolve what he termed meritless claims to cut down on a massive backlog.

“Most of the people that are coming unlawfully between ports of entry on the southwest border are not eligible for any recognized form of asylum,” Miller said in an interview. “There should be a very high rejection rate.”

Under U.S. law, immigrants are eligible for asylum only if they can prove they were being persecuted in their home countries on the basis of race, religion, nationality, membership in a particular social group or their political opinions. Miller said many migrants arriving at the border are coming for economic reasons and present fraudulent asylum claims.

Sessions, who as attorney general had the final say in hiring immigration judges, told Reuters that “the problem is not with the Trump judges. The problem was with some of the other judges that seemed to not be able to manage their dockets, or, in many cases, rendered rulings that were not consistent with the law.

The Trump administration’s successors to Sessions, who was forced out in 2018, did not respond to requests for comment.

. . . .

“There has been a significant lack of basic understanding of immigration law and policy with many – not all – but many of the new hires under the Trump administration,” said Susan Roy, an attorney and former immigration judge appointed during the administration of President George W. Bush who has represented immigrants before some new judges.

Reuters spoke with eight other former immigration judges, five of whom served under Trump, who generally echoed her view. Sitting immigration judges are not permitted to speak to the media.

Even for judges with immigration backgrounds, the type of experience they have has been controversial. In 2017, a report commissioned by the Justice Department found a lack of diversity of experience among judges hired, due to an excess of former prosecutors here from Immigration and Customs Enforcement.

. . . .

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

Read the rest of the report at the link.

Hon. Sue Roy is a distinguished member of our Round Table of Former Immigration Judges 🛡⚔️ now in private practice representing asylum seekers and other migrants in Immigration Court.

Hon. Charles Honeyman, quoted elsewhere in the article, is also a member of the Round Table who actually was removed from a case for failing to carry out what he believed to be improper instructions from his “supervisors” who were implementing Sessions’s anti-immigrant policies.

Stephen Legomsky is a former USCIS Senior Executive and esteemed retired Professor who generally is acknowledged as one of American’s leading scholar-experts on immigration and human rights.

Judge Dana Leigh Marks, quoted elsewhere in the article, is a former President of the National Association of Immigration Judges who also successfully argued the landmark Supreme Court case INS v. Cardoza-Fonseca, which established the generous well-founded fear standard for asylum.

Sessions and Miller are notorious White Nationalist xenophobes who have neither represented asylum seekers nor been Immigration Judges. Their efforts to eradicate international norms and legal protections for vulnerable asylum seekers, and their particular bias against female asylum seekers, have been widely criticized and panned by human rights experts throughout the world, as well as enjoined or overruled by some U.S. Courts. They were architects of the widely condemned child separation policy and the New American Gulag (“NAG”).

EOIR is the failed DOJ agency that houses the dysfunctional Immigration Courts.

🇺🇸🗽⚖️Due Process Forever!

PWS

03-08-21

DEMS INTRODUCE BIDEN’S COMPREHENSIVE IMMIGRATION BILL — “U.S. CITIZENSHIP ACT OF 2021” — Lots Of Good Ideas, But Likely DOA In Narrowly Divided Congress! — Judge Garland Must Begin Immigration Court Reforms NOW!

CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN, PHOTO: CNN.com

Lauren Fox
White House Correspondent, CNN News
PHOTO: CNN.com

https://apple.news/AATkWfagCTF2iNQGfw6dDOA

White House announces sweeping immigration bill

Priscilla Alvarez and Lauren Fox, CNN

5:00 AM EST February 18, 2021

The White House announced a sweeping immigration bill Thursday that would create an eight-year path to citizenship for millions of immigrants already in the country and provide a faster track for undocumented immigrants brought to the US as children.

The legislation faces an uphill climb in a narrowly divided Congress, where House Speaker Nancy Pelosi has just a five-vote margin and Senate Democrats do not have the 60 Democratic votes needed to pass the measure with just their party’s support.

Administration officials argued Wednesday evening that the legislation was an attempt by President Joe Biden to restart a conversation on overhauling the US immigration system and said he remained open to negotiating.

“He was in the Senate for 36 years, and he is the first to tell you the legislative process can look different on the other end than where it starts,” one administration official said in a call with reporters, adding that Biden would be “willing to work with Congress.”

The effort comes as there are multiple standalone bills in Congress aimed at revising smaller pieces of the country’s immigration system. Sens. Lindsey Graham, a Republican from South Carolina, and Majority Whip Dick Durbin, a Democrat from Illinois, for example, have reintroduced their DREAM Act, which would provide a path to citizenship for immigrants who came to the country illegally as children.

Administration officials said the best path forward and plans either to pass one bill or break it into multiple pieces would be up to Congress.

“There’s things that I would deal by itself, but not at the expense of saying, ‘I’m never going to do the other.’ There is a reasonable path to citizenship,” Biden said at a CNN town hall in Milwaukee on Tuesday.

“The President is committed to working with Congress to engage in conversations about the best way forward,” one administration official said.

Officials did not say if they believed that the reconciliation process, a special budget tool that applies only to a specific subset of legislation and allows the Senate to pass bills with a simple majority, would be applicable for an immigration bill. “Too early to speculate about it right now,” one official said.

The Senate is working on passing the President’s coronavirus relief legislation through reconciliation. The expectation is that the administration could also use the process to pass an infrastructure bill.

Biden’s immigration bill will be introduced by Democrats Bob Menendez of New Jersey in the Senate and Linda Sanchez of California in the House.

Here’s what the bill, titled the US Citizenship Act of 2021, includes:

. . . .

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

Read the rest of Priscilla’s & Lauren’s analysis at the link.

The White House “Fact Sheet” on the legislation is also available at the link at the end of the above excerpt.

Here’s what that summary says about the U.S. Immigration Courts:

Improve the immigration courts and protect vulnerable individuals. The bill expands family case management programs, reduces immigration court backlogs, expands training for immigration judges, and improves technology for immigration courts. The bill also restores fairness and balance to our immigration system by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals. Funding is authorized for legal orientation programs and counsel for children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims. The bill also provides funding for school districts educating unaccompanied children, while clarifying sponsor responsibilities for such children.
Support asylum seekers and other vulnerable populations. The bill eliminates the one-year deadline for filing asylum claims and provides funding to reduce asylum application backlogs. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to 30,000. The bill also expands protections for foreign nationals assisting U.S. troops.

Unfortunately, the bill does not contain the most important legislative solution: An Article I Immigration Court. Nevertheless, a separate Article I bill will be introduced in the House soon. Since the “USCA of 2021” is largely a “talking draft” anyway, there is no reason why Article I couldn’t be combined with the other changes in the bill.

While attention to improving the Immigration Courts is welcome and long overdue, I think this proposal actually misses the major point: What’s needed right now isn’t necessarily more Immigration Judges; it’s better Immigration Judges, starting, but not ending, with a replacement of the current dysfunctional Board of Immigration Appeals. Only with the improvements in the administrative case law, docket management, and “best practices” that better EOIR judges would bring could we really tell whether more judges are actually necessary.

Right now, throwing more bodies into the ungodly mess at EOIR would only create confusion and aggravate existing problems. And, while the proposal correctly spotlights woeful inadequacies in IJ training and professional development, those alone will not be enough to restore due process to a system wracked by decades of bad judicial selection practices that basically have excluded the “best and brightest” immigration experts from the private sector, those with actual experience representing individuals in Immigration Court, from the “21st Century Immigration Judiciary.”

The good news: Judge Garland won’t need legislation to get this system back on track by:

Immediately replacing the current BIA with judges who are renowned experts in immigration, human rights, and due process, with special attention to those with actual experience representing asylum seekers;
Vacating all of the improper Sessions and Barr precedents, and letting the “new BIA” straighten out the law and implement best practices, including holding IJs who are members of the “Asylum Deniers Club” accountable;
Implementing efficient merit-based judicial hiring practices which would involve public input and actively recruit from communities now underrepresented in the Immigration Judiciary;
Eventually re-competing all Immigration Judge jobs under these merit criteria, again with public input on the performance of current judges part of the process;
Replacing all of EOIR’s incompetent upper “management” with competent professional judicial administrators;
Examining the justification and “bang for the buck” in EOIR’s bloated, yet highly ineffective, headquarters operation in Falls Church with an eye toward maximizing support for the local Immigration Courts and minimizing counterproductive and politicized micromanagement and interference with the operation of local courts;
Making peace and working with the National Association of Immigration Judges (“NAIJ”), which is much more “on top of” the real problems in the Immigration Courts than often clueless EOIR “management” in Falls Church;
Instituting e-filing and other long overdue 21st Century judicial administration practices in the Immigration Courts;
Working cooperatively with the private bar, NGOs, ICE, and local IJs to maximize representation and improve docketing and scheduling practices.

Judge Garland has the authority to make all the foregoing changes, which will immediately improve the delivery of justice at the critical “retail level” of our justice system and make the achievement of racial justice and equal justice for all more than just “pipe dreams.” Immigrant justice is essential for racial justice!

The only question is whether Judge Garland will actually do what’s necessary. If not, he can expect some “aggressive pushback” from those of us who are fed up with the “EOIR Clown Show” 🤡🦹🏿‍♂️☠️ and its daily mockery of American justice!

🇺🇸🗽⚖️👨🏻‍⚖️🧑🏽‍⚖️👩‍⚖️Due Process Forever!

PWS

02-18-21

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

UPDATE: Here’s the text of the bill:

2021.02.18 US Citizenship Act Bill Text – SIGNED

PWS

02-18-21

🇺🇸😎BIDEN MOVES QUICKLY TO TAKE CONTROL OF USG — Hacks Out, Pros In @ EOIR & Other Key Agencies — Judge Tabaddor’s Appointment @ USCIS Sends Positive Message For Due Process, Good Government, & That “Courage Counts!”🦸🏻

Biden Team Rushes to Take Over Government, and Oust Trump Loyalists

https://www.nytimes.com/2021/01/27/us/politics/biden-government.html?referringSource=articleShare

David E. Sanger reports for the NYT:

WASHINGTON — When President Biden swore in a batch of recruits for his new administration in a teleconferenced ceremony late last week, it looked like the country’s biggest Zoom call. In fact, Mr. Biden was installing roughly 1,000 high-level officials in about a quarter of all of the available political appointee jobs in the federal government.

At the same time, a far less visible transition was taking place: the quiet dismissal of holdovers from the Trump administration, who have been asked to clean out their offices immediately, whatever the eventual legal consequences.

If there has been a single defining feature of the first week of the Biden administration, it has been the blistering pace at which the new president has put his mark on what President Donald J. Trump dismissed as the hostile “Deep State” and tried so hard to dismantle.

From the Pentagon, where 20 senior officials were ready to move in days before the Senate confirmed Lloyd J. Austin III as defense secretary, to the Voice of America, where the Trump-appointed leadership was replaced hours after the inauguration, the Biden team arrived in Washington not only with plans for each department and agency, but the spreadsheets detailing who would carry them out.

A replacement was even in the works for the president’s doctor: Dr. Sean P. Conley, who admitted to providing a rosy, no-big-deal description of Mr. Trump’s Covid-19 symptoms last year, was told to pack his medical kit. While all presidents eventually bring in their own doctor, Mr. Biden wasted no time bringing back a retired Army colonel, Dr. Kevin O’Connor, who was his doctor when he was vice president.

Mr. Biden had named nearly all of his cabinet secretaries and their immediate deputies before he took office last Wednesday, most of them familiar faces from the Obama administration. But the president’s real grasp on the levers of power has come several layers down.

. . . .

Ashley Tabaddor, a constant critic of the Trump administration as the former head of the union that represents immigration judges, will take over as chief counsel at U.S. Citizenship and Immigration Services, the federal legal immigration agency.

At the Justice Department — where morale was largely decimated and Biden administration officials are eager to begin reversing Trump policies on civil rights, immigration and police oversight — all of the department’s top incoming acting department heads are alumni, some of whom worked under multiple administrations.

Until Judge Merrick B. Garland is confirmed as attorney general, Monty Wilkinson, a longtime career employee who worked closely with Eric H. Holder Jr. when he was attorney general, is serving in an acting capacity.

The acting deputy attorney general is John P. Carlin, who ran the national security division of the Justice Department during the Obama administration. He is holding the office only until Lisa Monaco, who has worked closely with Mr. Carlin over the years, can be confirmed as deputy attorney general. She served as homeland security adviser under Mr. Obama and, during the Trump years, she and Mr. Carlin ran a group studying the hardest issues in cyberpolicy.

Much as the politicization of the Justice Department angered Mr. Trump’s critics, the neutering of the Environmental Protection Agency prompted outrage from progressives, and it is probably no surprise that the agency is already in the throes of transformation.

. . . .

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

Read the complete article at the link.

Trump spent his first week in office spouting lies about the size of his inauguration crowd and launching a White Nationalist assault on Muslim refugees. Biden came in with a detailed plan for governing America and is putting it into effect on multiple fronts notwithstanding the crises and absolute mess left behind by the defeated kakistocracy!

The Biden-Harris plan reflects three truths:

Government is a powerful force for the common good;
Most governing takes place at the “retail level;” and
Competence, honesty, and courage count.

The Tabaddor appointment is a powerful signal to civil servants who stand up for their rights and the rights of others. Judge Tabaddor undoubtedly is one of the most talented, dynamic, and capable leaders at any level of the Federal Judiciary. But, that didn’t protect her from the DOJ/EOIR bureaucracy.

Judge Tabaddor was bullied by EOIR management during the Obama Administration because she had been recognized as an outstanding Iranian American. She sued her tormentors and won a $200,000 settlement.https://www.npr.org/sections/thetwo-way/2015/11/03/454394225/government-settles-lawsuit-filed-by-iranian-american-judge

During the Trump regime, she led the effort of the National Association of Immigration Judges (“NAIJ”) to expose bias and political interference with judicial functions, gross mismanagement, disregard for due process, and suppression of First Amendment free speech by the DOJ/EOIR kakistocracy.

“Billy the Bigot” Barr & his toady McHenry punished the NAIJ by filing to “decertify” the union — a move to silence Judge Tabaddor and her her colleagues and deflect Congressional attention from the ongoing chaos and dysfunction the Trump DOJ had created in the Immigration Courts.

Apparently, somebody on the Biden Team was paying attention to this travesty, recognized the grotesque abuses going on at the EOIR Clown Show🤡, and the courage and leadership shown by Judge Tabaddor in the battle for integrity and “good government.”

So far, so good. Looks like the “EOIR Clown Show” 🤡 is finally “going to go” and be replaced with real judges and pros in judicial administration who will refashion it into a real, functioning, due-process-oriented, model court system that will compliment the legislative initiative to create an independent Article I U.S. Immigration Court of which we all can be proud.

“Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all!” Still the “right vision.” And with the right judicial leadership and judges who are experts in human rights, immigration, and “applied due process” it can become a reality!

🇺🇸⚖️🗽Due Process Forever!

PWS

01-28-21

🇺🇸MORE GOOD NEWS FOR AMERICA — One Of America’s “Best & Brightest” Judicial Leaders, 🧑🏽‍⚖️ Judge A. Ashley Tabaddor, President of The NAIJ & Tireless, Courageous, Advocate For Due Process ⚖️ Reportedly Will Become Top Policy Official At USCIS — Just The Person To Bring Legal Excellence, Best Practices, & Public Service Back To Rudderless, Kakistocracy-Ruined Agency That Betrayed America & Its Mission!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Tal Kopan of the SF Chronicle confirmed on Twitter that Judge A. Ashley Tabaddor will be leaving the Immigration Court and NAIJ for a policy position at USCIS. Sources say that she will become the Chief Counsel @ USCIS.

Judge Tabaddor is a friend, colleague, and one of the brightest shining stars 🌟 of the Federal Judiciary at any level. She led the NAIJ during the scurrilous attack on judicial independence and First Amendment rights carried out by the Trump kakistocracy and a corrupt, politically-motivated FLRA. She is an example of the dynamic, fearless, due-process leadership that has been sadly lacking in the Federal Judiciary as a whole, particularly during the past four years of the Trump regime’s unrelenting attack on our democracy.

Judge Tabaddor’s appointment is also a recognition of those who fought and resisted the EOIR kakistocracy as opposed to those who “went along to get along” with the parade of due process abuses and White Nationalist scheming that went on at EOIR under the regime and the horrible AGs and White Nationalist leadership at DOJ.

Judge Tabaddor will be just the ticket for shaking up USCIS and getting it back on track to serving the public, rather than carrying out a perverted White Nationalist bogus enforcement mission that not only bankrupted a once self-supporting agency but was an embarrassment to American public service and democratic government.

Congrats again, Judge Tabaddor! You are a true hero of American justice!🦸🏻⚖️🇺🇸🗽

KATY MURDZA 👩‍🏫“DE-GOBBLEDYGOOKS” EOIR CLOWN SHOW’S 🤡 PARTING SHOTS AT DUE PROCESS, RATIONAL COURT MANAGEMENT 🤮 — “Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.”

https://immigrationimpact.com/2020/12/03/eoir-rules-immigration-judges/#.X8qg9NhKhPY

Katy writes at Immigration Impact:

The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.

While the rules are not likely to be finalized by the time President Biden takes office, they demonstrate the Trump administration’s continued commitment to dismantling the immigration system.

The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.

The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.

EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.

Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.

The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.

Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.

The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.

For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.

Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.

EOIR states that restricting continuances is necessary to decrease the over 1.2 million cases pending in the immigration court backlog. However, the answer to the backlog is not to throw due process out the window.

Eliminating docket-management tools could worsen the backlog.

Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.

The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.

Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.

FILED UNDER: EOIR, immigration judges

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

Thanks Katy!

And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.

Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.

As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!

Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:

Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!

The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.

Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”

While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!

It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!

Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!

EOIR clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever!

PWS

12-06-20

An End to a Highly Controversial Quota System Imposed on Immigration Judges

This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”

🇺🇸Due Process Forever!

Related posts:

From WashPost:

Here’s the NAWJ’s full statement:

🇺🇸⚖️🗽Due Process Forever! Lack of expertise and moral courage has consequences!

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🇺🇸Due Process Forever!

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FULL DISCLOSURE: I am a retired member of the NAIJ!

🇺🇸Due Process Forever!

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FULL DISCLOSURE: I am a retired member of the NAIJ.

🇺🇸Due Process Forever!

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FULL DISCLOSURE: I am a retired member of the NAIJ.

🇺🇸Due Process Forever!

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FULL DISCLOSURE: I am a retired member of the NAIJ.

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

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Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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🇺🇸🗽⚖️Due Process Forever!

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White House announces sweeping immigration bill

🇺🇸🗽⚖️👨🏻‍⚖️🧑🏽‍⚖️👩‍⚖️Due Process Forever!

UPDATE: Here’s the text of the bill:

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🇺🇸⚖️🗽Due Process Forever!

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Congrats again, Judge Tabaddor! You are a true hero of American justice!🦸🏻⚖️🇺🇸🗽

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Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!

Due Process Forever!

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