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⚖️👩🏽‍⚖️👨🏻‍⚖️🧑‍⚖️ GARLAND APPOINTS 38 NEW U.S. IMMIGRATION JUDGES — More Prosecutors Than Private/NGO Practitioners; Approximately 70% Have Immigration Experience, By My “Quick & Dirty” Analysis!

FROM EOIR:

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsInVybCI6Imh0dHBzOi8vd3d3Lmp1c3RpY2UuZ292L2VvaXIvcGFnZS9maWxlLzE1OTI4NjYvZG93bmxvYWQiLCJidWxsZXRpbl9pZCI6IjIwMjMwODExLjgxMDE3NjIxIn0.ULrCqsgnirmemmGnS6ggXxbrT28kWH28Ezp2rQdHI4E/s/842922301/br/224124905134-l

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov

www.justice.gov/eoir @DOJ_EOIR

Aug. 11, 2023

EOIR Announces 38 New Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of 38 immigration judges to courts in California, Florida, Georgia, Illinois, Louisiana, Maryland, Massachusetts, Michigan, New Jersey, Ohio, Texas, Utah, and Virginia.

Attorney General Merrick Garland administered the oath of office and delivered remarks during the investiture, which was held today at the Department of Justice’s Great Hall in Washington, D.C.

EOIR continues to expand its immigration judge corps and welcomes qualified candidates from all backgrounds to join the agency. In addition to making a difference through service to our Nation, immigration judges join a diverse and inclusive workforce. Individuals interested in these critical positions are invited to sign up for job alerts that are sent when new opportunities become available.

Immigration judges are career employees, and each one is selected after a thorough and competitive application process. Today, Attorney General Merrick B. Garland officially appointed the following individuals as immigration judges: Sameer Ahmed, Adrian N. Armstrong, Jody L. Barilla, Elanie J. Cintron, Ghunise L. Coaxum, Benjamin Davey, Alberto A. De Puy, Jennifer A. Durkin, Carla I. Espinoza, Zahra Jivani Fenelon, David A. Gardey, Cynthia D. Goodman, Jonathan H. Hall, Tanya L. Hasbrouck, Jacquelyn Jo Joyce, Jennifer M. Kerby, Heather A. Libeu, Kyra S. Lilien, Brandi M. Lohr, Nicole C. Lomartire, Robert K. Lundberg, Margaret R. MacGregor, Kimberly Charon McBride, Justin R. McEwen, Christopher D. McNary, Jane Chace Miller, George R. Najjar, Douglas D. Nelson, Tania T. Nemer, Monica Barba Neumann, Colleen O’Donnell, George D. Pappas, Irma Pérez, Daniel I. Smulow, Elizabeth I.Treacy, Adrián F. Paredes Velasco, ShaSha Xu, and Juliana Zach.

Biographical information for the newly appointed immigration judges follows:

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Sameer Ahmed, Immigration Judge, Boston Immigration Court

Sameer Ahmed was appointed as an immigration judge to begin hearing cases in August 2023. Judge Ahmed earned a Bachelor of Arts in 2003 from Stanford University, a Master of Science in 2005 from the University of London, a Master of Studies in 2007 from the University of Oxford, and a Juris Doctor in 2009 from Yale Law School. From 2020 to 2023, he was a clinical instructor at the Immigration and Refugee Clinical Program at Harvard Law School. From 2019 to 2020, he was an assistant teaching professor at Northeastern University School of Law. From 2017 to 2019, he was an attorney at the American Civil Liberties Union of Southern California. From 2015 to 2017, and previously from 2013 to 2014, he was an attorney at Wilmer Cutler Pickering Hale and Dorr LLP in Boston. From 2014 to 2015, he served as a law clerk for the Honorable Kermit V. Lipez, U.S. Court of Appeals for the First Circuit. From 2011 to 2013, he served as a law clerk for the Honorable Patti B. Saris, U.S. District Court for the District of Massachusetts. From 2009 to 2011, he was a Skadden fellow at the Asian American Legal Defense and Education Fund in New York, New York. Judge Ahmed is a member of the Massachusetts Bar and the New York State Bar.

Adrian N. Armstrong, Immigration Judge, Elizabeth Immigration Court

Adrian N. Armstrong was appointed as an immigration judge to begin hearing cases in August 2023. Judge Armstrong earned a Bachelor of Science in 1984 from Longwood University and a Juris Doctor in 1990 from Elisabeth Haub School of Law at Pace University. From 2020 to 2023, he served as a judge at the New York State Court of Claims and was designated an acting Supreme Court judge in Bronx County. From 2015 to 2020, he served as a judge at the Mount Vernon City Court and was designated as an acting Family Court judge in Westchester County. From 1993 to 2015, he served as a law clerk at the New York State Office of Court Administration. From 1990 to 1993, he served as assistant district attorney at the Bronx County District Attorney’s Office. Judge Armstrong is a member of the New York State Bar.

Jody L. Barilla, Immigration Judge, Chicago Immigration Court

Jody L. Barilla was appointed as an immigration judge to begin hearing cases in August 2023. Judge Barilla earned a Bachelor of Arts in 1988 from the Ohio State University and a Juris Doctor in 1992 from Cleveland Marshall College of Law. From 2021 to 2023, she served as the court administrator for the Chicago Immigration Court. From 1997 to 2021, she served as a magistrate at the Lorain County Domestic Relations Court in Elyria, Ohio. During this time, from 2013 to 2021, she also served as the court administrator for the Lorain County Domestic Relations Court. From 1992 to 1997, she worked as an associate attorney with the law firm of Smith & Smith Attorneys. Judge Barilla is a member of the Ohio State Bar.

Elanie J. Cintron, Immigration Judge, San Francisco Immigration Court

Elanie J. Cintron was appointed as an immigration judge to begin hearing cases in August 2023. Judge Cintron earned a Bachelor of Science in 2005 from the University of North Carolina at Chapel Hill and a Juris Doctorate in 2013 from the Maurice A. Deane School of Law at Hofstra University. From 2017 to 2023, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and

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Customs Enforcement, Department of Homeland Security, in Denver. From 2014 to 2017, she was an associate attorney with Lichter Immigration in Denver. During this time, she provided pro bono representation through the American Immigration Lawyers Association (AILA) Artesia Pro Bono Project and the AILA CARA Pro Bono Project. Judge Cintron is a member of the Minnesota State Bar.

Ghunise L. Coaxum, Immigration Judge, Atlanta – W. Peachtree Street Immigration Court

Ghunise L. Coaxum was appointed as an immigration judge to begin hearing cases in August 2023. Judge Coaxum earned a Bachelor of Science in 1991 from the University of Florida and a Juris Doctor in 1995 from the University of Florida College of Law (now known as the Frederic G. Levin College of Law). From 2000 to 2023, she was bar counsel at the Florida Bar in Orlando, Florida. From 1998 to 2000, she was a senior attorney with the Florida Department of Business and Professional Regulation, Division of Real Estate, in Orlando. From 1996 to 1998, she was an assistant public defender with the Office of the Public Defender, 9th Judicial Circuit in Orlando. Judge Coaxum is a member of the Florida Bar.

Benjamin J. Davey, Immigration Judge, Detroit Immigration Court

Benjamin J. Davey was appointed as an immigration judge to begin hearing cases in August 2023. Judge Davey earned a Bachelor of Fine Arts in 2002 from Otterbein University and a Juris Doctorate in 2006 from Cleveland State University College of Law. From 2013 to 2023, he served as a magistrate in the Lorain County Court of Common Pleas, Domestic Relations and Juvenile Division, in Elyria, Ohio. During this time, from 2022 to 2023, he provided pro bono legal services through Catholic Charities, assisting individuals seeking affirmative asylum before U.S. Citizenship and Immigration Services, Department of Homeland Security. From 2007 to 2013, he served as an assistant prosecuting attorney for Lorain County, Ohio. During this time, from 2011 to 2013, Judge Davey also served as counsel for the Lorain County General Health District. Judge Davey is a member of the Ohio State Bar.

Alberto A. De Puy, Immigration Judge, New Orleans Immigration Court

Alberto A. De Puy was appointed as an immigration judge to begin hearing cases in August 2023. Judge De Puy earned a Bachelor of Arts in 2002 from Louisiana State University, and a Juris Doctor in 2006 from Tulane University Law School. From 2021 to 2023, he served as an administrative law judge for the Louisiana Division of Administrative Law. From 2014 to 2021, he served as an assistant attorney general at the Louisiana Department of Justice, Attorney General’s Office. From 2011 to 2014, he served as a policy advisor at the Louisiana Office of the Governor. From 2007 to 2011, he served as an assistant district attorney at the Calcasieu Parish District Attorney’s Office. From 2006 to 2007, he served as an assistant district attorney at the Orleans Parish District Attorney’s Office. In 2005, he completed a legal internship at the U.S. Mission to the Organization of American States, Department of State. Judge De Puy is a member of the Louisiana State Bar.

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Jennifer A. Durkin, Immigration Judge, New York – Varick Immigration Court

Jennifer A. Durkin was appointed as an immigration judge to begin hearing cases in August 2023. Judge Durkin earned a Bachelor of Arts in 1992 from the University of Buffalo and a Juris Doctor in 1999 from the University of California Los Angeles School of Law. She has practiced immigration law her entire career. From 2022 to 2023, she was Deputy Attorney-in-Charge of the Immigration Law Unit at the Legal Aid Society in New York. From 2020 to 2022, she was a supervising attorney at the Legal Aid Society on the New York Immigrant Family Unity Project, which represents detained immigrant New Yorkers facing removal. From 2010 to 2020, she was in private practice at Durkin & Puri in New York where she represented noncitizens before EOIR; U.S. Citizenship and Immigration Services, Department of Homeland Security, and the Department of State. From 2005 to 2010, she was a partner at Yee, Durkin & Puri in New York (known as Yee & Durkin until 2008). From 2003 to 2005, she was an associate at Spar & Bernstein in New York. From 1999 to 2003, she was an associate at the Law Office of Roni P. Deutsch in Encino, California. Judge Durkin is a member of the State Bar of California and the District of Columbia Bar.

Carla I. Espinoza, Immigration Judge, Chicago Immigration Court

Carla I. Espinoza was appointed as an immigration judge to begin hearing cases in August 2023. Judge Espinoza earned a Bachelor of Science in 2009 from the University of Texas at El Paso, and a Juris Doctor and a Certificate in International and Comparative Law in 2012 from DePaul University College of Law. From 2020 to 2023, she was the managing partner, and from 2013 to 2020, she was supervising and managing attorney, for Chicago Immigration Advocates Law Offices. From 2012 to 2013, she served as a supervising attorney with Solis Law Firm PC in Chicago. Judge Espinoza is a member of the Illinois State Bar.

Zahra Jivani Fenelon, Immigration Judge, Houston – Smith Street Immigration Court

Zahra Jivani Fenelon was appointed as an immigration judge to begin hearing cases in August 2023. Judge Jivani Fenelon earned a Bachelor of Science in 2003 from Houston Baptist University and a Juris Doctorate in 2006 from South Texas College of Law. From 2015 to 2023, she served as an assistant U.S. attorney at the U.S. Attorney’s Office, Southern District of Texas, where she prosecuted crimes of child exploitation, human trafficking, cybercrime, and white-collar fraud. From 2006 to 2015, she was an assistant district attorney at the Fort Bend County District Attorney’s Office, where she prosecuted felony crimes. Judge Jivani Fenelon is a member of the State Bar of Texas.

David A. Gardey, Immigration Judge, Annandale Immigration Court

David A. Gardey was appointed as an immigration judge to begin hearing cases in August 2023. Judge Gardey earned a Bachelor of Arts in 1990 from Yale University and a Juris Doctor in 1993 from the Notre Dame Law School. From 2005 to 2023, he served as an assistant U.S. attorney (AUSA) with the U.S. Attorney’s Office for the Eastern District of Michigan in Detroit, in various capacities, including: special counsel to the U.S. Attorney, chief of the Public Corruption and Civil Rights Unit, and chief of the Drug Task Force Unit. From 2001 to 2005, he served as an AUSA with the U.S. Attorney’s

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Office for the Southern District of Florida in Miami. From 1997 to 2001, he was a supervisory attorney for Butzel Long PC in Detroit, and from 1995 to 1997, he was an associate with Cravath, Swaine & Moore LLP in New York. From 1993 to 1995, he served as a judicial law clerk for the Honorable Paul V. Gadola of the U.S. District Court for the Eastern District of Michigan. Judge Gardey is a member of the State Bar of Michigan and the New York State Bar.

Cynthia D. Goodman, Immigration Judge, Fort Worth Immigration Adjudication Center

Cynthia D. Goodman was appointed as an immigration judge to begin hearing cases in August 2023. Judge Goodman earned a Bachelor of Arts in 2003 from the University of North Texas and a Juris Doctor in 2006 from Texas Tech University School of Law. From 2016 to 2023, she served as a pro se staff attorney for the U.S. Court for the Northern District of Texas. From 2013 to 2016, she was a private practice immigration and criminal defense attorney with Stockard, Johnston, Brown LLC in Amarillo, Texas. From 2008 to 2013, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security, in Dallas. During this time, from 2011 to 2013, Judge Goodman served a detail as a special assistant U.S. attorney for the U.S. Attorney’s Office in Dallas. From 2006 to 2008, she served as an assistant county attorney for Potter County, Texas. Judge Goodman is a member of the State Bar of Texas.

Jonathan H. Hall, Immigration Judge, Boston Immigration Court

Jonathan H. Hall was appointed as an immigration judge to begin hearing cases in August 2023. Judge Hall earned a Bachelor of Arts in 2004 from The University of Rhode Island, a Juris Doctor in 2011 from Suffolk University Law School, and a Master of Laws in 2013 from American University Washington College of Law. From 2021 to 2023, he served as an administrative law judge at the District of Columbia Office of Administrative Hearings. From 2016 to 2021, he served as assistant general counsel at the Metropolitan Police Department of the District of Columbia. From 2013 to 2016, he served as assistant attorney general at the Office of the Attorney General for the District of Columbia. Judge Hall is a member of the District of Columbia Bar.

Tanya L. Hasbrouck, Immigration Judge, LaSalle Immigration Court.

Tanya L. Hasbrouck was appointed as an immigration judge to begin hearing cases in August 2023. Judge Hasbrouck earned a Bachelor of Science in 1985 from Montana State University and a Juris Doctor in 1990 from the University of Mississippi School of Law. In 2023, Judge Hasbrouck was an attorney with the Hasbrouck Law Firm in Pascagoula, Mississippi. From 2019 to 2022, she served as a chancery court judge for the 16th Judicial District of Mississippi. From 2012 to 2018, she was with the Hasbrouck Law Firm in Pascagoula, Mississippi. During this time, she also served from 2017 to 2018 as the municipal public defender for the city of Gautier; from 2016 to 2018 as the municipal public defender for the city of Pascagoula; and from 2013 to 2018 as the board attorney for West Jackson County Utility District. From 2004 to 2012, she served as an assistant district attorney for the 19th Judicial District of Mississippi. From 2000 to 2003, she was an associate attorney for Cumbest, Cumbest, Hunter & McCormick in

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Pascagoula. From 1996 to 1999, she served as an assistant district attorney for the 19th Judicial District of Mississippi. From 1994 to 1996, she served as an assistant public defender for Jackson County, Mississippi. From 1991 to 1994, she served as an associate attorney with Bryant, Colingo, Williams & Clark in Pascagoula. From 1990 to 1991, she served as a judicial law clerk for the Mississippi Supreme Court. Judge Hasbrouck is a member of the Mississippi Bar.

Jacquelyn Jo Joyce, Immigration Judge, Houston – South Gessner Immigration Court

Jacquelyn Jo Joyce was appointed as an immigration judge to begin hearing cases in August 2023. Judge Joyce earned a Bachelor of Arts in 2007 from the Florida State University and a Juris Doctor in 2010 from the University of Florida Levin College of Law. From 2018 to 2023, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security in Pearsall, Texas. From 2015 to 2018, she served as assistant public defender in the Third Judicial Circuit of Florida in Lake City, Florida. From 2010 to 2015, she served as a trial court law clerk for the Third Judicial Circuit of Florida in Live Oak, Florida. Judge Joyce is a member of the Florida Bar.

Jennifer M. Kerby, Immigration Judge, Falls Church Immigration Adjudication Center

Jennifer M. Kerby was appointed as an immigration judge to begin hearing cases in August 2023. Judge Kerby earned a Bachelor of Arts in 1991 from the University of Virginia, a Master of Education in 1995 from the University of Virginia, and a Juris Doctor in 2002 from Georgia State University College of Law. From 2005 to 2023, she served as an attorney advisor at the Board of Immigration Appeals, Executive Office for Immigration Review, U.S. Department of Justice. From 2002 to 2004, she served a two- year appointment as a staff attorney/law clerk with the U.S. Court of Appeals for the Eleventh Circuit. Judge Kerby is a member of the State Bar of Georgia and the Virginia State Bar.

Heather A. Libeu, Immigration Judge, Santa Ana Immigration Court

Heather A. Libeu was appointed as an immigration judge to begin hearing cases in August 2023. Judge Libeu earned a Bachelor of Arts in 2004 from Chapman University and a Juris Doctor in 2007 from the University of Southern California Gould School of Law. From 2021 to 2023, she served an assistant chief counsel, Office of the Principal Legal Advisor (OPLA), U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Santa Ana, California. From 2010 to 2021, she served an assistant chief counsel, OPLA, in Los Angeles. From 2009 to 2010, she served as an associate legal advisor, and from 2007 to 2009, she served as Presidential management fellow, OPLA, in Washington, D.C. Judge Libeu is a member of the State Bar of California.

Kyra S. Lilien, Immigration Judge, San Francisco Immigration Court

Kyra S. Lilien was appointed as an immigration judge to begin hearing cases in August 2023. Judge Lilien earned a Bachelor of Arts in 1996 from Smith College and a Juris

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Doctor in 2006 from the University of California, Berkeley School of Law. From 2021 to 2023, she was the director of immigration legal services at Jewish Family & Community Services – East Bay in Concord, California. From 2016 to 2021, she served as staff attorney at the U.S. Court of Appeals for the Ninth Circuit. From 2013 to 2016, she served as asylum officer and interim training officer at the San Francisco Asylum Office, U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security. From 2010 to 2013, she was the immigration program director at Centro Legal de la Raza in Oakland, California, where she represented noncitizens before EOIR and USCIS. From 2007 to 2010, she was an associate attorney at Kirkland & Ellis LLP in San Francisco, where she handled immigration cases on a pro bono basis. From 2006 to 2007, she was a research fellow on behalf of the University of California, Berkeley, War Crimes Studies Center at the International Criminal Court in The Hague. Judge Lilien is a member of the State Bar of California.

Brandi M. Lohr, Immigration Judge, Buffalo Immigration Court

Brandi M. Lohr was appointed as an immigration judge to begin hearing cases in August 2023. Judge Lohr earned a Bachelor of Arts in 2002 from the State University of New York at Buffalo and a Juris Doctor in 2007 from Duquesne University. From 2010 to 2023, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security (DHS), in Batavia and Buffalo, New York. From 2007 to 2010, she served as a management and program analyst and presidential management fellow, U.S. Citizenship and Immigration Services, DHS, in Buffalo and Washington, D.C. Judge Lohr is a member of the Pennsylvania Bar.

Nicole C. Lomartire, Immigration Judge, Annandale Immigration Court

Nicole C. Lomartire was appointed as an immigration judge to begin hearing cases in August 2023. Judge Lomartire earned a Bachelor of Arts in 1995 from Hofstra University and a Juris Doctor in 2003 from the University of Maryland School of Law. From 2017 to 2023, she served as a deputy chief counsel, and from 2015 to 2017, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security, in Baltimore. From 2004 to 2015, she served as an assistant state’s attorney for the Office of the State’s Attorney for Baltimore City. Judge Lomartire is a member of the Maryland State Bar.

Robert K. Lundberg, Immigration Judge, Annandale Immigration Court

Robert K. Lundberg was appointed as an immigration judge to begin hearing cases in August 2023. Judge Lundberg earned a Bachelor of Arts in 2010 from Arizona State University and a Juris Doctor in 2012 from the Sandra Day O’Connor College of Law. From 2021 to 2023, he served as a trial attorney with the Appellate Court Section, Office of Immigration Litigation, Civil Division, U.S. Department of Justice. From 2018 to 2021, he served as an associate counsel with U.S. Citizenship and Immigration Services, Department of Homeland Security (DHS), in Washington, D.C. From 2014 to 2018, he served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, DHS, in Florence, Arizona. From 2013 to

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2014, he practiced civil litigation with the Law Firm of Bert Moll in Chandler, Arizona. Judge Lundberg is a member of the State Bar of Arizona.

Margaret R. MacGregor, Immigration Judge, Port Isabel Immigration Court

Margaret R. MacGregor was appointed as an immigration judge to begin hearing cases in August 2023. Judge MacGregor earned a Bachelor of Arts in 1996 from Georgetown University and a Juris Doctorate in 1999 from the University of Arizona College of

Law. From 2009 to 2023, she was an attorney advisor at the Board of Immigration Appeals, Executive Office for Immigration Review, U.S. Department of Justice. From 2007 to 2009, she was an associate with Berry, Appleman & Leiden, and from 2005 to 2007 with Reina & Associates, both in Dallas. From 2003 to 2005, she was a deputy attorney general representing the Division of Youth and Family Services for the State of New Jersey. From 2002 to 2003, she clerked for the Honorable Vincent J. Grasso, presiding judge of the Family Part, in Ocean County, New Jersey. From 2000 to 2002, she was the senior editor of the Products Liability Law Reporter for the American Association for Justice in Washington, D.C. From 1999 to 2000, she was a staff attorney at the Center for Auto Safety in Washington, D.C. Judge MacGregor is a member of the New Jersey Bar.

Kimberly Charon McBride, Immigration Judge, Annandale Immigration Court

Kimberly Charon McBride was appointed as an immigration judge to begin hearing cases in August 2023. Judge McBride earned a Bachelor of Science in 1990 from the University of Maryland at College Park and a Juris Doctor in 1995 from the University of Baltimore School of Law. From 2010 to 2023, she served as a family magistrate for the Circuit Court for Baltimore City. During this time, she presided over juvenile delinquency and child welfare cases involving complex issues of child abuse and neglect, substance use disorders, domestic and family violence, and mental health. From 2005 to 2010, and previously from 1996 to 2000, she was a solo practitioner, serving as a panel attorney for the Office of the Public Defender (OPD) in Baltimore City, where she represented parents in child welfare and juveniles in delinquency matters. During these years, she also provided representation to parents in divorce, child custody, guardianship, and child support matters. She also provided representation in civil and criminal matters in the Circuit and District Courts of Baltimore City and surrounding counties, including, but not limited to, family law, real estate, employment, personal injury, traffic, workers’ compensation, and bankruptcy. From 2000 to 2005, she served as a senior associate at The Miracle Makers Inc. in Brooklyn, New York. Judge McBride is a member of the Maryland Bar.

Justin R. McEwen, Immigration Judge, Boston Immigration Court

Justin R. McEwen was appointed as an immigration judge to begin hearing cases in August 2023. Judge McEwen earned a Bachelor of Arts in 1999 from Southern Utah University, a Juris Doctor in 2002 from Southern Methodist University Dedman School of Law, and a Master of Laws in Trial Advocacy in 2013 from California Western School of Law. From 2003 to 2023, Judge McEwen served as a Judge Advocate in the U.S. Navy, which culminated in his service as the Circuit Judge for Europe, Africa, and Southwest Asia from 2019 to 2023. During his time as a Judge Advocate, he served as

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an attorney and judge in the following locations: Washington Navy Yard, Washington D.C.; Fleet Activities Yokosuka, Yokosuka, Japan; Central Criminal Court of Iraq, Bagdad, Iraq; Naval Air Station, Sigonella, Sicily, Italy; Naval Station Newport, Newport, Rhode Island; Naval Station Mayport, Mayport, Florida; and Naval Support Activities, Naples, Naples, Italy. Prior to entering the U.S. Navy in 2002, Judge McEwen clerked for a year at the Texas Sixth Court of Appeals in Texarkana, Texas. Judge McEwen is a member of the State Bar of Texas.

Christopher D. McNary, Immigration Judge, Santa Ana Immigration Court

Christopher D. McNary was appointed as an immigration judge to begin hearing cases in August 2023. Judge McNary earned a Bachelor of Arts in 2008 from the University of San Francisco and a Juris Doctor in 2011 from the University of San Francisco School of Law. From 2018 to 2023, he served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security (DHS), in Los Angeles. From 2017 to 2018, he served as a senior asylum officer, and from 2013 to 2017, he served as an asylum officer, with U.S. Citizenship and Immigration Services, DHS, in San Francisco. From 2011 to 2013, he served as a staff attorney with East Bay Sanctuary Covenant in Berkeley, California. Judge McNary is a member of the State Bar of California.

Jane Chace Miller, Immigration Judge, Laredo Immigration Court

Jane Chace Miller was appointed as an immigration judge to begin hearing cases in August 2023. Judge Miller earned a Bachelor of Arts in 1984 from Chestnut Hill College and a Juris Doctor in 1987 from Dickinson School of Law. From 2016 to 2023, she served as a Maryland parole commissioner. From 2003 to 2016, she was in private practice, specializing in family law issues and criminal matters. From 2001 to 2016, Judge Miller served as the trust clerk for the Circuit Court for Queen Anne’s County, Centreville, Maryland. From 1998 to 2003, she was in private practice on Maryland’s Eastern Shore, focusing on criminal cases, family law cases, and civil litigation. From 1988 to1997, Judge Miller served as an assistant State’s attorney in Wicomico County, Maryland. Judge Miller is a member of the Maryland State Bar.

George R. Najjar, Immigration Judge, San Diego Immigration Court

George R. Najjar was appointed as an immigration judge to begin hearing cases in August 2023. Judge Najjar earned a Bachelor of Arts in 1983 from the University of California, Berkeley, and a Juris Doctor in 1990 from California Western School of Law. From 1993 to 2023, he was in private practice in San Diego, California. During this time, from 2000 to 2023, he served as a judge pro tempore in the Superior Court of California, County of San Diego, and from 1997 to 2023, he served as an arbitrator for the Financial Industry Regulatory Authority Inc. Judge Najjar is a member of the State Bar of California.

Douglas D. Nelson, Immigration Judge, Salt Lake City Immigration Court

Douglas D. Nelson was appointed as an immigration judge to begin hearing cases in August 2023. Judge Nelson earned his Bachelor of Arts in 1991 from Brigham Young University and a Juris Doctor in 1994 from the University of San Diego School of Law.

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From 1995 to 2023, he worked as an immigration attorney in private practice for Alejandro O. Campillo APLC and the Law Office of Douglas D. Nelson. During this time, from 2002 to 2004, he served as chair of the Immigration Section for the San Diego County Bar, and from 1996 to 2021, he was liaison between the San Diego chapter of the American Immigration Lawyers Association and numerous Federal immigration agencies. From 1994 to 1995, he was a judicial law clerk at the San Diego Immigration Court, entering on duty through the Attorney General’s Honors Program. Judge Nelson is a member of the State Bar of California.

Tania T. Nemer, Immigration Judge, Cleveland Immigration Court

Tania T. Nemer was appointed as an immigration judge to begin hearing cases in August 2023. Judge Nemer earned a Bachelor of Arts in 2001 from John Carroll University and a Juris Doctor in 2006 from Western Michigan University Thomas M. Cooley Law School. In 2023, she was appointed as a magistrate of the Summit County, Ohio Probate Court where she presided over cases involving guardianships, civil commitments, and estates. From 2020 to 2023, she served as the community outreach prosecutor and assistant prosecutor for the Summit County Prosecutor’s Office. In 2019, she was appointed as a magistrate of the Akron Municipal Court. She also served as the managing immigration attorney at the International Institute of Akron. From 2014 to 2019, she was the senior immigration attorney for Catholic Charities Diocese of Cleveland, Office of Migration and Refugee Services, and she was the lead attorney representing mentally incompetent individuals through the National Qualified Representative Program. From 2008 to 2014, she was of counsel for McGinty, Hilow & Spellacy Co LPA, practicing criminal and immigration law and representing clients before municipal and county courts as well as before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. Judge Nemer is a member of the Ohio State Bar.

Monica Barba Neumann, Immigration Judge, Miami Immigration Court

Monica Barba Neuman was appointed as an immigration judge to begin hearing cases in August 2023. Judge Neumann earned a Bachelor of Science in 2004 from the University of Florida and a Juris Doctor in 2008 from Florida International University College of Law. From 2016 to 2023, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security (DHS), in Miami. From 2015 to 2016, she served as an asylum officer, U.S. Citizenship and Immigration Services (USCIS), DHS, in Miami. She was in private practice at Monica Barba PA in Miami from 2009 to 2010 and at Grisel Ybarra PA in Miami from 2010 to 2015, representing cases before EOIR, USCIS, state criminal courts, and state family courts. Judge Neumann is a member of the Florida Bar.

Colleen O’Donnell, Immigration Judge, Laredo Immigration Court

Colleen O’Donnell was appointed as an immigration judge to begin hearing cases in August 2023. Judge O’Donnell earned a Bachelor of Arts in 2003 from Miami University (Ohio) and a Juris Doctor in 2006 from Case Western Reserve University School of Law. In 2023, she served as an attorney in the Public Utility Commission of Ohio’s Office of the Federal Energy Advocate. From 2013 to 2023, she served as a trial judge

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in Ohio’s Franklin County Common Pleas Court, General Division. From 2007 to 2013, she practiced with the law firm of Carpenter Lipps LLP in Columbus, Ohio. Previously, in 2007, she served as a judicial law clerk in the U.S. District Court for the Northern District of Ohio, and from 2006 to 2007, as an assistant attorney general in the Consumer Protection section of the Ohio Attorney General’s Office. Judge O’Donnell is a member of the Ohio State Bar.

George D. Pappas, Immigration Judge, Boston Immigration Court

George D. Pappas was appointed as an immigration Judge to begin hearing cases in August 2023. Judge Pappas earned a Bachelor of Science in 1982 from the London School of Economics and Political Science, University of London, a Bachelor of Laws in 1998 from the University of London), a Master of Laws in 2000 from Widener University School of Law, Widener University, and a Doctor of Philosophy in 2014 from Birkbeck School of Law, University of London. From 2003 to 2023, he was principal attorney at George D. Pappas Esq. PC, practicing immigration, family law, criminal law, and civil litigation. He also provided pro bono legal services to the U.S. Committee for Refugees and Immigrants (Washington, D.C.), Pair Project (Boston), Latin American Coalition (Charlotte, North Carolina), El Centro (Hendersonville, North Carolina), and True Ridge (Hendersonville, North Carolina). Judge Pappas is a member of the North Carolina State Bar and the Massachusetts Bar.

Irma Pérez, Immigration Judge, Santa Ana Immigration Court

Irma Pérez was appointed as an immigration judge to begin hearing cases in August 2023. Judge Pérez earned a Bachelor of Arts in 2004 from Georgetown University and a Juris Doctor in 2011 from the University of California Law San Francisco (formerly University of California Hastings College of the Law). From 2015 to 2023, she was in private practice at the Law Office of Irma Pérez PC in Pasadena, California, practicing before EOIR, the Department of Homeland Security (DHS), and the Department of State (DOS). From 2012 to 2015, she was an associate with Daniel Shanfield Immigration Defense PC in San Jose, California, representing noncitizens before EOIR, DHS and DOS. Judge Pérez is a member of the State Bar of California.

Daniel I. Smulow, Immigration Judge, Baltimore Immigration Court

Daniel I. Smulow was appointed as an immigration judge in August 2023. Judge Smulow earned a Bachelor of Arts in 1995 from Tufts University and a Juris Doctor in 1998 from Case Western Reserve University School of Law. From 2008 to 2023, he served as trial attorney and senior counsel for national security, Office of Immigration Litigation, Civil Division, U.S. Department of Justice. From 2006 to 2008, he served as an associate legal advisor, National Security Law Division, U.S. Immigration and Customs Enforcement, Department of Homeland Security. From 2004 to 2006, he served as an assistant attorney general in the Massachusetts Attorney General’s Office. From 1998 to 2004, he served as an assistant district attorney in Essex County, Massachusetts. During this time, from 2001 to 2004, he was a lecturer with Boston University School of Law. Judge Smulow is a member of the Massachusetts Bar.

Communications and Legislative Affairs Division

EOIR Announces 38 New Immigration Judges Page 12

Elizabeth I. Treacy, Immigration Judge, Chicago Immigration Court

Elizabeth I. Treacy was appointed as an immigration judge to begin hearing cases in August 2023. Judge Treacy earned her Bachelor of Arts in 2003 from the University of Wisconsin-Madison and a Juris Doctor in 2007 from the University of Georgia Law School. From 2019 to 2023, she served as an assistant U.S. attorney at the U.S. Attorney’s Office for the Northern District of Illinois. From 2010 to 2019, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security, in Chicago. From 2007 to 2010, she was practicing immigration law as an associate attorney at Fragomen, Del Rey, Bernsen & Loewy LLP. Judge Treacy is a member of the Illinois State Bar.

Adrián F. Paredes Velasco, Immigration Judge, El Paso, Texas, Immigration Court

Adrián F. Paredes Velasco was appointed an immigration judge to begin hearing cases in August 2023. Judge Paredes Velasco earned a Bachelor of Arts in 2002 from Lawrence University, a Master of Arts in 2005 from the University of Iowa, and a Juris Doctor in 2011 from Phoenix School of Law. From 2015 to 2023, he served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security, in El Paso. From 2011 to 2015, he was a legal clerk and attorney at the Lehm Law Group in Phoenix, Arizona. Judge Paredes is a member of the State Bar of Arizona.

ShaSha Xu, Immigration Judge, New York – Broadway Immigration Court

ShaSha Xu was appointed as an immigration judge to begin hearing cases in August 2023. Judge Xu earned a Bachelor of Arts in 2007 from Duke University and a Juris Doctor in 2011 from the Temple University Beasley School of Law. From 2019 to 2023, she served as an assistant chief counsel, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security (DHS), in New York. From 2016 to 2019, she served initially as an asylum officer and then as a senior asylum officer, U.S. Citizenship and Immigration Services, DHS, in New Jersey. From 2011 to 2016, she was in private practice at various law firms in New York and Pennsylvania. Judge Xu is a member of the Pennsylvania Bar.

Juliana Zach, Immigration Judge, Boston Immigration Court

Juliana Zach was appointed as an immigration judge to begin hearing cases in August 2023. Judge Zach earned a Bachelor of Law in 1994 from the Universidade Católica de Pernambuco, a Master of Business Administration in 2004 from the Florida Metropolitan University, and a Juris Doctor in 2008 from the Florida Agricultural and Mechanical University. From 2013 to 2023, she worked in private practice at Zach Law Firm LLC specializing in family and criminal litigation in Connecticut, as well as immigration law at the Zach Law Firm LLC. From 2013 to 2020, she also served as an attorney for the Brazilian Consulate General in Hartford, Connecticut. From 2009 to 2011, she served as an assistant state attorney for the felony division at the 18th Judicial Circuit in Sanford, Florida. Judge Zach is a member of the Connecticut Bar and the Florida Bar.

— EOIR —

Communications and Legislative Affairs Division

EOIR Announces 38 New Immigration Judges Page 13

The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all cases it adjudicates.

Communications and Legislative Affairs Division

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By my “quick analysis,” of the 38 new IJs:

9 primarily private immigration practice/NGO

15 primarily government prosecutors

4 mixed private immigration practice/prosecution backgrounds

10 “other government” backgrounds

26 with significant prior immigration experience

One name that stands out for me:

Judge Jennifer A. Durkin, Varick (NYC) Immigration Court, who has spent her entire career practicing immigration law in the private/NGO sector and most recently served as Deputy Attorney-in Charge of the Immigration Law Unit of the Legal Aid Society in New York.

EOIR-provided bios for Judge Durbin and the other new IJs are reproduced above.

Congratulations to all the new IJs, and remember the most important part of your job on the bench, providing:

🇺🇸 Due Process Forever!

PWS

08-13-23

🏴‍☠️👎🏼🤮 JUSTICE’S UNJUST “COURTS!” — Recent Reports Highlight Horribly Failed System —Asylum Free Zones, Unqualified Prosecutor-Judges, Deadly Denials, Blatant Information Imbalance, Dehumanizing Treatment, Poor Access To Counsel, Docket Mayhem, Unrealistic Timelines, Biased Outcomes, Indifference To Human Life, Unaccountability, Among The Myriad Problems Flagged By Those Forced To Deal With Garland’s Ongoing Mockery Of Due Process! — EXTRA! — How Poor Legal Performance @ DOJ Skews The Entire Immigration Debate!

injustice — Injustice
Public Realm
Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!

Austin Kocher, Ph.D.
Research Assistant Professor
TRAC-Syracuse
PHOTO: Syracuse U.

Two items from Professor Austin Kocher on Substack:

Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported

Omaha is now the toughest court in the country for asylum seekers, MPI hosts discussion on immigration courts in crisis, interview with an immigration judge, and more.

Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported austinkocher.substack.com • 1 min read

https://www.linkedin.com/feed/update/urn:li:activity:7086002474968313856?updateEntityUrn=urn%3Ali%3Afs_feedUpdate%3A%28V2%2Curn%3Ali%3Aactivity%3A7086002474968313856%29

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New Research by AILA Reveals Anatomy of an Asylum Case + Online Event

Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden admin’s attempts to speed up asylum cases may be ignoring this reality.

…see more

New Research by AILA Reveals Anatomy of an Asylum Case

https://www.linkedin.com/feed/update/urn:li:activity:7086001618898296832?updateEntityUrn=urn:li:fs_feedUpdate:(V2,urn:li:activity:7086001618898296832)

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And, this from Lauren Iosue, Georgetown Law L-3 on LinkedIn.

Lauren Iosue

View Lauren Iosue’s profile

• 1st

J.D. Candidate at Georgetown University Law Center

3d •

Through my internship at the Florence Immigrant and Refugee Rights Project, I observed master calendar hearings in the detained docket in the Florence Immigration Court. I was back in Florence, Arizona, because the court itself is located within the barbed wire of the detention center. Observing the Florence Immigration Court emphasized how dehumanizing removal proceedings can be for detained immigrants. Master calendar hearings are often immigrants’ first interaction with the Court. To start, a guard brought a group of men in jumpsuits to the courtroom and lined them up. The judge read them their rights and then called them individually to discuss their case. Twice I witnessed the wrong person being brought into court where they sat through proceedings until the guards realized and switched them out for the correct person.

The vast majority of Respondents in removal proceedings are unrepresented. There is a blatant information imbalance in immigration court when the immigrant is unrepresented. Oftentimes, pro se detained immigrants do not have access to the resources represented or released Respondents have during their proceedings. Respondents may not know their legal options unless organizations like the Florence Project can speak to them before their hearing and provide them with pro se information packets or represent them. During the hearing, the men did not even have a pen and paper to take notes. Meanwhile, the immigration judge and government attorney have access to technology and a wealth of experience to pull from to make legal arguments.

This is just one example of many – my colleagues and I also observed translation issues and pushback against some men who wished to continue fighting their case. Above all, I’ll leave with this very simple observation: the judge and guards called each man up by his court docket number before his name. If we are to support and uphold the dignity of all people, we must do so especially in systems that look to strip it from them. Providing immigrants with access to a lawyer, if they’d like one, can ensure that people have access to information that allows them to make informed decisions about their case. The Florence Project is one of the organizations working tirelessly to expand access to representation throughout Arizona, and I hope to continue this work after graduating from Georgetown University Law Center next year. #EJAFellowUpdate | Equal Justice America

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Congrats to Lauren Iosue, and thanks for becoming a member of the NDPA! 😎 The scary thing: As an L-3, Lauren appears to have more “hands on” Immigration Court experience and a far deeper appreciation of the material, sometimes fatal, flaws in the EOIR system, than Garland and his other “top brass” in the DOJ responsible for operating and overseeing this tragic mess!

Why isn’t “real life” immigration/human rights experience representing individuals in Immigration Court were an absolute requirement for appointment to AG, Deputy AG, Associate AG, Solicitor General, and Assistant AG for Civil (in charge of OIL) in any Dem Administration, at least until such time as the Immigration Courts become an Article I Court removed from the DOJ?

30-years ago, when I was at Jones Day, we were budgeting a minimum of 100 hours of professional time for a pro bono asylum case! That was before the “21st century BIA” added more unnecessary, artificial technicalities to make it more difficult for asylum seekers to win. It’s not “rocket science!” 🚀

Lucy McMillan ESQUIRE
Chief Pro Bono Counsel
Arnold & Porter
Washington, D.C.
PHOTO: A&P

All Garland would have to do is reach back into his “big law” days at Arnold & Porter (“A&P”). He should pick up his cell phone and call Lucy McMillan, the award-winning Chief Pro Bono Counsel @ A&P. Ask Lucy what needs to change to get EOIR functioning as a due-process-focused model court system! Better yet, reassign upper “management” at EOIR, and hire Lucy to clean house and restore competence, efficiency, and excellence to his currently disgracefully-dysfunctional “courts!”

As Austin’s posts and the reports he references show, Garland’s indolent, tone-deaf, mal-administration of the Immigration Courts is a national disgrace that undermines democracy and betrays core values of the Democratic Party! How does he get away with it? Thanks to Austin, AILA, Lauren, and others exposing the ongoing “EOIR charade” in a Dem Administration!

As shown by recent “Courtside” postings about the “Tsunami” 🌊 of Article III “rejections” of lousy BIA decisions, throughout America, many, many more asylum cases could be timely granted with a properly well-qualified, expert BIA setting precedents and forcing judges like those in Omaha to properly and generously apply asylum law or find other jobs! Maximum protection, NOT “maximum rejection,” is the proper and achievable (yet unrealized) objective of asylum laws!

Asylum law, according to the Supremes and even the BIA is supposed to be generously and practically applied — so much so that asylum can and ordinarily should be granted even where the chances are “significantly less” than probable. See Matter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA 1987).

The problem is that the BIA and EOIR have never effectively implemented and followed the Mogharrabi standard. In recent years, particularly during the Trump debacle, they have moved further than ever away from this proper legal standard while still giving it lip service! Clearly, the IJs in Omaha and other “Asylum Free Zones” are operating outside the realm of asylum law with deadly and destructive consequences. Yet, Garland, a former Federal Judge himself, permits it! Why?

The assumption that most asylum seekers who pass credible fear should ultimately lose on the merits is false and based on intentionally overly restrictive mis-interpretations and mis-applications of asylum law! It’s a particular problem with respect to asylum seekers of color from Latin America and Haiti — a definite racial dimension that DOJ and DHS constantly “sweep under the carpet.” Because of the extraordinarily poor leadership from EOIR, DOJ, and DHS, this “fundamental falsehood of inevitable denial” infects the entire asylum debate and materially influences policies.

A dedicated long-time “hands-on” asylum expert, someone who actually met some of the “Abbott/DeSantis busses,” said that over 70% of those arriving from the border had potentially grantable asylum claims. That’s a far cry from the “nobody from the Southern border will qualify” myth that drives asylum policy by both parties and has even been, rather uncritically, “normalized” by the media.

Fixing EOIR is a prerequisite to an informed discussion of immigration and development of humane, rational, realistic immigration policies. That would be laws and policies based on reality, not myths, distortions, and sometimes downright fabrications.

Competent representation is also an essential part of fixing EOIR. There are ways to achieve it that Garland is ignoring and/or inhibiting. See, e.g., VIISTA Villanova. No excuses!

🇺🇸Due Process Forever,

PWS

07-17-23

🛡⚔️ THE ONGOING QUEST FOR THE “HOLY GRAIL OF JUSTICE” — Round Table Files Brief In Support Of Due Process, Rule of Law In East Bay Sanctuary v. Biden!

https://drive.google.com/file/d/12Gi2JbTNOI9C1kVWN1NuULgAuYCWziVd/view?usp=sharing

KEY EXCERPT:

INTRODUCTION

As former immigration judges and former members of the Board, we submit this amicus brief to ask the Northern District of California to strike down the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The Rule, which came into effect in the immediate aftermath of Title 42’s sunset and which applies to non-Mexican asylum-seekers at the U.S.-Mexico border, automatically forecloses a migrant’s asylum claim unless the person (i) arrives at an official port of entry having secured an immigration appointment through a complex mobile application, (ii) receives advance permission to travel to the U.S., or (iii) comes to the U.S. after applying for and being denied asylum in a transit country. Absent proof one of these narrow exceptions or a medical or other emergency, asylum-seekers will be unable to seek asylum regardless of whether they have compelling claims to relief.

Immigration judges serve an important role in the Congressionally-mandated process for reviewing the claims of asylum-seekers at or near the U.S.-Mexico border. This decades-old process, known as Expedited Removal, has its own flaws, but it does provide a credible fear review system that provides important protections for those seeking asylum. Specifically, and as explained in more detail below, the Expedited Removal statute requires that asylum-seekers, regardless of how they entered the United States, be interviewed by asylum officers to determine whether they have a credible fear of persecution and therefore can proceed to a full asylum hearing under Section 240 of the INA. The statute further mandates that immigration judges provide de novo review of asylum officers’ negative credible fear determinations, and thus make the final decision about whether an asylum-seeker at the U.S.-Mexico border has shown a credible fear of persecution and will have the opportunity to progress to a full asylum hearing.

The Rule unlawfully undermines this statutory scheme. First, the Rule creates clear bars to asylum for most migrants, disingenuously labeling these as “rebuttable presumptions.” As a result, almost all claims for asylum are pretermitted without the full asylum credible fear interviews required by the statutory Expedited Removal process. Rather, the credible fear interview will be turned into a “reasonable fear” interview to determine whether the migrant can proceed to claim withholding of

removal or protection under the Convention Against Torture (“CAT”), lesser forms of relief compared to asylum. Asylum-seekers are thus denied the opportunity to obtain full review of their asylum credible fear claims, including the de novo review by an immigration judge as required by Section 235 of the INA, 8 C.F.R. § 235.3. Instead, asylum-seekers may only seek review from an immigration judge as to the application of the narrow exceptions under the Rule or the lesser claims for relief. Accordingly, the Rule significantly and unlawfully curtails the role of immigration judges in asylum adjudication as set forth in the INA.

Moreover, the idea that the Rule heightens efficiency in the asylum adjudication process is an illusion. When an asylum-seeker is denied the ability to provide a credible fear of persecution, Expedited Removal still requires a review of potentially more complicated claims for withholding of removal and protection under the CAT. Thus, immigration judges on the one hand find their hands tied, unable to review the claims of bona fide asylum-seekers, but on the other hand are required to delve into the standards of withholding and CAT. Thus, the Rule turns a straightforward (and efficient) asylum credible fear review into a three-part analysis: the Rule exceptions, withholding, and CAT.

Finally, by creating exclusions that deny asylum to refugees who appear at the U.S.-Mexico border, the Rule violates U.S. obligations under the 1951 Refugee Convention. Longstanding canons of statutory and regulatory construction require consideration of international law; in this case, the Rule violates both the INA and international law.

. . . .

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Read the complete brief skillfully prepared by our friend Ashley Vinson Crawford and her team at Akin Gump!

Our brief basically reiterates, expands, and applies points we made in our recent comments opposing the Biden Administration’s “Death to Asylum,” regulations! See https://immigrationcourtside.com/2023/03/27/⚔%EF%B8%8F🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠%EF%B8%8F-proposed/

Rather than heeding our comments and those of many other experts, the Administration proceeded with its wrong-headed changes, rammed through a farcically truncated “comment period” that showed that process was little but a sham. This is the exact kind of mockery of justice and prejudgement that one might have expected from the Trump Administration. It’s also one of the many things concerning immigration that Biden and Harris “ran against” in 2020 but lacked the will and integrity to achieve in practice.

Notably, we’re not the only group of “concerned experts” weighing in against the Biden Administration’s ill-advised rules. The union representing the USCIS Asylum Officers were among the many expert organizations and individuals filing in support of the plaintiffs in East Bay Santuary. See, e.g., Asylum Officers, Ex-Judges Back Suit On Biden Asylum Rule – Law360.

Among other choice commentary, the Asylum Officers argue that the rule “effectively eliminates asylum” at the southern border! What on earth is a Dem Administration doing betraying due process and the rule of law in favor of the most scurrilous type of nativist anti-asylum pandering — stuff right out of the “Stephen Miller playbook?” Who would have thought that we would get rid of Miller & company in 2020, yet still have to deal with his ghost in a Biden/Harris Administration that clearly and beyond any reasonable doubt has “lost its way” on immigration, human rights, racial justice, and the rule of law?

As Round Table spokesperson “Sir Jeffrey” Chase says, “We are in very good company!” Too bad that the Biden Administration has wandered off course into the morally vacant, disingenuous “never-never land” of anti-asylum, racially-driven nativism! It certainly did not have to be this way had effective, principled, expert leadership taken hold at the beginning.

🇺🇸 Due Process Forever!

PWS

06-09-23

🇺🇸⚖️🗽🦸🏻 AMERICAN HERO: Round Table 🛡⚔️ Judge (Ret.) Ilyce Shugall Reflects On Two Decades Of Promoting Justice & Resisting Evil: “While United States detention policies and conditions were cruel when I worked at ProBAR, they are exponentially worse today.”

Published by the ABA:

https://www.americanbar.org/groups/public_interest/immigration/generating_justice_blog/probar-then-and-now/

I started my post-law school immigration law career at ProBAR in Harlingen, Texas, as an Equal Justice Works Fellow from September 1999 to September 2001. In May, 2023, I had the privilege of returning to ProBAR as a volunteer with the ABA Commission on Immigration (COI) to engage in a week of pro bono service. I have been a Commission member for almost three years. My return, over twenty years after I left the Rio Grande Valley, provided me perspective, and caused me to reflect on the many changes as well as the constants in the South Texas border region, where I learned how to be a fierce immigration advocate. I was privileged to spend the week with welcoming ProBAR staff, COI colleagues, and the COI director, Meredith Linsky, who was my boss and mentor at ProBAR, a hero to the immigrants’ rights movement, and is someone I am proud to call a colleague and friend.

Our first day of our pro bono week began at the new ProBAR office. When I walked into the office, I felt like I was in a different world! ProBAR’s new office space is large, spacious, beautiful, and inviting. It is clear that much thought went into the design and structure of the office, considering the need for private office space, open collaborative space, large quiet spaces, conference rooms, outdoor space, and a gym and yoga room to ensure staff can decompress and energize before, during, or after long, challenging, and emotionally draining days. The office is a sharp contrast to the ProBAR office where I worked—two rooms on the second floor of an old, pest-infested house. The new office is equipped with state-of-the-art technology, another contrast from my experience, where we used dial up internet and unplugged the fax machine before we could access the internet. We learned that ProBAR now has a staff of 270 people. In 1999 when I started, we were a staff of three—the ProBAR director, the volunteer paralegal, and me. I am thrilled to see the investment in the staff through hiring and creating a livable workspace. Comfortable, functional, supportive workspace is crucial to the sustainability of the demanding work.

Our schedule for the week included meeting with partner organizations in Brownsville and Matamoros, meeting with individuals detained at the Port Isabel Detention Center (PIDC), touring children’s shelters, and visiting La Posada Providencia, a welcoming shelter for many immigrants and refugees. I was impressed by the resiliency and responsiveness of organizations in the region. The increase in resources for noncitizens in the Rio Grande Valley was striking and is unquestionably due to necessity. The humanitarian crisis at the border is unlike anything I saw between 1999 and 2001 and the need has increased exponentially. I was impressed by the partnerships established by the ProBAR team. The increased staffing has allowed ProBAR to form and maintain crucial partnerships throughout the Rio Grande Valley. During my time at ProBAR, we relied on trusted partnerships; however, due to our limited staffing, we were unable to engage in outreach or foster relationships with many organizations. The current partnerships with shelters and other social services organizations are crucial to ProBAR’s ability to meet the needs to the community they serve.

ProBAR’s presence in Brownsville is remarkable. We utilized ProBAR’s small office close to the border. This space was crucial when the Migrant Protection Protocols (MPP) program was still in place, as ProBAR staff served clients facing removal proceedings in the tent courts. The office space on the border continues to provide essential access to clients and the social services agencies that serve them. It allows the ProBAR staff to do outreach, education, and intake at the non-legal organizations that serve mutual clients. For example, while in Brownsville, we provided legal consultations to numerous individuals staying at a Brownsville shelter. We also visited one of the unaccompanied children’s shelters in Brownsville, where ProBAR staff provide services.

During our pro bono week, we had the opportunity to travel to PIDC twice to provide consultations to recently arrived asylum seekers. It was bittersweet to return to the detention center I frequented from 1999 to 2001, when I traveled daily to what was then called Port Isabel Service Processing Center (PISPC) – PIDC is a more appropriate name. PIDC has not changed much. The entrance, lobby, attorney visitation area, and court space have been remodeled. I recall a dingy dirty lobby with a pay phone I used regularly to call the ProBAR office after long afternoons of presentations and consultations. The lobby is now clean, spacious, and the pay phone is gone. However, the interior of the detention center remains the same- a jail with razor wire, barbed wire, and no freedom of movement. Also similar was ProBAR’s access to the facility due to the reputation the agency has built over the years. When I went to PISPC daily, I felt respected by guards and government officials. I learned the importance of building those relationships to ensure access to those who needed the services. ProBAR’s reputation endures, and the relationships remain strong. ProBAR’s continued ability to provide Know Your Rights presentations and consultations in the facility is crucial to serving the needs of thousands of individuals every year.

In the two days I conducted consultations with noncitizens at PIDC, I met men from Venezuela, Honduras, and Guatemala. The nationalities of individuals detained have shifted over the years, but the reasons they have fled their homes remains constant. They are fleeing political violence and oppression, gang violence, cartel violence, and government instability. The men detained at PIDC endured exceptional hardship, danger, and suffering to arrive at the United States border to seek refuge. While United States detention policies and conditions were cruel when I worked at ProBAR, they are exponentially worse today. Currently, noncitizens are forced to stay in unsanitary and unsafe refugee camps in Matamoros often for months while trying to request protection in the United States. They face disease, kidnapping, rape, and torture in Matamoros while the United States and Mexican governments turn a blind eye and collaborate to keep them from crossing the bridge into Brownsville. When those lucky enough to find a way into the United States arrive, many are forced to remain detained in Customs and Border Protection custody for weeks, sleeping on the floor with limited to no access to showers and in freezing rooms or cells. They then must navigate the new confusing and complex asylum rule without counsel. While we were unable to provide representation, the men we met with were grateful for our explanation of the legal process, as well as the pro bono legal consultations we provided.

As part of our trip, we also had the opportunity to go to Matamoros and meet with partners at the Sidewalk School. The plan to walk over the bridge, meet with Sidewalk School staff, and tour one of the refugee shelters took much time and coordination on the part of ProBAR and ABA staff. Unlike when I lived and worked in Harlingen, when going to Matamoros was often a spur of the moment decision to have dinner or go shopping, today, numerous considerations must be assessed. Matamoros was a safe city when I crossed regularly. However, today, due to the United States’ and Mexico’s war on drugs, Matamoros is often dangerous, particularly for refugees hoping to reach the United States. I appreciate the care, planning, and coordination that went into our day in Matamoros. Witnessing the situation at the base of the bridge as well as the refugee camp was crucial to gaining a true understanding of the consequences of United States immigration law and policy changes over the last several years. Photos of the bridge and the camp provide a glimpse into the reality that refugees are living. However, the photos did not prepare me for what I saw and experienced. Walking into and around the shelter full of makeshift tents, no sanitation, no services, in 90+ degree temperatures with soaring humidity was horrifying. People approached us for information and help, desperate to access medical care and safety. I fought back tears the entire time we were in the camp. No one should live in these conditions, and no one who lives in the camps is there by choice. Refugees tolerate the dangerous, unsanitary conditions that are making them sick because they were forced to leave their homes. Their flight was not voluntary. Seeing the camp provided me even greater perspective on the situations they fled. I left feeling sad, horrified, and angry at the United States government policies that created the humanitarian crisis in Matamoros. It is avoidable. It can be changed for the better. Instead, the United States government recently finalized a rule to make it harder for those seeking protection to access the United States asylum system. This rule will exacerbate the problems in Matamoros and has caused and will continue to cause greater human suffering on both sides of the border.

I am thankful for my week with ProBAR. I appreciated starting my days as I started many days when I lived in Harlingen decades ago, running on the path along the Arroyo Colorado in the heat and humidity, among the beautiful lush green plants, chirping birds, and adorable bunnies. I found peace and energy running on the path, which carried me through the days of the harsh realities of human suffering and unfair laws and policies. My time at ProBAR reminded me why I continue to work as an immigration attorney, why I work at another amazing nonprofit, Immigrant Legal Defense, to provide free legal services to underserved communities, including noncitizens in ICE detention.

Author

Ilyce Shugall

Managing Attorney at Immigrant Legal Defense

Ilyce is currently a Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto (CLSEPA). She was an adjunct professor in the Villanova Interdisciplinary Immigration Studies Training for Advocates from January 2021 to December 2021. She was previously the Director of the Immigrant Legal Defense Program at the Justice and Diversity Center of the Bar Association of San Francisco. Prior to joining JDC, Ilyce served for 18 months as an immigration judge in the San Francisco Immigration Court. Prior to serving as an immigration judge, Ilyce was the Directing Attorney of the Immigration Program at CLSEPA from 2012-2017. Under Ilyce’s leadership, CLSEPA’s immigration staff grew from four to twenty. Ilyce also served temporarily as the first legal director for the San Francisco Immigrant Legal Defense Collaborative at the Bar Association of San Francisco in 2015. For 10 years, Ilyce was an attorney at Van Der Hout, LLP. Three of those years she spent as a partner. Before joining the private sector, she worked at the South Texas Pro Bono Asylum Representation Project (ProBAR) as a National Association of Public Interest Law/Equal Justice Fellow. Ilyce received the 2016 National Pro Bono Services Award from the American Immigration Lawyers Association; and was a 2015 Silicon Valley Business Journal’s “Women of Influence” awardee. Ilyce is a commissioner on the American Bar Association’s Commission on Immigration and previously served as a commissioner on the State Bar of California Commission on Immigration and Nationality Law. She was NIPNLG’s update editor for Immigration Law and the Family from 2012-2017, and has published numerous articles on immigration law. Ilyce is an active member of the Round Table of Former Immigration Judges. Ilyce holds a JD from DePaul University College of Law, and a BA from the University of Wisconsin, Madison.

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Talk about a professional career spent on the “front lines” of fighting for due process and humanity! Thanks for all you do and for being such an inspiring role model, my friend (and fellow Badger). It’s an honor to be your colleague on the Round Table and the VIISTA Villanova Program!

I was detailed to the Port Isabel Detention Center shortly before my retirement. I remember it pretty much as Ilyce describes it today.

The facility and court personnel were nice and helpful. But, there was an aura of grimness, despair, and wastefulness hanging over everything that just couldn’t be dispelled. Leaving the facility every night have me a sense of relief.

I think that all so-called policy makers in the Biden Administration should be required to experience a week in one of their immigration prisons as a prerequisite for obtaining or retaining their jobs. Sadly, and inexcusably, we now have folks making life or death decisions about immigration and human rights policy and the future of our nation who know less and have less perspective than Ilyce and others had after completing their one-year EJW Fellowships! The lack of expertise, compassion, creativity, and common sense in the Biden Administration’s immigration hierarchy/bureaucracy shows!

To quote Ilyce, about the largely self-created “humanitarian crisis” at the border: “It is avoidable. It can be changed for the better.” My question is why isn’t a Democratic Administration that many voted for to solve problems and make things better at the border getting the job done?

🇺🇸 Due Process Forever!

PWS

06-03-23

😎⚖️🗽 REAL LEADERSHIP SPEAKS: “[T]he promises that nations made after World War II to respect the dignity and rights of those who are fleeing have been eroded and now, on a practical level, forgotten,” says Anna M. Gallagher, Executive Director of Catholic Legal Immigraton Network (“CLINIC”)!

Anna Marie Gallagher, Esquire
Executive Director
CLINIC
PHOTO: CLINIC website

Executive Director Opening Plenary Remarks CLINIC Convening 2023
May 17, 2023

Good afternoon, dear friends. My name is Anna Gallagher and I have the honor of leading CLINIC as executive director. It is such a pleasure to be here with you all as we officially begin our first in-person Convening since 2019.

Looking out at the sea of faces in front of me, I am filled with gratitude to finally be able to come together to engage with one another, to listen, learn and gather strength for the work ahead in support of our immigrant brothers and sisters.

Even just being in your presence I feel a sense of renewed hope and energy. I am so looking forward to the next few days, and I am certain that you will be reignited to take on the important work ahead.

In a moment I will welcome our wonderful panel of Affiliate experts, but right now I want to take a moment to recognize this moment we’re facing and my hopes for this year’s CLINIC Convening.

You all, of all people, know that immigrant communities are facing truly unprecedented challenges – and I do not use that word, unprecedented, lightly.

With the lifting of Title 42, and the camps of men, women and children along the border desperate to find welcome on the other side; the proposed USCIS fee increases which threaten to put immigration benefits out of reach for many; the newly announced delays for foreign-born religious workers and special immigrant juveniles; and, perhaps above all, our warming planet and the outbreaks of violence which force many more people to migrate around the world – these are extremely challenging times for migrants in our country and around the world.

Several months ago, the New York Times featured an op-ed that has stuck with me, entitled, “The Rich World Has a Shockingly High Tolerance for Cruelty.”

It was about how rich nations are more willing than ever to let migrants languish at their borders in sub-human conditions rather than create safe pathways for migration or address the conditions causing people to flee.

It was about how the promises that nations made after World War II to respect the dignity and rights of those who are fleeing have been eroded and now, on a practical level, forgotten.

When I read this article, in my mind I was transported back to the time I spent in North Africa several years ago, working with migrants as a representative of Jesuit Refugee Services.

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I interviewed migrants who had traveled for 18 months or more to try and find safety in these countries bordering Europe. I got to know some of the migrants, who called me “grandma” – a term of endearment, as my hair was grey.

While I was talking to some of them, they showed me their hands, which were scarred with wounds. When I asked them what happened, they said their hands were repeatedly pierced while climbing barbed wire to get through to safety.

Hearing this, my heart broke – as it has many times over the years.

The idea that we are using barbed wire to keep out our fellow human beings is inconceivable, yet true. Our immigrant brothers and sisters stand at our gates, begging for our aid, and we build barbed wire fences that pierce their hands.

Many wealthy nations are founded on a concept of all human beings being equal in dignity, but we do not act like it.

As we gather in Arizona, I know we are all mindful that these kinds of camps that the op-ed author is speaking of are just several hours away on the border. We also know that immigrant communities’ dignity is denied not only in these camps, but all over the country in the various places we’ve come from.

We must be clear, this is not an “other side of the world problem,” it is our problem. It affects all of us, in our integrity as people of faith and conscience, and as a reflection of our society.

And yet today, as I recall that New York Times op-ed, and the sense of frustration and despair I felt while reading it, I feel a surge of hope.

I want you to look around the room. Look at your neighbor to your left and right. YOU are the hope that fills my heart, and YOU are the hope that reignites me in our work.

As we gather here today, I am in a room full of people who DO act like all human beings are equal. Those who spend their precious time – often too much of their time, working long hours – trying to advance the truth that every person is precious, valuable, and deserving of a safe and dignified life.

That’s why being in your presence gives me such hope. I am reminded that the CLINIC network is full of holy people.

That is why our gathering here together, and throughout this week, is so powerful: we are, to borrow the words of Bishop Seitz of El Paso, working to be a “creative counterexample” to the culture of fear and hostility, to be a network that is slowly creating a new culture of solidarity and hospitality.

At CLINIC, we also are bolstered by our faith that we do not do this hard work alone. The spirit of God is inspiring us and pushing us forward, giving us strength and magnifying our efforts, especially when we are overwhelmed by the need in front of us.

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Our faith also acts as a mirror for us, forcing us to keep evaluating whether we are truly reflecting the gospel truth of God’s concern for all people.

To maintain this faith, and to maintain the energy to be this creative counterexample, we need one another. Our network is sustained through the support, advice, and solidarity we demonstrate to one another.

Throughout the next few days, we will take the time to step back, to reflect on our work and learn and share new strategies, information, and tips for the very practical day-to-day work of supporting immigrant clients and communities.

We know that this practical work – the forms, the bureaucracy, the nitty-gritty details – changes and saves lives. So how well we can do it matters, which is why we gather to learn and grow.

We also gather to enjoy one another – to laugh, share stories, and reconnect with beloved colleagues and friends.

So I also hope that over the next few days you will have some fun!

Thank you for coming here to CLINIC Convening and for your dedication to this work. I am so honored to be alongside all of you this week, and all days.

Now, I am pleased to introduce our panelists for our opening plenary, Preparing for the Lifting of Title 42: Key Insights from our Network. When we decided on “reunited and reignited” for our theme this year, we knew we wanted to do something different for our opening conversation.

This “Network Fireside Chat” will be an opportunity to highlight the work done by our network throughout the United States. During this conversation, you’ll hear how Affiliates in three distinct geographical regions are rising to meet the needs of our immigrant and refugee brothers and sisters – especially during this increased time of uncertainty.

From the Border region, Joel Enriquez-Cazarez will share about the work of Jewish Family Service of San Diego.

As a transit city, Carolina Rivera will share how Catholic Charities of Dallas assists our immigrant brothers and sisters.

And Yer Vang from Catholic Charities Archdiocese of Dubuque will give an interior city perspective of welcome.

Now please join me in welcoming our keynote panelists to the stage…

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Thanks, my friend, for a lifetime of service to due process, fundamental fairness, and social justice, and for speaking out as the “powers that be” and the “powers that wannabe” go into cowardly retreat and hide in fear from the needs and rights of humanity!

🇺🇸 Due Process Forever!

PWS

05-24-23

👂📢 ATTN NDPA: Attend An EOIR “Listening Session” On the All-Important Topic Of “Enhancing Pro Bono Representation!”

Hey Listen — Hey listen!
Quinn Dombrowski from Berkeley, USA
Creative Commons Attribution-Share Alike 2.0

EOIR to Host Listening Session Seeking Input on Enhancing Pro Bono Representation

SUMMARY: The Executive Office for Immigration Review (EOIR) will host six listening sessions to facilitate conversations with law school clinical communities nationwide about creating best practices for practical and clinical representation and empowering immigration judges and staff to leverage the pro bono resources law schools provide. EOIR’s objective is to build the capacity of representation in immigration court proceedings by cultivating and maintaining interest in pro bono advocacy.

As the “Access EOIR” initiative continues, EOIR seeks to engage law school clinical communities about their needs. During the meeting, EOIR would like to hear from participants about:

Any communities or areas of focus for law school clinics, including whether they represent noncitizens in removal proceedings, and whether they focus on specific case types or dockets.

The average number of removal cases handled per year.

The types of interactions with immigration courts, especially for those not
providing representation in removal proceedings.

The intake processes across law school clinics.

Suggestions on how EOIR can better support law school clinics.
EOIR encourages professors and leaders from law schools to attend the meeting for their clinic’s region but welcomes all such individuals to attend any session that works for their schedules. Professors and leaders of law school clinics who are unable to attend any of the sessions, including those who were unaware of the sessions in advance, may request a session by sending the name(s) of the attendee(s) and the law school clinic, the date and time requested, and a valid email address to: engagewitheoir@usdoj.gov.

DATES:

April 14 at noon (CT) –

April 17 at 1:00pm (ET) – April 20 at 10:30am (ET) – April 21 at noon (PT) – April 27 at 1:00pm (ET) – April 28 at noon (PT) –

AR, IA, IL, IN, KY, MI, MN, MO, NE, ND, OH, SD, TN, WI

DC, DE, MD, NC, NJ, PA, SC, VA, WV CT, MA, ME, NY, PR, RI, VT
CA
FL, GA, LA, TX

AK, AZ, CO, GU, HI, ID, KS, MP, MT, NM, NV, OR, UT, WA, WY

LOCATION: Live via WebEx.

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From my vantage point, the current EOIR system is not particularly “pro bono friendly!” So, this is a chance for those of you who are actually providing, or trying to provide pro bono assistance to weigh in with your ideas on how the system could be better!

🇺🇸 Due Process Forever!

PWS

04-12-23

🗽⚖️ DESPITE DOJ’S “LIP SERVICE” TO THE VALUE OF LEGAL REPRESENTATION, GARLAND’S EOIR CRUSHES DEFENSELESS MIGRANTS 🤮 WITH “GIMMICKS” TO KEEP THE “NUMBERS” FLOWING, ABUSE “COURTS” AS “DETERRENTS,” & DEMORALIZE ADVOCATES! ☠️ — As A Retired USIJ, Here Are My “Practical Tips” For Those Facing An Intentionally Hostile & User Unfriendly System Alone!

Child Alone — Immigration Court can be a daunting experience even for veteran litigators. For folks like this, alone with no representation, it’s “mission impossible.” Yet Biden A.G. Merrick Garland has done little to fix the systemic “user unfriendliness” and sometimes outright hostility to pro se litigants in his totally dysfunctional “courts in name only!” (“CINOs”).
PHOTO: Victoria Pickering, Creative Commons License

Unrepresented respondents do not receive full due process in America’s dysfunctional Immigration Courts! See, e.g., https://sgp.fas.org/crs/homesec/IF12158.pdf.

Clearly, gimmicks rolled out by Garland and the Biden Administration, including stunts like “dedicated dockets,” “expedited dockets,” “Aimless Docket Reshuffling,” detention courts in the middle of nowhere, unregulated bond procedures, lousy precedents, wasteful litigation against practitioners, proposed regulations irrationally “presuming” denial of asylum, abuse of Title 42, assigning asylum seeker resettlement to GOP nativists like DeSantis and Abbott, and refusal to bring in qualified experts with Immigration Court experience to fix this disasterous system have made the already horrible plight of the unrepresented worse! See, e.g.,https://trac.syr.edu/immigration/reports/674/.

With respect to DHS detainees awaiting hearing, a few are subject to so-called “mandatory detention without independent review” as a result of statutes. Others are imprisoned because ICE claims that they are so-called “arriving aliens” (a designation that even some IJs struggle with, but that has huge consequences for a respondent), “likely to abscond,” or ”security risks!”

But, a significant “unstated purpose” of immigration detention, often in substandard conditions, is to coerce detainees into giving up legal rights or waiving appeals and to punish those who stubbornly insist on asserting their rights.

When the almost inevitable “final order of removal” comes, officials in Administrations of both parties believe, without much empirical evidence, that detainees will serve as “bad will ambassadors,” carrying back woeful tales of wonton cruelty and suffering that will “deter” others from darkening the doors of “the world’s most generous nation.”

In spite of this overall “institutionalized hostility,” there is a small, brave cadre of “due process/fundamental fairness heroes” known as the Office of Legal Access Programs, or “OLAP” at EOIR! Forced into “the darkest corners of the EOIR Tower dungeon” during the reign of terror of “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr, they have finally been released into daylight.

The Dungeon
Former A.G. Jeff “Gonzo Apocalypto” Sessions had a special place in the EOIR Falls Church Tower for those trying to assist pro se litigants in Immigration Court.
Public Realm

As an interesting aside, I note that “Gonzo Apocalypto” actually had the audacity to attempt to eliminate the wildly popular and effective “Know Your Rights” presentations to hapless immigration detainees. See, e.g., https://www.westword.com/news/department-of-justice-reverses-decision-to-fund-legal-orientation-program-for-immigrants-in-detention-10205735. “Gonzo” apparently believed that the only thing detainees needed to “know” was that they had “no rights.” Of all the illegal, unethical, and racially directed “shots” that Gonzo took at migrants and their hard-working advocates in his disasterous two-year tenure, this is the only one that bipartisan outrage on the Hill forced him to abandon. See, e.g., https://spectrumlocalnews.com/tx/south-texas-el-paso/politics/2018/04/26/doj-restores-funding-for-immigrant-legal-aid–.

But, make no mistake about it — these courageous folks at OLAP aren’t helping to “drive the train” at EOIR under Biden and Garland, as they certainly should be! No, as was the case before Trump, they are racing down the station platform to catch the train as it departs without them.

How do I know? It’s actually pretty obvious. If Garland & the Administration were actually serious about promoting representation, they would:

Require a positive report from the OLAP before opening any new Immigration Court;
Subject all existing detained “courts” (that aren’t really “courts” at all, within the common understanding of the term) to an OLAP analysis, involving input from the pro bono bar, and close any location where pro bono counsel can’t be made reasonably available to all detainees who want it;
Make part of the IJ hiring process input from the OLAP and the public into the demonstrated commitment of each “finalist” for an Immigration Judge position to working to maximize representation; and
Work with outside programs like Professor Michelle Pistone’s innovative “VIISTA Villanova Program” for training accredited representatives to “streamline and expedite” the Recognition & Accreditation process housed within OLAP.

To my knowledge, none of these obvious “first steps” to address the representation crisis at EOIR have been instituted. Tells us about all we need to know about the real importance of the OLAP in Garland’s galaxy.

Recently, I had the pleasure of meeting with Alicia de La O, her attorneys, and interns at the ABA who are helping the OLAP “staff” the “pro se hotlines” for detainees in immigration proceedings. Of course, they can’t provide “legal advice,” although they can direct pro se litigants to available “self help” materials prepared by OLAP and reliable pro bono NGOs. But, as I pointed out, just being available to speak with isolated detainees, listen sympathetically, and direct them to available resources is a “big deal” from both a human and a practical perspective.

Remarkably, the amazingly talented, informed, and energetic undergraduate interns working with the ABA had a far better understanding of the corrosive effect on democracy and America’s future of the mocking of due process, fundamental fairness, racial justice, and human dignity in Immigration Courts than inept and often clueless Biden Administration so-called “immigration policy officials” have acknowledged with their words and deeds. Indeed, one of the undergraduate interns had already completed the VIISTA program. He therefore probably knows more about the Immigration Courts at the “retail level” than some of the clowns Garland has running EOIR!

The energy and commitment of these interns to take on existential challenges that our “leaders” from both parties have shunned, gave me some hope for America’s future. That is, if democracy can survive the overt attacks from the right and its tepid defense by Democrats, by no means an assured outcome.

This opportunity to meet with those working on the front lines of helping the most isolated, vulnerable, and intentionally neglected among us got me thinking about what I might say to a pro se litigant stuck in the “EOIR purgatory,” based on my experience. I note, with some pride, that during my time on the trial bench, almost every pro se individual who wanted to appeal one of my orders was able to file timely with the BIA based on the detailed instructions I gave them at the end of the hearing.

So, as promised, here’s “my list!”

PRO SE CHECKLIST

Judge (Ret.) Paul Wickham Schmidt

March 1, 2023

1) Be careful in filing out the I-589. Everything in the application, including mistakes, omissions, and failure to answer questions can be used AGAINST you at the hearing. Filing a fraudulent application can have severe consequences beyond denial of your case.

2) Do NOT assume that significant omissions or errors in the I-589 can be corrected or explained at the hearing without adverse consequences.

3) If you use a translator, ask that the application be read back to you in FULL for accuracy, before signing. Generally, there is no such thing as an “insignificant error” on an asylum application. All inaccuracies can and will be considered by the IJ in determining whether you are telling the truth.

4) Obtain any relevant documentation supporting the claim and attach to the application. All documents in a foreign language MUST be translated into English. A certificate of accuracy from the translator must also accompany the document. DO NOT expect the court interpreter to translate your documents during the hearing.

5) Understand NEXUS to a “protected ground;” merely claiming or even proving that you will suffer harm upon return is NOT sufficient to win your case; many pro se cases fail on this basis.

6) Any pro se case claiming a “Particular Social Group” will need help in formulating it. Do NOT expect the IJ or ACC to assist in defining a qualifying PSG.

7) Keep a copy of the application and all evidence submitted.

8) Sign your application.

9) Make sure that the original signed copy goes to the Immigration Court and a copy to the ACC.

10) Keep documents submitted by ICE or the Immigration Court.

11) Do NOT rely on your translator, friends, relatives, or “jailhouse lawyers” for advice on filling in the application. NEVER embellish or add incorrect information to your I-589 just because someone else tells you to or says it’s “the only way to win your case.”

12) DO NOT let friends, detention officers, the IJ or anyone else (other than a qualified lawyer working for you) talk you out of pursuing a claim if everything in it is true. You must “tune out chatter” that everybody loses these cases, and therefore you are wasting your time.

13) Do NOT tell the IJ and/or ACC that everything in your application is true and correct if it is not true!

14) If you discover errors in your application before the hearing, ask the IJ at the beginning of the hearing for an opportunity to correct them. Do NOT wait to see if the ACC brings them up.

15) If you will be testifying through an interpreter, ask the IJ for a brief chance to converse with the interpreter before the hearing to make sure you understand each other. If there is any problem, tell the IJ BEFORE the hearing begins.

16) The Immigration Court hearing is a formal, adversary hearing, NOT an “informal interview” like the Asylum Office.

17) Be courteous and polite to the Immigration Judge, the ICE Assistant Chief Counsel, and the interpreter at all times, BUT BE AWARE:

1) The IJ and the ACC are NOT your friends;

2) They do NOT represent your interests;

3) The ACC’s basic job is to urge the IJ to deny your application and enter an order of removal;

4) The IJ is NOT an independent judge. He or she works for the Attorney General a political enforcement official. Some IJs function with a reasonable degree of independence. But, others see themselves largely as assisting the ACC in in denying applications and rapidly turning out removal orders.

5) The interpreter works for the court, NOT you.

18) YOU will be the only person in the courtroom representing your interests.

19) Don’t answer a question that you don’t understand. Ask the IJ to have it repeated. If it is a complicated question, ask the IJ if it can be broken down into distinct parts.

20) If you really don’t know the answer to a question, don’t “guess!” “I don’t know, your honor” is an acceptable answer, if true.

21) If the ACC introduces evidence at the hearing — say a copy of the Asylum Officer’s notes — ask the IJ for a full translation through the interpreter before answering questions.

22) If documents you submitted support your claim, direct the IJs attention to those documents.

23) When it is time for the IJ to deliver an oral decision, make sure that you are allowed to listen through the interpreter.

24) Bring a pencil or pen and a pad of paper to the hearing. Try to take notes on the decision as it is dictated by the IJ.

25) If the decision goes against you, tell the IJ that you want to reserve an appeal and request copies of the appeal forms. You can always withdraw the appeal later, but once an appeal is waived it is difficult, often impossible, to restore it.

26) If the IJ rules in your favor, and the ACC reserves appeal, understand that the order in your favor will have no effect until the appeal is withdrawn or ruled upon by the BIA. For detained individuals, that probably means remaining in detention while the appeal is resolved, which might take months.

27) If you appeal, fill out the forms completely according to instructions and file with the BIA as soon as possible, the same or next day if you can. That is when your memory will be best, and it maximizes the chance of the BIA receiving your appeal on time. Do NOT wait until the last minute to file an appeal.

28) Be SPECIFIC and INCLUSIVE in stating why you think the IJ was wrong. Attach a separate sheet if necessary. Just saying “The Judge got it wrong” or “I disagree with the decision” won’t be enough and might result in the BIA rejecting your appeal without further review.

29) Remember to file the separate fee waiver request form with the Notice of Appeal.

30) Assume that all filing deadlines will be strictly applied and that pro se applicants will NOT be given any breaks or special treatment, despite mailing difficulties and other problems.

31) DON’T count on timely mail delivery. The Notice of Appeal, brief, or any other document is not “filed” with the BIA until they actually receive it. Merely placing it in the mail before the due date will NOT be considered a timely filing if the document arrives late. Mail early!

32) If you are not in detention, use a courier service to deliver filings to the BIA so you have solid evidence of timely filing.

33) If you check the box on the appeal form saying you will file a brief or additional statement, you MUST do so, even if short. Failing to file a brief or written statement after checking that box can be a ground for the BIA to summary dismiss your appeal without considering the merits.

34) Info about the BIA Pro Bono Project.

NOTICE: The ideas above are solely mine. They are not legal advice, and have not been endorsed or approved by any organization or any other person, living or dead, born or unborn.

🇺🇸 Due Process Forever!

PWS

03-06-23

🇺🇸⚖️🗽 ATTN NDPA WARRIORS! — BE ON THE “CUTTING EDGE” OF THE FIGHT FOR JUSTICE IN AMERICA AT THE “RETAIL LEVEL!” — Apply now to be part of Immigrant Defenders Law Center’s first cohort in the Spanish Immersion Project for Lawyers! Learn Spanish on the job while representing unaccompanied minors. This is an opportunity you don’t want to miss!

Lindsay Toczylowski

• 1st

Executive Director at Immigrant Defenders Law Center

13h • Edited •

13 hours ago

This is an idea that Yliana Johansen-Méndez and I have been talking about for a long time and I am so excited to see it come to fruition at Immigrant Defenders Law Center. We need more Spanish speaking attorneys ready to fight for our communities, and there simply are not enough to fill the need that exists currently. So, let’s change that.

That was the simple idea behind the ImmDef Spanish Immersion Project for Lawyers. Give people an opportunity to become the lawyers we need. Please share widely and encourage those interested to apply quickly – we anticipate this inaugural class will fill quickly! #jobposting #immigrationlaw #socialjustice #SpanishForLawyers

Here’s the link for more information about this innovative program:

https://www.linkedin.com/feed/update/urn:li:activity:7031861959402668032/?lipi=urn:li:page:d_flagship3_company;w6mFNs7tSTyeX2lkBEvAJA==

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

Compare this creativity and action with the moribund bureaucracies and weak, unimaginative, timid leadership at DHS, EOIR, and DOJ. The wrong folks are running the immigration bureaucracy, and doing a really lousy job of it!

This Administration might “nominally claim” to recognize the importance of representation for asylum seekers and other immigrants and to encourage it; but, their actions tell a much different story.

The dysfunctional chaos at EOIR, culture of denial, “Aimless Docket Reshuffling” on steroids, poor personnel and staffing choices, failure to establish a constructive dialogue with NGOs and the pro bono bar, and the simply jaw-dropping, avoidable “extreme user unfriendliness of almost everything at EOIR” has been a huge “turn off” for those who might be considering taking on pro bono, or even low bono, cases. If anything, some practitioners have told me that they are cutting back on their Immigration Court work because it has become so stressful, all encompassing, and discouraging.

EOIR should NOT be operating in this insane manner in a Dem Administration! But, unhappy fact is that it is!

Here’s a chance to be on the front lines of the fight for democracy and social justice in America! Check out Immigrant Defenders Law Center!

🇺🇸 Due Process Forever!

PWS

02-16-23

🏴‍☠️ AMERICAN OUTLAWS: THE CONTINUING SAGA OF EOIR’S FLAWED DECADE-LONG QUEST TO DENY PROTECTION TO HONDURAN WOMAN — LATEST CHAPTER: BIA Rebuked By 1st Cir. For Not Complying With Court Order!

Dan Kowalski reports from LexisNexis Immigration Community:

CA1 on Evidence…Round 2! – Aguilar-Escoto II

Aguilar-Escoto II

“For the second time, petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate the Board of Immigration Appeals’ (“BIA” or the “Board”) rejection of her claim for withholding of removal. When this case was last before us, we vacated the BIA’s prior order and instructed the Board to consider the potentially significant documentary evidence submitted in support of Aguilar’s claim. See Aguilar-Escoto v. Sessions, 874 F.3d 334, 335 (1st Cir. 2017). Today, we conclude that the BIA again failed to properly consider significant documentary evidence. Consequently, we vacate the Board’s removal order and remand for further proceedings.”

[Hats off to Kenyon C. Hall, with whom Jack W. Pirozzolo, Sidley Austin, LLP, Charles G. Roth, National Immigrant Justice Center, and Carlos E. Estrada were on brief, for petitioner!]

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This case is a microcosm of everything that’s wrong about EOIR, a “captive,” denial-biased “court” system operating within the DOJ, an enforcement agency within the Executive Branch, over three different Administrations — two Dem and one GOP! But, there is more to this story!

THE REST OF THE STORY:

In 2013, this respondent appeared before an IJ and presented a well-documented claim for withholding of removal to Honduras based on domestic violence. Among the respondent’s documentation were a psychological report, three police reports, a medical report from Honduras, a protection order from a Honduran court, the respondent’s declaration, and affidavits from family members. In the first flawed decision, in 2014, the IJ denied the claim.

The respondent appealed to the BIA. In another flawed decision, entered in 2016, the BIA denied the appeal. In doing so, the BIA denied an asylum claim that the respondent did not make and ignored key documentary evidence that went to the heart of the respondent’s claim. This suggests that the BIA merely slapped a “form denial” on the case which reflected neither the nature of the case below nor the actual record before them. Immigration practitioners say this type of performance is all too common in the dystopian world of EOIR.

Consequently, the respondent, represented pro bono by NDPA stalwart Carlos E. Estrada, a solo practitioner, sought review in the First Circuit. That petition succeeded! In 2017, the First Circuit vacated the BIA’s erroneous decision and directed the BIA to redo the case, this time considering the material, independent evidence of persecution that the BIA had previously ignored.

At this point, the respondent and her attorney had every reason to believe that their ordeal was over and that justice, and potentially life-saving protection, was “just around the corner.” But, alas, those hopes were dashed!

The BIA botched it again! In 2018, in what appeared to be one of the BIA’s “standard any reason to deny” opinions, the BIA purported to “affirm” the 2014 flawed decision of the IJ. In doing so, “the BIA erred by failing to follow this Court’s [1st Circuit’s] instruction to independently consider on remand the documentary evidence and to determine whether that evidence sufficed to establish past persecution.” Basically a “polite description” of “contempt of court” by the BIA.

Among the problems, the BIA failed to mention or evaluate one of the police reports that went directly to the basis for the BIA’s denial. Indeed, in a rather brutal example example of just how un-seriously the BIA took the court’s order, they erroneously stated that there were only two police reports. Actually, the record contained THREE such reports — since 2013!

Faced with the need for yet a second trip to the First Circuit, pro bono solo practitioner Carlos Estrada was “stretched to his pro bono limits.” Fortunately, the amazing pro bono lawyers at Sidley Austin LLP and National Immigrant Justice Center (“NIJC”) heeded the call and assisted Estrada and his client in their second petition for review.

With help from this “team of experts,” for the second time, the respondent “bested” EOIR and DOJ in the Circuit! While conceding that the BIA had errored in not complying with the court order, OIL, now under the direction of Dem A.G. Merrick Garland, advanced specious “alternative reasons” for upholding the BIA’s second flawed decision. These were emphatically rejected by the First Circuit! That court also noted that the (supposedly “expert”) BIA had applied the wrong legal standard in the case!

A rational person might think that after nearly a decade, this “charade of justice” would finally end, and the respondent would get her long-delayed, thrice-erroneously-denied relief. But, that’s not the way this dysfunctional and disreputable system works (or, in too many cases, doesn’t).

The First Circuit “remanded” the case to EOIR a second time, thus giving the BIA a totally undeserved THIRD CHANCE to improperly deny relief. Who knows if they will, or when they might get around to acting.

But, within Garland’s dystopian system, which lacks quality control, doesn’t require recognized expertise in human rights from its “judges,” and tolerates a BIA dominated by Trump-appointed appellate judges known for their records of hostility to asylum and related forms of protection from persecution and/or torture, a result favorable to the respondent, within her lifetime, is far from guaranteed.

As Attorney Carlos Estrada summed it up to me, “I just couldn’t do it [the second petition for review] pro bono by myself. I’m a solo practitioner. Such a waste of time and effort.”

Indeed, Garland’s failure to institute even minimal standards of due process, fundamental fairness, impartiality, expertise in his EOIR “court” system is unfairly stretching scarce pro bono resources beyond the limits, as well as denying timely, often life-saving or life-determining justice to individuals.

In a fair, functional, professional system, Estrada, Sidley Austin, and NIJC could be helping others in dire need of pro bono assistance. The respondent could have been enjoying for the last decade a “durable” grant of protection from persecution instead of having her life “up in the air” because of defective decision-making at EOIR and ill-advised “defenses” by OIL. The system could be adjudicating new cases and claims, instead of doing the same cases over and over, for a decade, at three levels of our justice system, without getting them right.

If you wonder why Garland’s broken EOIR is running an astounding 2.1 million case backlog, it’s NOT primarily because of the actions of respondents and their lawyers, if any! It has much to do with “Aimless Docket Reshuffling,” in “full swing” under Garland, incredibly poor judicial administration by DOJ/EOIR, poor judging by too many incumbents who lack the necessary expertise and demonstrated commitment to due process and fundamental fairness, poor administrative and judicial practices, inadequate training, and a toxic “culture of denial and disrespect for immigrants’ rights” that has been festering for years!

Do YOU think that sagas like this represent a proper approach to “justice in America at the retail level.” I don’t! But, incidents like this occur on a daily basis at EOIR, even if most escape the public spotlight!

“Out of sight, out of mind!” But, sadly, not so for the individuals whose lives are damaged by this system and their long-suffering attorneys, whose plights continue to be studiously ignored by Garland and his lieutenants. (Has Garland EVER offered to meet with the private, pro bono bar to find out what really is happening in “his” courts and how he might fix it? Not to my knowledge!)

Hats way off to Carlos E. Estrada, Esquire; Kenyon C. Hall, Jack W. Pirozzolo, and the rest of the folks at Sidley Austin, LLP (I note that Sidley generously has provided outstanding pro bono briefing assistance to our “Round Table” in the past); and Charles G. Roth and his team at the National Immigrant Justice Center for this favorable outcome and for insuring that justice is done. Garland and the Dems might not care about justice for persons in the U.S. who happen to be migrants, but YOU do! That, my friends, makes all the difference in human lives and in our nation’s as yet unfulfilled promise of “equal justice for all.”

🇺🇸 Due Process Forever!

PWS

02-10-23

😟MONTANA IS “FLYOVER COUNTRY” FOR EOIR BUREAUCRATS: Due Process & Public Service For People Below, Out Of Sight, Out Of Mind! — 1,000 Mile Drives, Required In Person Hearings In Other States, Different Circuits, Different Rules Producing Inconsistent Results, Frustrated Lawyers — Human Lives & Justice In Large, Thinly Populated States Just More “Collateral Damage” From A Failed System! — Quoting Montanan NDPA Superstar 🌟 Kari Hong & Members Of The “Round Table!” 🛡⚔️

Carrie La Seur reports for the Daily Montanan:

https://dailymontanan.com/2023/02/05/without-any-immigration-courts-montana-is-tough-for-immigrants-looking-to-build-new-life/

Without any immigration courts, Montana is tough for immigrants looking to build new life

BY: CARRIE LA SEUR – FEBRUARY 5, 2023 9:58 AM

The drive from Billings to Las Vegas is nearly a thousand miles. That’s 14 to 15 hours of windshield time, winding through some of the roughest, most isolated country in the continental U.S.

Imagine that U.S. forces recently evacuated you from Afghanistan, where the advancing Taliban would have killed you as a member of the Afghan military who fought them alongside Americans. You retreated under orders, unable to reach your wife and children, left behind in hiding in Kabul. Now, alone in Montana, struggling to improve your English, you must make the journey to Las Vegas in winter for your first immigration hearing.

You’ve come through war, exile from the only home you’ve ever known, separation from your family, and imprisonment in the first country you arrived in, but the U.S. Customs and Immigration Service still has a few curveballs for you.

You’ve had only a few weeks’ notice of your hearing, barely time to figure out how to make the trip. You’ve managed to borrow a car, but the owner has to work and can’t come with you. Flights are wildly expensive and you’ve survived first on savings and charity, now on a temporary work permit, so the road is the best option, but the drive is risky.

You’re lucky enough to have a pro bono lawyer appearing for you by video, but you’ve never met her in person. For most people in your situation, there is no lawyer. Although your life and those of your family are on the line, you have no right to representation.

This is the situation for dozens, possibly hundreds, of new Montana residents from Afghanistan, Ukraine, Venezuela, and other nations in crisis, including family members of U.S. citizens. The U.S. allows them to enter and remain in this country because they have credible fears of persecution in their home country and therefore a right under U.S. and international law to seek asylum. Montana nonprofits and religious organizations are scrambling to respond.

Since the U.S. pullout from Afghanistan in 2021, more than 76,000 Afghan nationals have arrived in the U.S., the largest wave of wartime evacuees since the fall of Saigon during the Vietnam War. The New York Times recently published a map of the distribution of Afghan refugees, with a few pinpoints in Montana, compared to thousands of arrivals in San Diego, Houston, and D.C. Many more are waiting for permission to come. In most cases, their lives are in danger from the Taliban.

Until 2016, a Montana resident in immigration proceedings could go to Helena, where a traveling immigration court staff heard cases several days a month. Budget cuts eliminated the court toward the end of the Obama administration. There was pressure to shift resources to the southern border, so staff relocated from more northern locations.

“Detailing” judges, as it’s called when judges move to different locations to hear cases, is expensive (travel, hotel, office space). According to the agency, immigration judges handle about 700 cases a year – the backlog is approaching 2 million – so Montana’s relatively light caseload makes the Helena court low on the priority list.

Now, Salt Lake City, Las Vegas, and Denver are common immigration court assignments for Montana residents. Personal appearances are usually mandatory. Travel is a costly burden for displaced people struggling to adapt to a new country. The distance is also a burden for lawyers, who often can’t spare the time to travel for brief hearings that are frequently rescheduled at the last minute. There can be jurisdictional problems, too. Montana is in the Ninth Circuit, a huge appellate region that includes all the states on the west coast, Nevada, and Idaho.

In the 9th Circuit, judges must give greater weight to testimony about what happened in other countries, and case law makes it more difficult to find that an immigration witness isn’t credible. That’s fine if a Montana resident goes to a hearing in Las Vegas, also in the 9th Circuit, but Salt Lake City and Denver are in the 10th Circuit. If a judge rules against a Montana resident using 10th Circuit law, when 9th Circuit law would have given a more favorable result, that’s just bad luck.

Many Montana lawyers may not be familiar with 10th Circuit law, making it that much more difficult for Montana residents to find a qualified attorney.

Montana lawyers with expanding immigration practices are beginning to ask, why Helena’s immigration court couldn’t be restored? Kari Hong, a Missoula attorney with the Florence Project, an immigration rights organization, points out that many clients have trouble finding qualified lawyers where multiple jurisdictions are involved, and differences in appellate law give some Montana residents worse judicial outcomes based on a random court assignment.

As a practitioner, Hong notes, it’s harder to show documents in a remote hearing, or be sure that everyone is looking at the same document. Interpretation is more difficult. Not being in the courtroom with a client makes it hard to establish rapport, and make sure that the judge is hearing everything. Attorneys are legitimately concerned, says Hong, about providing effective counsel in remote hearings that could be located anywhere in the country.

The U.S. Customs and Immigration Service has office space in Helena, where it handles immigration biometrics checks. so the cost of bringing in an itinerant immigration judge to handle Montana residents’ cases might be only a staffing and travel expense. But the appointment of more immigration judges and their assignments have become political issues wrestled over in Washington, D.C.

Paul Wickham Schmidt, a Wisconsin native, served as a career immigration lawyer and judge, chaired the Board of Immigration Appeals in the 1990s, and is now a law professor at Georgetown and formerly at George Mason University. He writes about dysfunction in the U.S. immigration system on his blog, Immigration Courtside. In an interview, he’s outspoken about how immigration courts have become a disgrace to the fundamental American value of justice for all.

“Today’s DOJ has allowed immigration courts to become weaponized as a tool of immigration enforcement,” says Schmidt. “For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial immigration judges as ‘in partnership’ with DHS enforcement. Attorney General (Merrick) Garland has done little to dispel this notion.”

Schmidt talks about the “Dred Scottification” of refugees, referring to the US Supreme Court’s 1857 decision in Dred Scott v. Sandford, holding that all people of African descent were not U.S. citizens and therefore could not sue for their rights in U.S. federal court.

The current U.S. immigration system, k says, treats refugees as sub-human, unworthy of rights long enshrined in U.S. and international law. It uses the court system to send political messages (for example, “Don’t come”) to refugees, turning the courts into political weapons.

Americans, says Schmidt, should be disgusted.

Part of the problem in maintaining the integrity of immigration courts is that immigration judges are appointed by the Attorney General and serve at his or her pleasure. They don’t have the independence of federal judges confirmed by the U.S. Senate under Article III of the Constitution, or the protections of Article I judges, like bankruptcy judges. They don’t control their dockets. Scheduling is done by non-judicial administrators, who book judges and lawyers so tightly that there’s no way, according to Schmidt, to do their jobs competently.

Immigration courts also lack necessary administrative support.

Hiring court administrators is done through a slow, difficult hiring process, and administrators struggle with inadequate space and tech support, which handicaps the whole immigration court system. In one example of the slow pace of progress in the immigration system, cases handled by the Executive Office for Immigration Review finally went electronic in 2022 – a quarter century after the U.S. federal courts transitioned to electronic filing, using a different system.

Many immigration judges are shouting for reform. Judge Dana Leigh Marks of the San Francisco Immigration Court, a past President of the National Association of Immigration Judges, says: “Immigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”

Highly qualified people continue to leave the agency rather than uphold a farce.

“There are many of us who just feel we can’t be part of a system that’s just so fundamentally unfair,” said Ilyce Shugall, who quit her job as an immigration judge in San Francisco in 2019 and now directs the Immigrant Legal Defense Program at the Justice & Diversity Center of the Bar Association of San Francisco. “I took an oath to uphold the Constitution.”

Schmidt writes on his blog about the U.S.’s “disgracefully dysfunctional immigration courts,” which offer no right to legal representation. Having an attorney in immigration proceedings makes a huge difference, statistically speaking. For recently arrived women with children fleeing violence, the success rate of represented applicants is 14 times higher.

To fix the major problems with the system, Schmidt has a short list of big changes he’d like to see:

Create an Article I immigration court system. Article I courts are legislative courts created by Congress, without full judicial power to decide Constitutional questions, but with enough independence not to be controlled by political appointees.

The Board of Immigration Appeals needs to become a true appellate court.

Reverse reforms put in place by Attorneys General William Barr and John Ashcroft, intended to reduce the capacity of the immigration courts to do the work assigned to them by Congress.

Remove judges who deny 100% of asylum applications.

At the management level of the agency, hire professional court managers focused on providing due process and making the system work efficiently.

Improve automation, e-filing, and information-technology capability.

Montana residents are a tiny constituency of perhaps hundreds in the vast U.S. immigration system, processing millions of people, but they demonstrate what’s broken. Somewhere under the Big Sky is an Afghan evacuee who saved military aircraft from falling into the hands of the Taliban during the U.S. retreat from Kabul. He’s desperately worried about his wife and children trapped in Kabul, where the Taliban have identified them as the family of a soldier who supported the Americans.

They exist in hiding, while the Taliban-controlled passport agency charges thousands of dollars to produce a legal travel document. As his asylum application winds its way through the system, he texts his wife every day.

“All I can think about is making them safe,” he says.

REPUBLISH

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Carrie La Seur is a Billings novelist and attorney, descended from 1860s Montana settlers and a long line of one room schoolhouse educators. She works pro bono with asylum seekers. She can be found on Twitter @claseur

MORE FROM AUTHOR

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Thanks, Carrie!

“All I can think of is making them safe.” Given the facts in Carrie’s article, this Afghan case should have been a “no-brainer” asylum grant at the USCIS Asylum Office. Having made it to EOIR, it would be a candidate for a 30 minute “stipulated grant” in a properly functioning and professionally led Immigration Court system.

That cases like this, clear asylum grants that shouldn’t even reach EOIR, linger in the system, is symptomatic of the endemic dysfunction in America’s Immigration Courts. It also illustrates the failure of the Biden Administration and America’s “top lawyer,” A. G. Merrick Garland, to aggressively stand up for the legal rights of immigrants and to apply common sense, expertise, and practical scholarship to our dysfunctional immigration and human rights bureaucracy.

But, all EOIR can think about is how human lives — and justice — in Montana and elsewhere really aren’t very important in the overall bureaucratic scheme. And, it’s not not like A.G. Merrick Garland and his minions, safely ensconced in their offices at 10th & Penn in downtown DC, are thinking about the human carnage left in EOIR’s dystopian wake, in Montana and elsewhere!

We all “get” that Montana’s problems are “small potatoes” in the context of EOIR’s ever-expanding 2.1 million case backlog! Yet, EOIR could serve Montana in a way that preserves due process, promotes consistency, encourages representation, and delivers “good public service” without materially affecting their backlogs elsewhere or “breaking the bank.”

EOIR’s approach to the “real problems” of the “small-population” State of Montana and its very human residents is sadly reflective of Washington’s overall approach to immigration and human rights: We won’t solve the “little problems” that could improve individual lives because we can’t solve the “big problem” of so-called “comprehensive immigration reform.”

I don’t buy it! There are plenty of ways that DOJ/EOIR could successfully address many of the “little problems” that would improve administration and public service in places like Helena. DOJ/EOIR does not have a “stellar record” for competent management or fiscal responsibility, to say the least.

For example, the DOJ Office of Inspector General recently found that EOIR had for years mismanaged multi-million dollar technology contracts.https://wp.me/p8eeJm-87P.

They have also wasted money on so-called “Immigration Judge Dashboards” so that they could monitor IJ “performance” under much-criticized and now abandoned “production quotas.”

Certainly, with a little administrative ingenuity, EOIR could scrape together the modest amount of resources it would take to conduct periodic hearings in Helena and thereby provide due process to Montanans caught up in EOIR’s dysfunctional system.

Without affecting overall backlogs or big budget increases, EOIR could:

Bring back one or more retired IJ’s as “rehired annuitants” to work part time on the Helena docket; or
Designate one or more IJs at the numerous so-called “EOIR Adjudication Centers” to hear cases in Helena by Televideo; or
Use Helena for piloting an authorized (but, to my knowledge, never implemented) “phased retirement” program for training and mentoring new IJ’s by those seeking to reduce their work hours as they move toward retirement; or
“Slim down,” or better yet eliminate, the unnecessary and duplicative “Office of Policy” created at EOIR HQ under Trump (why would an agency comprised of supposedly independent quasi-judicial officials need a “Bureaucratic Politburo?”) and allocating the resources to case adjudication — supposedly the ”lifeblood of EOIR;” or
Reprogram some of the unnecessary, non-adjudicating, fancy-titled “spear carrier” positions wandering the halls of the bloated, yet inept, EOIR bureaucracy in Falls Church.

Those are just for starters. Like its failed counterpart, USCIS, EOIR needs an independent re-examination of processes, quality control, and accountability —all of which currently are failing the public — in Montana and elsewhere! EOIR also needs new, dynamic, professional, problem-solving judicial administration by experts appointed from OUTSIDE the dysfunctional EOIR bureaucracy and the hapless gang of politicos at “Main Justice.”

The only kind of “equal justice” that seems to be an objective at EOIR today is to make sure that public service is equally bad across America.

Notably, as shown in Carrie’s article, the EOIR debacle is affecting virtually every county and every nook and cranny in America. No American community is too far removed from the DOJ/EOIR “bureaucracy of pain and failure” to avoid the adverse consequences of this monumental, and unnecessary, meltdown at the “retail level” of American Justice; even those humans residing in “EOIR Flyover Country!”

🇺🇸 Due Process Forever!

PWS

02-08-23

🇺🇸THE GIBSON REPORT — 11-29-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — HEADLINER: After Two Years Of Dithering & Ongoing Human Rights Abuses, Biden Administration Heading For Failure In Re-Instituting Rule Of Law For Legal Asylum Seekers @ S. Border, According To Many Experts!

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

NEWS

LITIGATION & AGENCY UPDATES

RESOURCES

EVENTS

NEWS

Biden administration preps for a rocky end to Trump-era immigration rule

Politico: Experts in the immigration field say they’re expecting a stressful and chaotic transition when a court-ordered deadline to end the Trump directive is hit, one that could drive a new rush to the border and intensify GOP criticism. See also States move to keep court from lifting Trump asylum policy.

U.S. talking to Mexico, other countries to facilitate return of Venezuelan migrants

Reuters: The United States is in talks with Mexico and other countries to facilitate the return of Venezuelan migrants to their homeland, a senior U.S. official said in a call with reporters on Tuesday.

ICE Detains More Individuals

TRAC: The South Texas Family Residential Center in Dilley, Texas, which currently houses single adults (mostly females) has more than doubled the number of individuals it is holding since September. ICE reports this facility run by CoreCivic now has the largest average daily population of detainees (1,562) in the country

Homeland Security chief could face impeachment in GOP-led House if he does not resign, Kevin McCarthy warns

CBS: McCarthy also threatened to use “the power of the purse and the power of subpoena” to investigate and derail the Biden administration’s immigration and border policies, saying Republican-led committees would hold oversight hearings near the U.S.-Mexico border.

LITIGATION & AGENCY UPDATES

CA2 CAT Remand: Lopez De Velasquez V. Garland

LexisNexis: “Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture.”

CA2 on CAT, Honduras: Garcia-Aranda v. Garland

LexisNexis: “Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim.”

3rd Circ. Says Jargon, Other Flaws Didn’t Prejudice CAT Bid

Law360: The Third Circuit has backed a decision denying a Dominican man’s bid for deportation relief based on his fear of being tortured, saying the procedural flaws he claimed tainted his proceedings — including the use of legal jargon and a videoconferencing glitch — did not prejudice him.

8th Circ. Finds Persecution Evidence Lacking In Asylum Bid

Law360: An English-speaking Cameroonian lost her chance to stay in the U.S. after the Eighth Circuit ruled that she failed to provide enough evidence showing that military officers had attacked her for her presumed support of Anglophone separatists.

CA9 Appeal Waiver Remand: Phong v. Garland

LexisNexis: “Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance.”

No Second Bite At Bond Needed For Detainee, 9th Circ. Says

Law360: A divided Ninth Circuit on Monday ruled that the federal government was not constitutionally required to provide a Salvadoran immigrant a second bond hearing amid his prolonged detention during removal proceedings, while also bearing the burden to show he was a flight risk or danger to the community.

Immigrants, DHS settle case seeking activist targeting info

AP: The U.S. Department of Homeland Security has agreed to pay a Vermont-based immigrant advocacy organization $74,000 in legal fees to settle a lawsuit seeking information about whether advocates were being targeted by immigration agents because of their political activism.

USCIS Extends and Expands Fee Exemptions and Expedited Processing for Afghan Nationals

USCIS: Today, U.S. Citizenship and Immigration Services announced it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals.

RESOURCES

NIJC’s Fall Pro Bono Asylum Training, Nov. 2022

DHS: State Immigration Data Sheets include immigration benefits data across topics for all 50 states

EVENTS

11/29/22 Building an Asylum Claim

11/30/22 CGRS Preserving the Record for Appeal in a Fear-of-Return Claim

12/6/22 Emerging Strategies for Prolonged Detention

12/6/22 Immigration Reform: Might Past Be Prologue?

12/7/22-12/8/22 Defending Survivors: Strategies for Immigrant Survivors Seeking Justice

12/7/22 Parole in Immigration

12/13/22 The Effects of Absences on Naturalization

12/13/22 USCIS: Asylum Quarterly Stakeholder Engagement

12/14/22 Hot Topics in Asylum Law

12/14/22 CLINIC Working Through Vicarious Trauma With Self-Care Strategies

12/15/22 NLG: Obtaining Criminal Records with guest speaker, Gabriela Kahrl

1/10/23 CLINIC: Comprehensive Overview of Immigration Law (COIL)

1/11/22 Preventing and Responding to RFEs and NOIDs for U and VAWA Cases

1/19/23 NLG: Top Ethical Issues Facing Legal Representatives in Removal Hearings with guest speaker, Retired Immigration Judge Dana Marks

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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Folks, it’s about re-instituting the law and screening system for legal asylum seekers which was in effect, in one form or another, for four decades before being illegally abrogated by the Trump Administration’s abusive use of Title 42. Outrageously, after promising to do better during the 2020 election campaign, the Biden Administration has “gone along to get along” with inflicting massive human rights violations under the Title 42 facade until finally ordered to comply with the law by U.S. District Judge Emmet G. Sullivan last month.

One of Judge Sullivan’s well-supported findings was that the scofflaw actions by both Trump and Biden officials had resulted in knowingly and intentionally inflicting “dire harm” on legal asylum applicants:

Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”

Contrary to the “CYA BS” coming from Biden Administration officials, making the law work at the Southern Border requires neither currently unachievable “reform” legislation nor massive additions of personnel! It does, however, require better personnel, expert training, accountability, smarter use of resources, and enlightened, dynamic, courageous, principled, expert leadership currently glaringly lacking within the Biden Administration.

The Administration’s much ballyhooed, yet poorly conceived, ineptly and inconsistently implemented, “revised asylum regulations” have also failed to “leverage” the potential for success, thus far producing only an anemic number of “first instance” asylum grants. This is far below the rate necessary for the process significantly to take pressure off the backlogged and dysfunctional Immigration Courts, one of the stated purposes of the regulations! Meanwhile, early indications are that Garland’s ill-advised regulatory time limits on certain arbitrarily-selected asylum applications have further diluted quality and just results for EOIR asylum decisions. That, folks, is in a system where disdain for both of these essential judicial traits is already rampant!

It’s not rocket science! It was well within the capability of the Biden Administration to establish a robust, functional asylum system had it acted with urgency and competency upon taking office in 2021:

Better Asylum Officers at USCIS and Immigration Judges at EOIR — well-qualified asylum experts with practical experience in the asylum system who will timely recognize and grant the many valid asylum claims in the first instance;
Cooperative agreements with NGOs and pro bono organizations to prescreen applications in an orderly manner and represent those who can establish a “credible fear;”
A new and improved BIA of qualified “practical scholars” in asylum law who will establish workable precedents and best practices that honestly reflect the generous approach to asylum required (but never carried out in practice or spirit) by the Supremes in Cardoza-Fonseca and the BIA itself in its long-ignored and consistently misapplied precedent in Mogharrabi;
An orderly refugee resettlement program administered under the auspices of the Feds for those granted asylum and for those whose claims can’t be expeditiously granted at the border and who therefore must present them in Immigration Court at some location away from the border.

The Biden Administration has nobody to blame but themselves for their massive legal, moral, and practical failures on the Southern Border! With House GOP nativist/restrictionists “sharpening their knives,” Mayorkas, Garland, Rice, and other Biden officials who have failed to restore the legal asylum system shouldn’t expect long-ignored and “affirmatively dissed” human rights experts and advocates to bail them out!

The massive abrogations of human rights, due process, the rule of law, common sense, and human decency that the GOP espouses — so-called enforcement and ineffective “deterrence” only approach — will NOT resolve the humanitarian issues with ongoing, often inevitable, refugee flows!

But, the Biden Administration’s inept approach to human rights has played right into the hands of these GOP White Nationalist politicos. That’s an inconceivable human tragedy for our nation and for the many legal refugees we turn away without due process or fair consideration of their life-threatening plight! These are refugees — legal immigrants — who should be allowed to enter legally and help our economy and our nation with their presence.

If we want refugees to apply “away from the border,” we must establish robust, timely, realistic refugee programs at or near places like Haiti, Venezuela, and the Northern Triangle that are sending us refugees. In the Refugee Act of 1980, Congress actually gave the President extraordinary discretionary authority to establish refugee processing directly in the countries the refugees are fleeing. This was a significant expansion of the UN refugee definition which requires a refugee to be “outside” his or her country of nationality. Yet, no less than the Trump and Obama Administrations before, President Biden has failed to “leverage” this powerful potential tool for establishing orderly refugee processing beyond our borders!

Meanwhile, down on the actual border, a place that Biden, Harris, Mayorkas, Garland, Rice, and other “high level architects of failed asylum policies” seldom, if ever, deign to visit, life, such as it is, goes on with the usual abuses heaped on asylum seekers patiently waiting to be fairly processed.

A rational observer might have thought that the Biden Administration would use the precious time before Dec. 22, 2022, reluctantly “gifted” to them by Judge Sullivan, to pre-screen potential asylum seekers already at ports of entry on the Mexican side. Those with credible fear and strong claims could be identified for orderly entries when legal ports of entry (finally) re-open on Dec. 22. Or, better yet, they could be “paroled” into the U.S. now and expeditiously granted asylum by Asylum Officers.

This would reduce the immediate pressure on the ports, eliminate unnecessary trips to backlogged Immigration Courts, and expedite these refugees’ legal status, work authorization, and transition to life in the U.S.

I have no idea what the Biden Administration has done with the time since Judge Sullivan “gifted” them a stay. The only noticeable actions have been more BS excuses, blame-shifting, and lowering expectations.

But, in reality, by their indolent approach to humanitarian issues and the law, in the interim the Administration has consciously left the fate of long-suffering and already “direly-harmed” legal asylum seekers to the Mexican Government. According to a recent NBC News report, the Mexican Government forcibly “rousted” many awaiting processing at a squalid camp near the border and “orbited them’ to “who knows where.” https://www.nbcnews.com/now/video/mexican-authorities-evict-venezuelan-migrants-from-border-camps-155516485544

Judge Sullivan might want to take note of this in assessing how the Biden DOJ has used the “preparedness time” that he reluctantly granted them following his order.

🇺🇸 Due Process Forever!

PWS

11-29-22

⚖️ REPRESENTATION WORKS IN IMMIGRATION COURT: Why Isn’t Garland’s EOIR Promoting & Enabling It Rather Than Engaging In More “Aimless Docket Reshuffling?”

Atenas Burrola Estrada
Author
American Immigration Council
PHOTO: American immigration council.org

https://immigrationimpact.com/2022/10/27/immigrants-win-cases-pro-bono-justice-campaign/

71% of Immigrants Win Their Cases Thanks to Pro Bono Volunteers with the Immigration Justice Campaign

Posted by Atenas Burrola Estrada | Oct 27, 2022 | Due Process & the Courts, Immigration Courts

Every year at the end of October, legal service providers come together to celebrate Pro Bono Week. It is a dedicated opportunity to acknowledge the amazing work that our volunteers do—work that is the foundation of the American Immigration Council’s Immigration Justice Campaign. In an immigration system that is set up to make it almost impossible for certain groups of people to win, pro bono volunteers are one of the bastions helping overwhelmed legal service providers hold the line for due process and justice.

From the solo practitioner doing pro bono work to learn a new skill, to the corporate law firm partner who has incorporated pro bono as part of their practice for two decades, our volunteers run the gamut. Everyone makes a difference—from the law students interpreting between classes and homework to the community members who volunteer simply because they care. Every single volunteer is integral to the Justice Campaign’s work—and we thank them for their time and dedication.

Since its creation in 2017, the Justice Campaign and our volunteers have walked alongside hundreds of immigrants in their fight for justice and due process in the United States.

This year alone, over 200 Justice Campaign volunteers have:

Worked on 221 cases for detained individuals in 14 detention centers across the country.

Worked on 335 cases for non-detained individuals across 32 states of residence.

Served clients from 30 countries of origin who speak 19 different languages.

And with these volunteers’ help:

71% of clients have won their immigration case.

85% of clients asking for release from detention have won that release from an immigration judge.

Nationally, only 40% of people win their immigration cases, and only 32% win their release from an immigration judge. Those numbers are even lower for people without an attorney. Detained immigrants without an attorney only have about an 11% chance of winning release.

This small example of Justice Campaign clients and volunteers shows the immediate impact that pro bono work has on clients’ lives. Without the dedication of our pro bono volunteers, many of these individuals would have had to move forward alone. Statistically speaking, that means most probably would have lost.

The past several years have been difficult for most of the world in so many ways. And yet, pro bono volunteers continue showing up every day, allowing the Justice Campaign to continue serving clients, help people get out of detention, fight their cases—and for many, win. To the hundreds of volunteers who have worked with the Justice Campaign, this year and every year, thank you. We could not do this work without you.

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This reality bears little resemblance to the myths and false narratives about the impact of representation put out by nativists and parroted by EOIR during the Trump years. Nor does it match the gimmicks and poor planning of the Biden Administration, which continues to operate on the false assumption that the vast majority of asylum cases in Immigration Court will be denials.

While this sample is probably too small to be statistically valid, it certainly supports the view that the current mess at EOIR unjustly leaves behind many asylum seekers and other individuals entitled to relief just because they are unrepresented or poorly represented. It also make them much more likely to remain in detention, costly for both them and the Government.

It would make sense for EOIR and the Biden Administration to work cooperatively with the pro bono and low bono bar to prioritize and increase representation and to then prioritize represented cases that are most likely to result in grants of relief. Those cases are likely to proceed faster (without any due-process-denying “gimmicks”), less likely to be appealed, and would seldom reach the Courts of Appeals. An overall efficient way to use resources.

Additionally, EOIR should be working more closely with VIISTA Villanova and others who have developed “scalable” programs for training accredited representatives to increase quality representation in Immigration Court.

Instead, with yet another round of mindless “Aimless Docket Reshuffling” on steroids, EOIR has instigated an unnecessary and counterproductive “pitched battle” with advocates across America. Go figure!

🇺🇸Due Process Forever!

PWS

11-04-22

☠️ GARLAND’S QUASI-JUDICIAL TORTURE CHAMBERS — FROM COAST TO COAST, EOIR APPLIES WRONG LEGAL STANDARDS, IGNORES EVIDENCE IN EFFORT TO ILLEGALLY SEND PEOPLE TO TORTURE!

Star Chamber Justice — If he survives Garland’s EOIR, this guy faces more torture if wrongfully removed to torture elsewhere. “Justice”
Star Chamber
Style

“Sir Jeffrey” Chase reports on H.H. v. Garland, a case in which the Round Table filed an amicus brief in behalf of the respondent. Many thanks to our friends Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on the brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals.

H.H. V. Garland

For the reasons detailed above, we conclude that the BIA erred by: (1) applying the incorrect standard of review to uphold the IJ’s denial of CAT relief as to Honduras, in a misguided effort to accommodate the IJ’s error of law in requiring a showing of willful acceptance rather than willful blindness; (2) improperly failing to address H.H.’s argument that he would likely be tortured by or at the instigation of Honduran officials; and (3) failing to meaningfully address H.H.’s argument that MS-13 members may act under color of law.21 Accordingly, we grant the petition for review, vacate the BIA’s decision insofar as it denied H.H. deferral of removal to Honduras, and remand the case for further proceedings consistent with this opinion.

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

Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit.

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-cat-guatemala-de-leon-lopez-v-garland#

“Risvin Valdemar De Leon Lopez (“De Leon”), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) order denying his application for relief under the Convention Against Torture. We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.”

[Hats off to Karla Kraus!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Almost every time I “feature” the ongoing legal and operational disaster @ EOIR, Garland furnishes me with concrete examples. https://immigrationcourtside.com/2022/10/22/%e2%98%a0%ef%b8%8f%e2%9a%b0%ef%b8%8f%f0%9f%92%80garlands-star-chambers-slow-violence-on-people-of-color%f0%9f%a5%b5-bias-bad-law-bungling-bureaucracy/

These are two “doozies” from last Friday!

These aren’t “minor bureaucratic matters,” no matter how much Garland and his “clueless crew” over @ DOJ might want to treat them that way and hope they will go away! They won’t! Not if the thousands of us involved in the due process, fundamental fairness, and racial justice for all movement have anything to say about it (e.g., the “NDPA”)!

And we will continue to speak out against the parody of justice @ Garland’s EOIR! It’s a disingenuous and disgraceful performance by a Democratic Administration that will have “down the line” consequences!

While the Trump Administration admittedly left EOIR in complete shambles, that doesn’t excuse the Biden Administration’s failure to fix it. It’s not “rocket science!” But, there is no way that the “Clown Show” 🤡 that Garland has chosen to run and staff EOIR (many inexplicably “held over” from the Sessions/Barr debacle) can fix it!

These are literally life and death cases in which Garland’s “faux expert” BIA “pretzels” the law, misconstrues facts, and “selectively reads” records to reach wrong results that deny protection and decree deportation! How is this acceptable performance from any tribunal, let alone one that is supposed to insure justice for those whose lives are on the line? How is this acceptable performance from a Democratic Administration that claimed fealty to human rights and racial justice, but takes neither seriously when it comes to EOIR?

There are plenty of “practical scholar experts” out here in the non-governmental sectors who would make much better appellate and trial judges, and administrators, than many of those Garland is inflicting on migrants and their attorneys.

What’s wrong with the Biden Administration? What’s “right” about failed justice @ Justice?”

The poor performance of Garland as the “steward” of the Immigration Courts at EOIR is a threat to humanity, democracy, and a colossal waste of judicial and litigation resources at all levels of our justice system!

Alfred E. Neumann — Maybe Merrick Garland SHOULD worry about running “America’s worst courts” and inflicting life-threatening injustice on his fellow humans!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-23-22

THE GIBSON REPORT — 10-10-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — AMONG HEADLINERS: Ignoring Kids At Risk; Biden’s Marihuana Pardon Unlikely To Help Many Migrants; Garland’s DOJ On Wrong Side Of IJ “Muzzling” Suit!

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

NEWS

LITIGATION & AGENCY UPDATES

RESOURCES

EVENTS

NEWS

Appeals Court Says DACA Is Illegal but Keeps Program Alive for Now

NYT: The decision from the three-judge panel on the U.S. Court of Appeals for the Fifth Circuit — one of the country’s most conservative federal appellate courts — affirmed a 2021 lower court decision. The Biden administration will need to continue its legal fight to enroll new applicants in the program, called the Deferred Action for Childhood Arrivals, or DACA.

Biden’s marijuana pardon not likely to help many immigrants with deportation cases

SD Union-Trib: Simple marijuana possession is usually charged at the state rather than federal level, so if governors follow Biden’s lead, there could be a wider impact on immigration court cases…Biden’s Thursday proclamation also explicitly says that undocumented noncitizens are not eligible for the pardon.

New York Faces Record Homelessness as Mayor Declares Migrant Emergency

NYT: Mayor Eric Adams stepped up calls for state and federal aid as the number of people in city shelters topped 61,000. See also Democrat-led Texas city steps up migrant busing to New York, outpacing Republican effort; Documents: Florida migrant transport planning began in July.

“A Failure on All Our Parts.” Thousands of Immigrant Children Wait in Government Shelters.

ProPublica: The public has largely stopped paying attention to what’s happening inside shelters and other facilities that house immigrant children since President Donald Trump left office, and particularly since the end of his administration’s zero tolerance policy, which separated families at the southern border.

Migrants from three countries are driving the spike in encounters at the southern border, swamping a backlogged immigration system

CNN: Migrants from just three countries – Venezuela, Nicaragua and Cuba – made up about 56,000 of those encounters, or about 28 percent, federal data shows. See also US immigration: Why Indians are fleeing halfway around the world.

Blinken Announces Aid for Migrants, Refugees

VOA: Shortly before attending OAS ministerial talks on the perplexing question of migration in the western hemisphere, Blinken told reporters of “new humanitarian and bilateral and regional assistance” to the tune of $240 million. See also United States fell far short of refugee goal last fiscal year

Critic of Biden border policy in line to oversee DHS budget

Roll Call: With Cuellar in line to be the top Democrat in the next Congress on the House Homeland Security Appropriations Subcommittee, which oversees the Immigration and Customs Enforcement and Customs and Border Protection budgets, some Democrats and advocacy groups are growing concerned.

Border agents fired fatal shots after migrant grabbed weapon, FBI says

WaPo: A Mexican man who was shot fatally inside a Border Patrol station in Texas this week had grabbed an “edged weapon” off a desk inside the facility and continued to approach U.S. agents after they attempted to stop him with a Taser, the FBI said in a statement late Wednesday.

2 Russians Seek Asylum in US After Reaching Remote Alaska Island

VOA: Two Russians who said they fled the country to avoid military service have requested asylum in the U.S. after landing in a small boat on a remote Alaska island in the Bering Sea, U.S. Sen. Lisa Murkowski’s office said Thursday.

Undaunted by DeSantis, immigrant workers are heading to Florida to help with hurricane cleanup

CNN: Word that immigrants are now coming to help clean up some of his state’s most storm-ravaged communities hasn’t softened the governor’s stance.

LITIGATION & AGENCY UPDATES

High Court Won’t Review ‘Unfair’ Deadline For Deported Man

Law360: The U.S. Supreme Court on Monday turned away a deported Salvadoran man’s bid to look into an allegedly “unfairly” crafted deadline for filing deportation order reconsideration requests, ending his decades-long hope of returning to the U.S.

5th Circ. Affirms Toss Of DACA, Asks For Review Of Final Rule

Law360: The Fifth Circuit on Wednesday affirmed a Texas judge’s ruling that vacated the Obama administration’s Deferred Action for Childhood Arrivals program, which has protected some young immigrants from deportation, and barred new applicants, but asked the lower court to review the Biden administration’s recent final rule on the DACA program.

CA5 On Evidence, CAT, Cameroon: Ndifon V. Garland

LexisNexis: Ndifon claims the BIA failed to consider country conditions evidence when separately analyzing his CAT claim. We agree.

CA9 on Consular Reviewability: Muñoz v. Dept. of State

LexisNexis: Because we conclude that the government failed to provide the constitutionally required notice within a reasonable time period following the denial of Asencio-Cordero’s visa application, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability.

Matter Of Bador, 28 I&N Dec. 638 (BIA 2022)

LexisNexis: A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition

Minn. Judge Ends Migrant Detention Suit, After $80K Deal

Law360: A Minnesota federal judge ended an American Civil Liberties Union-backed suit alleging that U.S. Customs and Border Protection assaulted and degraded two teenagers in its custody, after the agency agreed to pay the girls $80,000 to resolve the claims.

Fla. Seeks Trial Over Alleged US Policy Not To Detain Migrants

Law360: Florida pushed for a trial to resolve its contention that the Biden administration has a policy of releasing immigrants subject to detention, but asked a federal judge to first declare that the state has standing to challenge the alleged policy.

Feds Want Immigration Judges’ ‘Muzzled’ Speech Suit Axed

Law360: The head of a U.S. Department of Justice office on Friday asked a Virginia federal judge to nix a suit filed by an immigration judges association claiming they are “muzzled” by a policy that they say bars them from discussing their personal views on immigration, contending that a new policy encourages speech and simply requires supervisory approval.

USCIS 30-Day Notice and Request for Comment on USCIS Online Account Access

AILA: USCIS 30-day notice and request for comment on USCIS’s Online Account Access system, formerly called Identity and Credential Access Management (ICAM). Comments are due 11/7/22.

CBP Announces CDC Screening of Individuals with Travel Nexus to Republic of Uganda

AILA: Following an outbreak of Ebola in the Republic of Uganda, the CDC announced enhanced public health screening for flights departing after 11:59 pm (ET) on 10/10/22, for flights carrying travelers with nexus to Uganda. Said flights will be funneled through JFK, EWR, IAD, ATL, and ORD.

RESOURCES

NIJC: Frequently Asked Questions: Deferred Action For Childhood Arrivals (DACA)

AILA: Practice Alert: Afghan Asylum Applicants Reporting Delayed Receipt of Interview Notices and Shortage of Qualified Interpreters

AILA: Featured Issue: Protecting Dreamers

AILA: Featured Issue: Migrant Protection Protocols (MPP)

AILA: AILA Asylum Online Course Modules

CLINIC: Frequently Asked Questions: Form I-134

Cardozo: Detained Individual Survey on Language Access in Law Library and Medical Care in Detention

DHS OIG: The DHS Unified Coordination Group for Operation Allies Welcome Coordinated Afghan Resettlement but Faced Challenges in Funding and Authority

DOJ: Reminders for DACA Recipients and Employers that Work Authorization Continues After the Fifth Circuit’s DACA Decision

USCIS Updates Military Naturalization Guidance for Calixto Class Members

USCIS: Asylum Quarterly Engagement and Listening Session Script & Talking Points

USCIS: Statement from USCIS Director Ur M. Jaddou on DACA Ruling

USCIS: Calixto Settlement Agreement and Military Accessions Vital to National Interest Naturalization Applicants

EVENTS

10/6/22-10/19/22 CLINIC: Immigration Practice Skills Course

10/7/22-10/28/22 Understanding and Preparing Waivers

10/12/22 Prosecutorial Discretion Updates

10/12/22-10/13/22 NLG: Immigration Defense Strategies

10/13/22 Navigating Complications and Obstacles in the Affirmative Asylum Process

10/14/22 AILA Particular Social Groups in Limbo: What PSGs Are Working Now?

10/14/22 What Judges, Attorneys, and Prosecutors Need to Know About How VAWA Confidentiality Impacts Discovery in Cases Involving Immigrant Survivors

10/18/22 VAWA Updates – USCIS Policy Changes and Practice Tips

10/19/22 CLINIC: Outreach Strategies and Social Media to Connect With and Serve Immigrants

10/19/22 U Visa: I-929 Process & Issues

10/20/22 CGRS MCLE Webinar: Firm Resettlement Issues in Asylum Claims

10/20/22 Understanding Unlawful Presence and I-601/I-601A

10/26/22 NIJC Pro Bono Celebration Week Reception

10/27/22 2022 Convening On Advancing Universal Representation

10/27/22 ASISTA: Inadmissibility Webinar Series: Misrepresentation & Smuggling

10/28/22-10/29/22 Courtroom Skills Workshop on “Direct Examination and Narrative”

10/29/22 4th Annual 5k for Immigrant Justice (includes remote option)

11/1/22-11/15/22 Webinar Series: Fundamentals of Asylum Law

11/2/22 TPS Updates

11/3/22 Drugs and Naturalization

11/4/22 Symposium: 40th Anniversary of Plyler v. Doe and Immigration Law in the United States

11/8/22 SIJS-based Adjustment of Status with Delinquency or Crimes

11/14/22 ASISTA: Navigating Systems with your Immigrant Survivor Clients

11/15/22 NIJC’s Fall Pro Bono Asylum Training

11/16/22 Introduction to Conditional Permanent Residence and Filing the I-751

11/17/22 NLG: Updates on Terrorism-Related Inadmissibility Grounds (TRIG) with guest speaker, Jay Gairson

11/29/22 Building an Asylum Claim

12/6/22 Emerging Strategies for Prolonged Detention

12/7/22 Parole in Immigration

12/13/22 The Effects of Absences on Naturalization

12/14/22 Hot Topics in Asylum Law

12/15/22 NLG: Obtaining Criminal Records with guest speaker, Gabriela Kahrl

01/19/22 NLG: Top Ethical Issues Facing Legal Representatives in Removal Hearings with guest speaker, Retired Immigration Judge Dana Marks

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Given the disgraceful mess @ EOIR, it’s understandable that Garland & Co. fear IJ’s speaking out in public. It’s just not a justifiable position, particularly for a Democratic Administration.

🇺🇸Due Process Forever!

PWS

10-11-22

⚖️🗽👩🏽‍⚖️👨🏽‍⚖️ ROUND TABLE 🛡⚔️ WEIGHS IN ON BURDEN OF PROOF FOR VACATED CONVICTION IN 9TH CIR. — Jovel v.Garland

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Member Round Table of Former Immigration Judges

SUMMARY OF ARGUMENT

A criminal conviction vacated due to a substantive or procedural defect does not qualify as a “conviction” establishing a noncitizen’s removability under the Immigration and Nationality Act (INA). By the statute’s plain language, vacatur under section 1473.7(a)(1) conclusively establishes that the underlying conviction rested on a substantive or procedural defect: It allows people no longer in criminal custody to seek vacatur of convictions that were “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”

Even though a California court vacated the conviction of petitioner Jose Adalberto Arias Jovel under section 1473.7(a)(1), the BIA declined to sua sponte

2 Further statutory references are to the California Penal Code unless otherwise indicated.

-2-

RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 12 of 34

reopen Mr. Arias’ removal proceedings because it held that, as a noncitizen,

Mr. Arias had the burden to show that his conviction under section 1473.7(a)(1) was vacated on the merits, and Mr. Arias failed to meet that burden. If affirmed, the BIA’s holding creates several problems.

First, the holding requires IJs to second-guess a state court’s determination under section 1473.7(a)(1), despite the statute allowing vacatur only for prejudicial defects. The plain language of section 1473.7(a)(1) requires “prejudicial error” that renders the conviction “legally invalid,” and IJs should accept that the state court must have vacated the conviction due to a substantive or procedural error of law. Precedent requires IJs to apply the INA to a section 1473.7(a)(1) vacatur without second-guessing the state court’s ruling.

Second, even if a section 1473.7(a)(1) vacatur doesn’t conclusively establish a substantive or procedural defect, the burden is not on noncitizens like Mr. Arias to demonstrate their convictions were vacated on the merits. IJs are bound by Ninth Circuit precedent, which holds that the government bears the burden of proving whether a vacated conviction can still form the basis for removal. To shift the burden of proof to noncitizens (who do not have a constitutional right to counsel, may be detained, and often have limited English proficiency) is contrary to the law and will inevitably increase the likelihood of due process violations.

-3-

RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 13 of 34

Third, the government’s interpretation of section 1473.7(a)(1) will exacerbate the growing backlog of immigration cases and the enormous pressure that IJs face to eliminate the backlog. Given the severe time and resource constraints applied to the immigration court, deviating from the established law governing vacated convictions will greatly hinder the fair and efficient administration of immigration proceedings.

Here’s the full amicus brief:

2022-07-05 (Dkt. 35.1) IJ’s Amici Curiae Brief

Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!

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

Here’s a nice “thank you” from respondent’s counsel Tomo Takaki at Covington & Burling, LA Office:

Dear former IJs and BIA members and GMSR Counsel,

Apologies for the delayed email, but thank you all again for your excellent and powerful brief. It was truly invaluable to get the perspective of former IJs and BIA members on this important issue, especially regarding the unworkability of the BIA’s decision here. It was particularly helpful to get GMSR’s appellate expertise on board here with such well-written advocacy. Our client, and many like him, I’m sure deeply appreciate your efforts on their behalf.

Best,

Tomo Takaki

Covington & Burling LLP

And, of course many, many thanks to our all-star 🌟 pro bono counsel Stefan C. Love and Tina Kuang of GREINES, MARTIN, STEIN & RICHLAND LLP in Los Angeles. Couldn’t do it without you guys and your excellence in appellate advocacy!

Garland’s DOJ inexplicably defends a bad BIA decision, unworkable and slanted against immigrants! Why don’t we deserve better from the Biden Administration?

Why are scarce pro bono resources being tied up on wasteful litigation when Garland could appoint a “better BIA” dedicated to due process, fundamental fairness, practical scholarship, and best practices? Why not get these cases right at the Immigration Court level? Why not free up pro bono resources to represent more respondents at Immigration Court hearings? What’s the excuse for Garland’s poor leadership and lack of vision on immigration, human rights, and racial justice?

Sure, there have been a few modest improvements at EOIR. But, it’s going to take much, much more than “tinkering around the edges” to reform a broken system that routinely treats individuals seeking justice unfairly, turns out bad law that creates larger problems for our legal system, and builds wasteful and uncontrolled backlogs.

Accountability and bold progressive reforms don’t seem to be politically “in” these days. But, they should be! Responsibility for the ongoing mess at EOIR and the corrosive effects on our justice system rests squarely on Garland and the Biden Administration.

🇺🇸 Due Process Forever!

PWS

07-09-22

FROM EOIR:

🇺🇸 Due Process Forever!

Related posts:

Two items from Professor Austin Kocher on Substack:

And, this from Lauren Iosue, Georgetown Law L-3 on LinkedIn.

🇺🇸Due Process Forever,

Related posts:

KEY EXCERPT:

🇺🇸 Due Process Forever!

Related posts:

Published by the ABA:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

PRO SE CHECKLIST

Judge (Ret.) Paul Wickham Schmidt

March 1, 2023

🇺🇸 Due Process Forever!

Related posts:

Here’s the link for more information about this innovative program:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports from LexisNexis Immigration Community:

CA1 on Evidence…Round 2! – Aguilar-Escoto II

THE REST OF THE STORY:

🇺🇸 Due Process Forever!

Related posts:

Carrie La Seur reports for the Daily Montanan:

Without any immigration courts, Montana is tough for immigrants looking to build new life

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

71% of Immigrants Win Their Cases Thanks to Pro Bono Volunteers with the Immigration Justice Campaign

Posted by Atenas Burrola Estrada | Oct 27, 2022 | Due Process & the Courts, Immigration Courts

🇺🇸Due Process Forever!

Related posts:

Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit.

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

Here’s the full amicus brief:

Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!

🇺🇸 Due Process Forever!

Related posts: