🛡⚔️👩🏽‍⚖️⚖️🗽MAKING A DIFFERENCE: AS GARLAND’S EOIR DEGRADES DUE PROCESS AND HIS DOJ ATTORNEYS BABBLE DISINGENUOUS NONSENSE IN DEFENSE OF THE INDEFENSIBLE, ARTICLE IIIs LOOK TO ROUND TABLE FOR PRACTICAL INPUT AND HONESTY REGARDING GARLAND’S INCREDIBLE MESS!

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

From our leader and spokesperson “Sir Jeffrey” Chase:

Round Table Brief cited today in Oral Argument

Hi all:To end the week on a positive note, in oral arguments today before the Second Circuit, one of the judges asked the OIL attorney the following:

“What are we to make of the amicus brief filed by so many former IJs who stress the importance of in person hearing in the special role of Immigration Judges in developing the facts before rendering an opinion, particularly in something as factually heavy as this, as undue hardship to the children?They emphasize the importance of hearing in person testimony and suggest that it is an abuse of discretion to not permit it when it is requested.How do you respond?”

The case is Martinez-Roman v. Garland.

. . . .

The IJ wouldn’t let two witnesses testify: the medical expert, and a 13-year-old child of the respondent.So when the judge asked that question, the OIL attorney claimed that the IJ was trying to protect the child from the psychological trauma of testifying.The judges pointed out that the IJ had actually said he wouldn’t allow the testimony only because it would be duplicative.In the child’s case, it was supposedly “duplicative” of a one-page handwritten statement written by the child.In the expert’s case, the IJ admitted that he hadn’t actually read the expert’s written statement, causing the circuit judges to ask how the IJ could have known the testimony would be duplicative of a statement he hadn’t read.

Wishing all a great, safe, and healthy weekend! – Jeff

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

Kangaroos — Garland’s “amazing” EOIR “judges” can divine the content of statements they never read, while Prelogar’s “equally amazing” DOJ lawyers just “make it up as they go along” when arguing before Article IIIs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

So, Merrick, it’s an “A-OK” judicial practice for your judges to deem live testimony “duplicative” of a statements they never read! That’s some feat of clairvoyance!

“Clairvoyance” appears to be more of a qualification for your “judges” than actual expertise and experience vindicating due process in Immigration Court!

Also, when your attorneys are confronted with the defects in your judges’ performance by Article IIIs who have actually read the record and familiarized themselves with the evidence, (something you apparently deem “optional” for both your IJs and the attorneys defending them) it’s also “A-OK” for your attorneys to fabricate any bogus pretextual excuse, even one that is clearly refuted by the record.

Perhaps, SG Liz Prelogar should take a break from losing cases before the Supremes and pay attention to what nonsense DOJ attorneys are arguing before the lower Federal Courts. What, Liz, is the legality and the morality of defending a broken system, wholly owned and operated by your “boss,” that dishonestly denies due process to the most vulnerable among us?

Harvard Law might have spared Solicitor General Elizabeth Prelogar from having to work in the “legal trenches” of Immigration Court, unlike the lawyers who have been fighting to keep democracy alive over that past five years! Apparently, she took a pass on the Ethics class too, as DOJ lawyers under her overall direction “make it up as they go along” in defending the dysfunctional Immigration Courts before the Article IIIs!
PHOTO: Twitter

Is this what they taught you at Harvard law? Did you miss the required course on ethics and professional responsibility? Why is the Round Table doing the work YOU should be doing as a supposedly responsible Government official who took an oath to uphold the Constitution and the rule of law?

Yeah, I know that Prelogar, like her other elitist political appointee colleagues, operates in the “legal stratosphere,” has clerked for two liberal Supremes, and otherwise “punched all the right tickets” in Dem politics. But, the problem here is that like it or not, Immigration Courts are the “retail level” of American justice that affects everything else! Right now, that effect is stunningly and unacceptably adverse!

The GOP White Nationalist nativists, like Sessions, Barr, and their hand-selected toadies, “got that.” That’s why they used their time in office to weaponize EOIR and degrade due process and humanity, while using “Dred Scottification” developed in immigration to diminish and degrade the rights of “the other” throughout our legal and political systems! The dots aren’t that hard to connect, unless, apparently, you’re a Dem Politico serving in the DOJ!

For whatever reason, perhaps because Dems keep appointing politicos who haven’t had to personally confront the mess in Immigration Court, folks like Garland, Monaco, Gupta, Clarke, and Prelogar entertain the elitist belief that standing up to the “nativist appeasers” in the Biden White House, getting rid of bad judges and incompetent administrators at EOIR, and bringing our dysfunctional (“killer”) Immigration Courts into conformity with Constitutional Due Process, international standards, and simple human dignity are “below their pay grade.” Not so!

Have to hope that the Chairman Lofgren and her staff are paying attention and will start throwing more light on Garland’s deficient handling of EOIR and the disgraceful, intellectually dishonest, arguments his attorneys are making before the Article IIIs!

This system is BROKEN, and going into the second year of the Biden Administration, Garland has NOT taken the necessary bold, decisive, yet quite obvious and realistically achievable, steps to FIX it! What gives?

Since Liz has never been a judge, let me provide an insight. No judge, life-tenured or “administrative,” liberal, conservative, or centrist, likes being played for a fool, misled, or “BS’ed” 💩 by counsel. (I actually remember “chewing out” attorneys in open court for failing to acknowledge controlling precedent in arguing before me.)

They particularly hate such conduct when it comes from lawyers representing the USG! Because Federal Judges often come from a bygone generation, many still retain the apparently now long outdated concept that DOJ attorneys should be held to a “higher standard.” Your predecessor, Trump shill Noel Francisco, certainly mocked that belief during his disgraceful tenure at the DOJ, particularly in his disingenuous and aggressive defense of the White Nationalist, anti-immigrant, anti-asylum agenda! Do you REALLY want to follow in HIS footsteps? Sadly, At this early point in time, that answer appears to be “yes.”

So, that leads to another question. Why do progressive human rights and immigration advocates continue to turn out the vote and loyally support a Dem Party that, once in office, considers them, their values, and the human souls they represent to be “expendable” — essentially “fungible political capital?” It’s something I often wondered when I was on the inside watching Dem Administrations screw up EOIR and immigration policy. I still don’t know the answer, and perhaps never will.

🇺🇸Due Process Forever!

PWS

01-15-22

🤯👎🏽☠️🤮🆘STATS SHOW YET ANOTHER PREDICTABLE, HORRIBLE GARLAND FAILURE @ EOIR: “New Research Finds that Dedicated Docket Leads to High Rates of Deportation, Low Representation Rates, and Wastes Immigration Judges’ Time” — Duh!

From Austin Kocher:

https://austinkocher.substack.com/p/biden-administrations-dedicated-docket

. . . .

These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.

. . . .

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

Read Austin’s findings at the link.

The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team.

Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better.

🇺🇸Due Process Forever!

PWS

01-14-22

⚖️FINALLY, HOUSE TO EXAMINE GARLAND’S DYSFUNCTIONAL, MISMANAGED, LEADERLESS IMMIGRATION “COURTS” & NEED FOR DUE-PROCESS-FOCUSED REFORMS! — Tal Kopan Reports For SF Chron!

Read: https://www.sfchronicle.com/bayarea/article/The-nation-s-immigration-court-system-is-a-16773646.php

The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it

WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.

The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.

…

Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.

Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.

Read more: https://www.sfchronicle.com/bayarea/article/The-nation-s-immigration-court-system-is-a-16773646.php

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

Read Tal’s complete report at the link.

Welcome and long, long, long overdue news! But, is it too little, too late?

Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy.

Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from experts who understand the full legal and human effects of Garland’s complacent and ineffectual leadership.

It will also come a year after The Chronicle reported that immigration court policies and structure have allowed sexually inappropriate behavior and misconduct among judges and staff to flourish, which prompted the Justice Department to kick off a study of how to overhaul its procedures.

The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.

In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!

The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance.

Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.

Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it.

The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.

Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.

In other words, Garland has been a disaster for those committed to due process, racial justice, equal treatment under law, and a diverse, welcoming, stable American democracy.

Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!

🇺🇸Due Process Forever,

PWS

01-14- 21

🤮🤯☠️👎🏽 COMPLETE DISCONNECT @ “JUSTICE” — WHO WON THE 2020 ELECTION, ANYWAY? — Even As He Disses Progressive Human Rights Advocates & Bashes Migrants In Court, Garland Continues To Employ Highly Unqualified “Stephen Miller Acolyte” As Top Judge In His Biased & Broken “Courts!” — Tracy Short “Cheered” Trump’s Most Heavy-Handed Enforcement Actions — Now He’s Garland’s “Top Judge” In a Wholly-Owned System That Abuses Migrants & Consistently Turns Out Sloppy, Unprofessional Work!

https://www.law360.com/immigration/articles/1454701/docs-show-ice-atty-cheered-judge-s-arrest-first-of-many-

Docs Show ICE Atty Cheered Judge’s Arrest: ‘First Of Many?’

By Brian Dowling

Law360 (January 12, 2022, 2:09 PM EST) — A top U.S. Immigration and Customs Enforcement attorney appeared elated when a sitting Massachusetts judge was indicted in 2018 for helping an immigrant in the country illegally evade custody, asking in an email if it would be “the first of many” such arrests, according to records made public in court Tuesday.

The email by then-ICE Principal Legal Adviser Tracy Short was part of a series of documents filed by a civil liberties group and government watchdog suing the agency to obtain even more records relating to the obstruction of justice charges against Newton District Court Judge Shelley Joseph.

Short posed the rhetorical question as a Fox News article circulated in emails among agency staff on the day Judge Joseph was indicted. In a later email to agency executives, Short said, “This is a great day.”

“Indeed,” responded Matthew Albence, ICE director of enforcement removal operations, according to the court filings. ICE chief of staff Thomas Blank allegedly chimed in, “Blessed.”

Short is now chief immigration judge for the U.S. Department of Justice‘s Executive Office for Immigration Review, while Albence and Blank have since moved into the private sector.

Judge Joseph is accused of helping the immigrant evade federal custody by allowing him to leave out the back door of her courtroom while agents from ICE were waiting out front to arrest him.

The case has been criticized by retired judges, academics and Massachusetts defense lawyers as an overreach by the federal government. Judge Joseph has argued that she acted within the scope of her judicial authority and therefore cannot be criminally charged. The issue is on appeal at the First Circuit.

The American Civil Liberties Union of Massachusetts and American Oversight, a government watchdog, attached the emails ICE produced to a motion for a pretrial win in the lawsuit they filed against the agency for records relating to the charges against Judge Joseph and her court officer Wesley MacGregor.

The civil liberties groups told U.S. District Judge Angel Kelley that the 83 pages of communications handed over by ICE in response to its records request “calls into serious question the adequacy of its search” for documents.

Among the groups’ concerns are that no records were produced for the 11 months that followed the incident, no text messages were searched, the search terms used were too narrow, and the agency never searched its Homeland Security Investigations Division even though the unit wrote a memo about the incident.

The groups asked the court to grant them summary judgment, order ICE to conduct a reasonable search — including emails and text messages — and release pages ICE is withholding under claimed exemptions from the public records law.

In December, ICE asked for a win in the case, saying it handed over what it needed to and withheld other sought-after documents that would harm pending criminal proceedings if released.

Judge Joseph and MacGregor have appealed a federal judge’s decision to not toss the charges on judicial immunity grounds. The First Circuit, in early December, heard the appeal and wrestled with how to define the judge’s immunity claim.

The ACLU’s records request was spurred by a November 2019 New York Times article that reported then-acting ICE Director Thomas Homan had been communicating with the Massachusetts U.S. Attorney’s Office in seeking legal recourse against Judge Joseph.

The ACLU requested records from March 15, 2018, through April 25, 2019, including emailed messages and letters between the U.S. attorney’s office and ICE about Judge Joseph, as well as records concerning an ICE investigation into the judge.

ICE told the ACLU in 2019 that it couldn’t do the search because the ACLU was a third party in the criminal case against Judge Joseph and needed her approval to access the records.

The ACLU protested and asked the agency to reconsider, saying that its request didn’t need Judge Joseph’s approval. In February 2020, the ICE Office of the Principal Legal Advisor ruled that a records search could be made, but ICE has failed to respond to the ACLU’s request since then, the complaint says.

Daniel McFadden, an ACLU staff attorney on the case, said in a statement to Law360 that ICE’s decision to charge Judge Joseph was “unprecedented.”

“The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement,” McFadden said.

ICE and the Department of Justice declined to comment on the filing when reached Wednesday.

The ACLU of Massachusetts is represented in-house by Krista Oehlke, Daniel L. McFadden and Matthew R. Segal.

American Oversight is represented in-house by Katherine M. Anthony.

ICE is represented by Michael Sady of the U.S. Attorney’s Office for the District of Massachusetts.

The case is ACLU of Massachusetts et al. v. ICE, case number 1:21-cv-10761, in the U.S. District Court for the District of Massachusetts.

–Editing by Orlando Lorenzo.

Update: This article has been updated to include comments from the ACLU.

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

Look, whether Short can be fired or not, he has no business being the Chief Immigration Judge at EOIR. Short never held a judicial position before his inappropriate appointment under Trump.

His career as a hard line, widely disrespected ICE Prosecutor took him through probably the worst Federal Court in America — the Atlanta immigration Court, a self-styled “Asylum Free Zone” where “due process and fundamental fairness go to die and be buried.”

No Senior Executive like Short has “life tenure” in a particular senior position. For example, former Chief Immigration Judge, current BIA Appellate Judge Michael J, Creppy, woke up one morning in 2006 to find himself “out at OCIJ” and on his way to OCAHO, widely considered the “Siberia of EOIR.” His “offense:” “losing the confidence” of the then powers that were at DOJ and EOIR during the Bush II Administration!

I had a similar experience when I was “pushed out” as BIA Chair and then Appellate Judge because Ashcroft and his team of hard liners (including the notorious neo-fascist nativist Kris Kobach) didn’t like my decisions standing up for the legal rights of migrants!

Once in power, the GOP makes good on its threats against asylum seekers and other migrants, without necessarily passing any legislation. By contrast, with weak-kneed, tone-deaf “leaders” like Mayorkas and Garland, Dems fail to keep their campaign promises and won’t even move the worst of the GOP holdovers out of key positions where they undermine justice and ruin human lives.

🇺🇸Due Process Forever!

PWS

01-134-22

🤮👎🏽🤡 WOES CONTINUE FOR GARLAND’S “DENY ASYLUM WITHOUT READING THE RECORD” EOIR “COURTS!” — This Time In The “Government-Friendly” 5th Cir!

Dan Kowalski on LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-overlooked-evidence-remand-emmanuel-tata-v-garland-unpub#

CA5 “Overlooked Evidence” Remand: Emmanuel-Tata v. Garland (unpub.)

Emmanuel-Tata v. Garland (unpub.)

“Tarlishi Emmanuel-Tata, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. We GRANT the petition for review and REMAND for further consideration. … Emmanuel-Tata challenges both the BIA’s factual determinations and whether it gave his claims full and fair consideration. We begin by examining Emmanuel-Tata’s argument that the BIA failed to consider all the evidence. This argument relies on a BIA statement that the record “does not contain any country conditions evidence indicating that Anglophones are regularly subject to persecution,” and that “[t]he record does not contain any country conditions evidence indicating the type of punishment the respondent may face as a result of his criminal charges.” There is such evidence, though. … The significance of the overlooked evidence is clear. … Because the BIA erroneously found there was no record evidence about relevant country conditions, Emmanuel-Tata did not receive “meaningful consideration of the relevant substantial evidence supporting” his claims. See Abdel-Masieh, 73 F.3d at 585. We therefore reverse the BIA’s decision. We need not further consider the BIA’s factual determinations. The petition for review is GRANTED and we REMAND to the BIA for further consideration.”

[Hats off to Brian Plotts! Brian, make a motion to publish!]

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

As any “immigration pro” knows, the DOJ has to work hard to lose immigration cases in the “ultra-conservative” 5th Circuit. But, even judges not very sympathetic to migrants don’t like being “played for fools” by a DOJ where “quality, integrity, and due process” definitely are “NOT job one.”

Highlighting the constant stream of bogus findings, “canned” decisions, ignored records, and chronic contemptuous sloppiness is a great way to for the NDPA to make inroads with even the most unsympathetic Circuit panels. While some Article III judges are willing to overlook the BIA’s endemic shortcomings, hiding behind the “bogus deference” doctrine, they might be less willing to “do the BIA’s dirty work for them.”

“Times are hard

You’re afraid to pay the fee

So you find yourself somebody

Who can do the job for free

When you need a bit of lovin’

‘Cause your man is out of town

That’s the time you get me runnin’

And you know I’ll be around

I’m a fool to do your dirty work

Oh yeah

I don’t wanna do your dirty work

No more

I’m a fool to do your dirty work

Oh yeah”

From “Dirty Work” by Steely Dan (1972)

Listen on Youtube here: https://m.youtube.com/watch?v=ghcsrblhn7A

Songwriters: Donald Jay Fagen / Walter Carl Becker

Dirty Work lyrics © Universal Music Publishing Group

🇺🇸Due Process Forever!

PWS

01-13-22

🤮🤯🏴‍☠️👎🏽GARLAND’S DOJ GOES “FULL MILLER LITE” ON TRAUMATIZED REFUGEE FAMILIES! — Some Dem “Strategists” Like New Policy: Dis Progressives, Abandon Campaign Promises, Trash Vulnerable Migrant Families Of Color In Hopes Of Appeasing White Nationalist GOP Nativists!

Maria Sacchetti & Sean Sullivan report for WashPost:

https://www.washingtonpost.com/national/biden-separated-families-court-migrants/2022/01/12/5c592f74-725a-11ec-8b0a-bcfab800c430_story.html

Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.

The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.

Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.

“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”

The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.

. . . .

But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.

. . . .

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

Read the full article at the link.

“Awkward” seems like a “sanitized term” for “duplicitous and immoral!”

So, I assume that the Dems who are unwilling to stand up for progressive values and the human rights of migrants will look to their GOP nativist, White Nationalist buddies for contributions and votes come election time. Contrary to DOJ’s misrepresentation to the courts, individuals regardless of status had a statutory and treaty right to seek protection in the U.S. regardless of manner of entry. The unconstitutional Sessions/Miller scofflaw conduct was intended to punish and deter individuals from asserting and vindicating their legal rights.

Additionally, so-called “illegal entries” are to a large extent fueled by illegal policies by both the Biden and Trump Administrations of not having an operating, fair, timely asylum system at legal ports of entry. This has been compounded by failure of both Administrations to establish robust, fair refugee processing systems for Latin America in the regions where the refugee situations are generated.

I have a different perspective: A party afraid to stand up for the values of its core constituency stands for nothing at all! And we already have a major “party of no values.” So, the “competition” for the “no values voters” might already be over.

Disgusting as the anti-democracy, White Nationalist GOP is, I must say that they know who their supporters are and aren’t afraid to act accordingly. Just who are the Dems representing in this disgraceful and cowardly race to the bottom being led by Garland and Mayorkas (with an assist from Vice President “Die in Place” Harris)?

The Biden Administration’s “policy” of abandoning asylum seekers and allowing the Immigration Courts to operate dysfunctionally with mostly “holdover judges” and ever-mushrooming backlogs hasn’t proved to be a “political winner” to date. So, why do the tone-deaf Dems pushing it believe it will help them in November?

Hopefully, at least some Federal Courts will see through Garland’s disingenuous smokescreen and stick the DOJ & DHS with judgements much larger than the ones they were afraid to agree to in settlement.

The Garland DOJ continues to squander time, resources, and goodwill by filling the Article IIIs with ill-advised “Stephen Miller Lite” litigation positions. And, these are the folks progressives are depending on to vindicate voting rights and hold the leaders of the insurrection accountable? Good luck with that! Garland appears to be too busy defending Stephen Miller’s policies to effectively push progressive, due-process-oriented positions in the Article IIIs or reform his wholly owned, totally dysfunctional Immigration “Courts.”

🇺🇸Due Process Forever!

PWS

01-13-22

💸🤑SCAM CITY USA! — Feds Paid Bad Cal Jail $1.4 Million For Nothing! — Now They Are Placing Immigration Detainees In These Dangerous, ☠️ Substandard ⚠️ Conditions! — Administrations Change, But The American Gulag 🤮 Remains!

https://www.sfchronicle.com/california/article/Northern-California-jail-reopens-to-immigrant-16765144.php

Deepa Fernandes for the SF Chron:

. . . .

Court orders in the class-action lawsuit caused Yuba’s detainee population to steadily decline, from 127 in May 2020 to zero on Oct. 27, 2021, when the last incarcerated noncitizen was released. Activists briefly celebrated and hoped to use the momentum to prevent the jail from accepting future detainees.

But ICE and Yuba County had quietly extended their contract indefinitely in 2018. The contract stipulates that Yuba County receive a minimum of $24,000 a day whether any detainees are in its jail or not. In the two months the jail was without detainees, the federal government paid Yuba County almost $1.4 million.

As word trickled out that the Northern California jail might begin accepting new detainees, formerly incarcerated men and community supporters protested outside the federal immigration court in San Francisco last month.

A report by the team overseeing the jail’s compliance with the court-ordered consent decree found that a “severe breakdown of the Jail’s mental health system” contributed to the suicide last month of a man who had been in the jail for only a few days. It also found that officials had failed to fix previously cited suicide risks, and that there was inadequate medical and mental health staffing and treatment.

“We’ve known for decades that Yuba County Jail has a horrific record of mental and medical care that has unfortunately resulted in tragic deaths and lots of pain for lots of families,” said Laura Duarte Bateman, communications director for the California Collaborative for Immigrant Justice, which organized last month’s protest against Yuba accepting new detainees.

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

Read the full article at the link.

Fraud, waste, and abuse. No need for the GAO “hotline” on this one. It’s all hanging out in public view as Mayorkas & Garland bury their respective heads in the sand.

🇺🇸Due Process Forever!

PWS

01-11-21

☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts — How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

IMMIGRANT LEGAL DEFENSE

FOR IMMEDIATE RELEASE January 10, 2022

Contacts:

Immigrant Legal Defense

Ilyce Shugall, ilyce@ild.org, (415) 758-3765

Siobhan Waldron, siobhan@ild.org, (510) 479-0972

Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980

Omar Ameen Files Federal Lawsuit Seeking His Release

After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism

San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.

After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.

Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.

“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”

“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.

“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”

###

Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.

The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.

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

Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.

To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).

“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/jan-11-2022-sc-oral-arg-previews-detention-bond-jurisdiction

One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.

It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.

In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.

He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.

But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.

It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”

Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.

Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️

🇺🇸Due Process Forever!

PWS

01-11-22

☹️MORE IMMIGRATION EXPERTS FLEE THE COOP AS BIDEN ADMINISTRATION TURNS ITS BACK ON HUMAN AND CONSTITUTIONAL RIGHTS OF ASYLUM SEEKERS — Esther Olavarria & Tyler Moran Latest To Jump Biden’s Sinking Human Rights Ship!

https://thehill.com/homenews/administration/588663-key-member-of-white-house-immigration-team-retiring-report

Olafimihan Oshin reports for The Hill:

Esther Olavarria, the deputy director for immigration of the Biden administration’s Domestic Policy Council (DPC), is retiring from her position.

A White House spokesperson confirmed Olavarria’s pending departure from her position to Politico and CNN.

“I could not be more grateful for Esther Olavarria’s myriad contributions to the Biden-Harris Administration, particularly her work to reverse the cruel and reckless policies of the previous Administration and to implement President Biden’s vision for a fair, orderly, and humane immigration system,” DPC head Susan Rice said in a statement to Politico.

A source told Politico that Olavarria hasn’t decided when her last day at the White House will be and will continue to work with the administration for the time being.

This comes as Tyler Moran, a senior adviser on migration, is set to leave this month after spending roughly six months with the Biden administration.

The Hill has reached out to White House for comment.

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

The suggestion by Susan Rice that Olavarria was able to help implement a “fair, orderly, humane immigration system” is preposterous.

The Biden Administration dishonestly continues to use Stephen Miller’s bogus, racially motivated Title 42 ruse to deny fair treatment of asylum seekers at the Southern Border. Garland’s regressive “Miller Lite” Immigration Courts are in free fall, paralyzed by an astounding, ever-expanding 1.5 million case backlog. There is no functioning due process asylum system at our borders. Nor has Biden established robust, realistic “overseas” refugee programs in Latin America that could help obviate the pressure at the border.

Most of Mayorkas’s and Garland’s ill-conceived proposed asylum regulations have been panned by the Round Table and other experts. Biden’s promise to reform and strengthen gender-based asylum has disappeared into the bureaucratic morass at DHS and DOJ. In plain terms, Biden’s human rights’ program is a mess — lacking leadership, moral courage, practical experience, and legal expertise.

These are the real reasons why the “progressive practical experts” who should be leading human rights and immigration reforms for Biden are instead abandoning ship. The “deterrence crowd” and those who live in mortal fear of the nativist right are “driving the train” for Biden.

These notable departures follow in the wake of the resignation of widely respected human rights/immigration expert Harold Koh who blasted the Biden Administration’s spineless, inept, and immoral performance on racial justice, human rights, and the Constitutional rights of vulnerable legal asylum seekers. https://immigrationcourtside.com/2021/10/04/%f0%9f%91%8d%f0%9f%8f%bcprogressive-legal-icon-harold-koh-rips-bidens-bogus-stephen-miller-lite-xenophobic-policies-resigns-dos-post-amid-a-cresendo-of-administration-lies/

Additionally, as covered earlier today, widely admired Immigration Judge Dana Leigh Marks retired at the end of the year. https://immigrationcourtside.com/2022/01/09/%f0%9f%98%8e%f0%9f%97%bd%e2%9a%96%ef%b8%8f%f0%9f%91%a9%e2%80%8d%e2%9a%96%ef%b8%8f-flash-judicial-maven-hon-dana-leigh-marks-retires-joins-round-table-%f0%9f%9b%a1%e2%9a%94%ef%b8%8f/

Garland blew the chance to use Marks’s last six to nine months prior to retirement to harness her incomparable knowledge and leadership to institute long overdue progressive personnel, procedural, and policy reforms to his disastrously dysfunctional Immigration Courts. Talk about loss of institutional knowledge of everything that has gone wrong at EOIR over the past two decades!

Also, ICE Principal Legal Advisor John Trasvina departed after an unusually short stint on the job, although he was replaced with another experienced immigration lawyer, Kerry Doyle.

Obviously, some of the “best and brightest” who once were willing to lend their expertise to an incoming Administration that (apparently disingenuously) claimed that it would reverse the “dehumanization of the other” by Trump and his cronies now believe their talents can be better used elsewhere.

As to the claims that the Olavarria and Moran departures were “normal,” don’t believe a word of it. Senior level policy advisors who believe their views are respected, making government better, and saving lives don’t “retire” after a few months on the job. It’s not like they weren’t bright enough to know their jobs would be highly stressful and personally inconvenient when they accepted their positions.

All this comes at a time when America is experiencing a worker shortage that many experts believe is being fueled by a declining birth rate and declining immigration. Seems like many of the workers we could use are legal asylum seekers who are being illegally turned around at our border while Mayorkas and Garland refuse to stand up for the rule of law. Could that have something to do with why those who have spent careers understanding the shortcomings of our immigration and human rights systems are “voting with their feet” on the Biden Administration’s muddled and wildly inconsistent approach to immigration?

🇺🇸Due Process Forever!

PWS

01-09-21

😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.”

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.”

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987).

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades.

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court.

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table.

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords.

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

⚖️4TH CIRCUIT: BIA ABUSED DISCRETION, BLEW ANALYSIS, FAILED TO FOLLOW PRECEDENT IN MINDLESS DENIAL OF CONTINUANCE FOR U VISA APPLICANT— Garcia Cabrera v. Garland — A Microcosm Of Garland’s Dysfunctional, Backlog-Building Immigration Courts & His Disgraceful Defense Of The Indefensible In The Article IIIs! — Why Garland’s Inept & Disinterested Performance @ EOIR Is A “Nail In The Coffin” Of American Democracy! ⚰️

Melody Bussey — Melody Busey ESQUIRE
Associate Attorney
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

It should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard
Principal Partners
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

https://www.ca4.uscourts.gov/opinions/201943.P.pdf

Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION: Judge Motz

CONCURRING OPINION; Judge Rushing

KEY QUOTE:

In sum, we hold that the BIA and IJ abused their discretion in denying Garcia

Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.

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

Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!

Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels!

Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.

That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in the Biden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!

When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work.

Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPA attorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration!

The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!

While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.

Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!

Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.” Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?

Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).

By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why?

Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?

More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized?

And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!

In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!

That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!

Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.

The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms!

Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions!

🇺🇸Due Process Forever!

PWS

01-08-21

🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”

“Floaters” — So, what’s the “dollar value” of brown-skinned human lives to Biden, Harris, & Garland? We’re about to find out!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

https://www.washingtonpost.com/opinions/2022/01/05/president-biden-broke-his-promise-separated-migrant-families/

Opinion by the Editorial Board

January 5 at 2:18 PM ET

When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.

President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”

Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.

The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.

The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.

Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.

Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.

By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.

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

Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!

“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.

The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!

If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand up for the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!

I’m not the only one to note and question Garland’s uninspiring performance as Attorney General at a time of existential crisis. https://www.sfchronicle.com/opinion/editorials/article/Editorial-Merrick-Garland-isn-t-going-to-save-16752522.php?utm_source=newsletter&utm_medium=email&utm_content=headlines&utm_campaign=sfc_opinioncentral&sid=5bfc15614843ea55da6b8709

For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”

As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)

It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.

🇺🇸 Due Process Forever!

PWS

01-07-22

🏴‍☠️NO ACCOUNTABILITY: ONE YEAR AFTER PUBLICLY INSTIGATING A FAILED COUP, TRUMP CONTINUES TO OPENLY PLOT TO OVERTHROW DEMOCRACY, AS NEO-FASCIST GOP & ITS TOADY POLITICOS LINE UP BEHIND THE “BIG LIE!” — THE GOP, & THOSE WHO SUPPORT & ENABLE IT, HAS ACTUALLY BECOME THE BIGGEST THREAT TO THE FUTURE OF OUR REPUBLIC!🤮👎🏽🏴‍☠️

S.V. Date
Senior White House Correspondent
HuffPost
PHOTO: HuffPost

https://www.huffpost.com/entry/trump-coup-attempt_n_61c2733fe4b04b42ab6602a2

SV Date on HuffPost:

WASHINGTON — What if you attempted a coup but people were unwilling to wrap their heads around what you had done?

A year after Jan. 6, 2021, that is the peculiar situation in which Donald Trump finds himself. Instead of being carted off in handcuffs for inciting an insurrection against the United States, or even just being banished from federal office for life by the Senate, the former president instead remains the leader of one of the two major political parties and is openly considering another run for the White House in 2024.

. . . .

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

https://www.theguardian.com/commentisfree/2022/jan/05/capitol-attack-january-6-democracy-america-trump?CMP=Share_iOSApp_Other

Cas Mudde on The Guardian:

The government is finally taking the threat of far-right militia groups seriously. But the larger threat are the Republican legislators who continue to recklessly undermine democracy

One year ago, he was frantically barricading the doors to the House gallery to keep out the violent mob. Today, he calls the insurrection a “bold-faced lie” and likens the event to “a normal tourist visit”. The story of Andrew Clyde, who represents part of my – heavily gerrymandered – liberal college town in the House of Representatives, is the story of the Republican party in 2021. It shows a party that had the opportunity to break with the anti-democratic course under Donald Trump, but was too weak in ideology and leadership to do so, thereby presenting a fundamental threat to US democracy in 2022 and beyond.

The risk of a coup in the next US election is greater now than it ever was under Trump | Laurence H Tribe

Clyde is illustrative of another ongoing development, the slow but steady takeover of the Republican party by new, and often relatively young, Trump supporters. In 2015, when his massive gun store on the outskirts of town was still flying the old flag of Georgia, which includes the Confederate flag, he was a lone, open supporter of then-presidential candidate Trump, with several large pro-Trump and anti-“fake news” signs adorning his gun store. Five years later, Clyde was elected to the House of Representatives as part of a wave of Trump-supporting novices, mostly replacing Republicans who had supported President Trump more strategically than ideologically.

With his 180-degree turn about the 6 January insurrection, Clyde is back in line with the majority of the Republican base, as a recent UMass poll shows. After initial shock, and broad condemnation, Republicans have embraced the people who stormed the Capitol last year, primarily referring to the event as a “protest” (80%) and to the insurrectionists as “protesters” (62%), while blaming the Democratic party (30%), the Capitol police (23%), and the inevitable antifa (20%) for what happened. Unsurprisingly, the vast majority of Republicans (75%) believe the country should “move on” from 6 January, rather than learn from it. And although most don’t care either way, one-third of Republicans say they are more likely to vote for a candidate who refuses to denounce the insurrection.

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The increased anti-democratic threat of the Republican party can also be seen in the tidal wave of voting restrictions proposed and passed in 2021. The Brennan Center for Justice counted a stunning 440 bills “with provisions that restrict voting access” introduced across all but one of the 50 US states, the highest number since the Center started tracking them 10 years ago. A total of 34 such laws were passed in 19 different states last year, and 88 bills in nine states are being carried over to the 2022 legislative term. Worryingly, Trump-backed Republicans who claim the 2020 election was stolen are running for secretary of state in various places where Trump unsuccessfully challenged the results.

. . . .

At the same time, the Republican party has become increasingly united and naked in its extremism, which denies both the anti-democratic character of the 6 January attack and the legitimacy of Biden’s presidency, and is passing an unprecedented number of voter restriction bills in preparation for the 2022 midterms and 2024 presidential elections. As long as the White House mainly focuses on fighting “domestic violent extremism”, and largely ignores or minimizes the much more lethal threat to US democracy posed by non-violent extremists, the US will continue to move closer and closer to an authoritarian future.

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

You can read both articles in full at the above links.

If you are counting on AG Merrick Garland to “lead the charge” on establishing accountability, your optimism might be tempered by his own failure to “clean house” at DOJ and in particular by his failure to reform his wholly-owned Immigration Court system that was front and center in assisting and carrying out the Trump/Miller White Nationalist assault on the rule of law, primarily targeting individuals of color and the “world’s most vulnerable” seeking justice in our system.

🇺🇸Due Process Forever!

PWS

01-06-22

🗽🗽⚖️😇NY TIMES PAYS TRIBUTE TO LEGENDARY FOLK HERO & HUMAN RIGHTS ADVOCATE LISA BRODYAGA (1940-2021)

https://www.nytimes.com/2022/01/04/us/lisa-brodyaga-dead.html

Lisa Brodyaga, Crusading Lawyer for Immigrants’ Rights, Dies at 81

She became a folk hero representing asylum seekers fleeing violence in Central America, setting up shop in the Rio Grande Valley and building a refuge camp.

By Alex Vadukul

Jan. 4, 2022

As leftist revolution and U.S.-backed counter-insurgencies spread through El Salvador and Guatemala in the early 1980s, Central America became awash in bloodshed, sending refugees fleeing to the United States border in hopes of a new life.

When they got there, a combative immigration lawyernamed Lisa Brodyaga, who had only recently passed the Texas bar exam, was waiting.

She was running Proyecto Libertad, a pro bono legal initiative in Texas representing asylum seekers, and by the decade’s end she had helped defend thousands in court. She went on to earn a reputation as a litigious thorn in the side of federal border enforcement agencies for the next 40 years.

“Lisa was a leader in a whole movement of lawyers who decided to approach the representation of immigrants with a civil rights consciousness,” said Susan Gzesh, an immigrant rights expert who teaches at the University of Chicago. “She helped firmly establish that undocumented asylum seekers have rights under our Bill of Rights. She taught immigration lawyers to not be afraid to go into federal courts.”

Ms. Brodyaga (pronounced brod-YA-ga) died on Oct. 28 at her home at a refuge camp she founded near San Benito, Texas. She was 81. The cause was lung cancer, her son, Paul Mockett Jr., said. Her death was not widely reported at the time.

Wearing her hair in a long single braid down her back, Ms. Brodyaga was known to show up at court wearing sandals or cowboy boots. If the federal prosecutors she faced smirked at first, it was because they were uninitiated. By lunch break they were often stepping outside to collect themselves after the verbal barrage Ms. Brodyaga had directed at them in defense of her client.

“I like to be underestimated,” she once told law students at the University of Miami. “I like to have people think, ‘She’s just a hick lawyer.’” She added: “Go ahead, I dare you. Dismiss me.”

In the mid-1980s, as war raged in El Salvador, members of the independent Human Rights Commission of El Salvador were imprisoned by the country’s government, and Ms. Brodyaga traveled there to check on their condition.

. . . .

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

Read the complete tribute/obit at the link!

“Go ahead, I dare you. Dismiss me.”

That’s something to which today’s talented, dedicated, grossly under-appreciated NDPA lawyers can relate!

As an elitist who never had to operate “in the trenches of immigration law,” AG Garland obviously takes your and your colleagues’ legitimate demands for long overdue radical EOIR reform, real practical immigration/human rights expertise, and potential judicial and administrative talent “for granted” as he “busies himself” with “more important things” and runs our immigrant justice and asylum systems even more deeply into the ground (a hard concept to grasp after four years of Sessions & Barr — but progressive advocates had better start looking at Garland in a “new Miller Lite” and acting accordingly).

It looks like the only way you are going to get Garland’s attention is to keep taking him and his error-prone, anti-immigrant, Trump-era-holdover BIA “to the cleaners” in Federal Court — in the mold of the late, great, Lisa B!

Many thanks to my good friend and NDPA warrior queen Deb Sanders, who’s cast in that same mold as Lisa, for alerting me to this article!

Here’s a previous Courtside post on Lisa:

https://immigrationcourtside.com/2021/09/28/ndpa-😢-sad-news-gives-gives-all-of-us-a-chance-to-honor-ndpa-warrior-queen-for-a-lifetime-of-unswerving-devotion-to-due-process-equal-justice-for-migrants-s/

🇺🇸Due Process Forever!

PWS

01-05-21

☠️🤮⚰️ AMERICAN TRAVESTY — IN GARLAND’S TOTALLY DYSFUNCTIONAL (NON) COURT SYSTEM, LIFE OR DEATH⚰️ IS A COMPLETE “CRAP SHOOT!” — WHY ISN’T THE PRESSURE ON BIDEN’S AG TO FIX IT BEFORE MORE LIVES ARE UNJUSTLY LOST?

https://www.kqed.org/news/11900535/a-simple-paperwork-error-can-get-asylum-seekers-deported-rosa-diaz-got-lucky-on-a-lunch-break

Tyche Hendricks reports for KQED:

A Simple Paperwork Error Can Get Asylum Seekers Deported. Rosa Díaz Got Lucky on a Lunch Break

Jan 4

Sitting in her home in Colusa County on Dec. 29, 2021, Rosa Díaz holds the papers she was given by immigration officials when she fled Honduras and asked for asylum at the U.S. border. Díaz was ordered deported ‘in absentia’ when she missed a hearing in immigration court due to a clerical error in her address. (Courtesy of Rosa Díaz)

Rosa Díaz vividly remembers the summer day in 2019 when she showed up for an appointment at the Sacramento office of U.S. Immigration and Customs Enforcement.

“The surprise I got on July 12 was that I was going to be deported,” she said, speaking in Spanish.

An ICE officer told her that a judge had ordered her removed from the country after she missed an immigration court hearing in Los Angeles the previous November. Díaz was stunned.

She had left Honduras with her three children in 2018 after police failed to protect her from an abusive partner who beat her close to death while she was pregnant with her youngest child. Over two weeks, they walked, got rides and took buses to the U.S. border, hoping to find protection. They were sent to an ICE family detention center in Texas for three weeks.

Before she was released from detention, Díaz, 40, gave ICE agents the phone number for her adult son, who lived in Maxwell, a town in rural Colusa County in the Sacramento Valley. Her son provided officials with his address, where his mom and siblings would be living. But the address ICE sent to the immigration court got botched: ICE listed the city as Los Angeles.

“I never received a notice of that hearing. If I had, I would have been there,” Díaz said. “My intention was to do things the right way.”

‘I never received a notice of that hearing. If I had, I would have been there.’Rosa Díaz, asylum seeker from Honduras

When she was released from detention with a temporary status called “parole,” she was given a year before she had to check in with ICE. Díaz said she thought she had already been granted asylum.

“When a person first gets here, they don’t know how things work, and nobody explained it to me,” she said.

The asylum process can be baffling, and, as Díaz learned, navigating it without a lawyer can be disastrous. Unlike in criminal cases, people in federal immigration court have no right to a court-appointed lawyer if they can’t find their own.

Like Díaz, thousands of newly arrived asylum seekers never get their day in court. They can be tripped up by paperwork, and a clerical error can be enough to get them deported.

Last year a third of all immigrants in asylum cases did not have representation, according to data analyzed by the Transactional Records Access Clearinghouse, or TRAC, a research center at Syracuse University. And over the past two decades, just 10% of asylum seekers without legal representation won their cases, while those with lawyers were nearly four times as likely to win protection, according to TRAC’s data.

The luckiest lunch break

After passing an initial asylum screening, Díaz and her kids were released from family detention on June 20, 2018, and told to check in with ICE before her one-year parole document expired. So on June 13, 2019, Díaz voluntarily went to the ICE office in Sacramento. She was instructed to return on June 20 with all her documents, which she did. That day, ICE officials put her in a GPS ankle monitor. On July 12, they summoned her again, and that’s when she learned she had been ordered deported “in absentia” by a Los Angeles immigration judge on Nov. 27, 2018.

ICE officials told Díaz they planned to deport her that same day. But first, the office was closing for lunch.

“I went outside, sat down and burst into tears,” Díaz said. “I cried because I had gotten all the way here with my three children and I couldn’t imagine taking them back to Honduras.”

A pair of immigrant rights advocates with NorCal Resist who were leafleting outside the ICE building stopped to check on Díaz, said Katie Fleming, director of the removal defense program at the California Rural Legal Assistance Foundation in Sacramento. The advocates drove her to Fleming’s office and made an urgent plea for legal help.

“We were able to talk to her and then advocate with ICE to give her a few more days to be able to try to reopen that removal proceeding because she did not know about it,” Fleming said.

The swift response by the activists and lawyers was an incredible stroke of luck for Díaz. Attorneys succeeded in reopening her case. And in March, with Fleming representing her, she won asylum for herself and her children.

But what Díaz experienced is common for asylum seekers without a lawyer. Fleming said Díaz’s case shows how even people with legitimate claims to asylum can be ordered deported without getting a chance to make their case to a judge.

“She didn’t understand, as most people don’t, what the next process entailed in terms of applying for asylum,” she continued. “She didn’t realize that going to an ICE office is different from going to court.”

Judge Phan turned to a towering stack of blue folders for those not present. Then she signed deportation orders for 23 people who failed to appear.

Immigrant rights advocates have long argued for universal access to counsel for people in removal proceedings. In a January 2021 report, the American Bar Association made a series of recommendations for how the incoming administration of President Joe Biden could make the immigration system more fair and efficient by providing government funding for lawyers, among other things.

The stakes for people who are deported can include persecution, torture and death, the report noted.

“Unrepresented individuals in removal proceedings are inherently disadvantaged in an adversarial system in which the government is always represented by an experienced attorney,” the report warned.

The Biden administration has asked Congress to budget $15 million to provide representation to families and children, and $23 million for legal orientation programs, but Congress has yet to act.

Deported in absentia

When a person fails to appear for a hearing in immigration court, they can be ordered removed from the country in absentia. That’s what happened to Díaz, and it’s been happening with alarming regularity at San Francisco’s immigration court, according to Milli Atkinson, who runs the Immigrant Legal Defense Program at the Bar Association of San Francisco.

Atkinson said judges handed out scores of deportation orders in absentia from August to November under a new system ostensibly aimed at correcting bad addresses when mail was returned as undeliverable.

“What the court started doing in August is purposely taking cases that they knew people were unlikely to get their mail and rescheduling their hearing and sending a new notice out to an address that the court knows is incorrect,” Atkinson said. “Some of the judges were just reading off their names and their case numbers and ordering them removed in bunches, without looking at the individual file, making sure the information was all correct and really making no attempt to contact the individuals.”

It’s a self-defeating system, Atkinson said, because most immigrants never get the new notice, so they miss their new court date.

She acknowledged that it’s the responsibility of individuals to notify the court within five days every time they move. But many people in removal proceedings are checking in regularly with ICE under a supervision program, she said.

“A lot of times ICE and the government attorneys have information about where these people are and what their current addresses are, and they have no legal obligation to share those with the court,” she said.

At one “returned notice” hearing in San Francisco in late October, Judge Susan Phan had 31 cases on her afternoon docket, but only six of the people were present.

One woman in the courtroom was Nichol Valencia, a fluent English speaker originally from the Philippines who’s married to a U.S. Coast Guard officer. She said she learned that her December hearing date had been rescheduled for October when she checked the court’s website, concerned that COVID-19 might interfere with court business.

“We called you in today because we were concerned you were not getting hearing notices,” Phan told Valencia. “Even though you submitted your new address to the ICE officer, you have to separately submit it to the court.”

“I did submit a blue form to the court,” responded Valencia, who again provided her new address.

After scheduling a new hearing for Valencia in February, Judge Phan turned to a towering stack of blue folders for those not present. She rescheduled two cases, telling the ICE prosecutor he needed to provide more evidence. Then Phan signed deportation orders for 23 people who failed to appear.

Atkinson said she thinks the new system was an effort to cope with the court’s massive backlog, which recently surpassed 1.5 million cases.

“This was a way to help some cases get back on track that might have otherwise lost contact with the court, but the actual result is they’re deporting people in very high numbers,” she said.

In November, Atkinson sent a letter on behalf of a group of Bay Area legal advocates to the presiding judge for the San Francisco court expressing “grave concerns” about the returned notice dockets, arguing they violate the constitutional due process rights of people who are ordered deported in absentia.

In addition, the letter said, the COVID-19 pandemic has caused housing instability for many immigrants and restricted their access to legal services, two reasons the court should be more understanding.

In December, an official for the court system replied, calling the approach a “longstanding practice” for immigration courts throughout the country.

Courts “routinely create dockets for cases with returned hearing notices for efficiency and docket management,” wrote Alexis Fooshé, the communications and legislative affairs division chief of the Executive Office for Immigration Review. “Like every case before the court, immigration judges make decisions based on the specific and unique factors of each case in accordance with applicable law.”

Atkinson said if people in immigration proceedings had the right to court-appointed counsel, attorneys would help with the simple but essential task of keeping contact information current.

“And all of your mail would go to the lawyer’s office, so that would be a huge problem solved right there,” she said.

Díaz did not have a lawyer to sort out the mess caused when ICE erroneously entered her brother’s address. She’s grateful that the two advocates stopped to help when they saw her weeping outside the Sacramento ICE office.

“If they hadn’t been there, I wouldn’t be here,” she said. “I’d be back in my country and God knows what would have happened to me there.”

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

Garland’s epic failure to address the festering mess in his wholly-owned Immigration Courts is an ongoing and ever-escalating national catastrophe with cosmic human consequences and implications that go to the very future of our nation as a Constitutional democracy!

It’s also a betrayal of not only Biden’s campaign promises, of almost every so-called American value, but also of basic human decency and morality.

For every “lucky individual” like Rosa, there are thousands, probably tens or even hundreds of thousands, who “fall through the gaping, largely Government-created holes” of Garland’s ridiculously broken system.

That includes tens of thousands of potential refugees improperly turned around at the border because Garland has failed to: 1) stand up for the rule of law; and 2) establish a functioning asylum system in his Immigration Courts with competent, qualified judges and professional administrators.

I simply don’t know how he gets away with it! But, he does!

And advocates, NGOS, and supposedly “progressive” Dems in Congress seem to be too discombobulated or too feckless to get his attention and demand that he change his behavior. So, the carnage continues!

The ones who play the biggest price for Garland’s failures are the “unlucky Rosas” — men, women, children, many legally entitled to protection, the most vulnerable among us, who deserve better!

🇺🇸Due Process Forever!

PWS

01-05-21

From our leader and spokesperson “Sir Jeffrey” Chase:

Round Table Brief cited today in Oral Argument

🇺🇸Due Process Forever!

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From Austin Kocher:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever,

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🇺🇸Due Process Forever!

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Dan Kowalski on LexisNexis:

CA5 “Overlooked Evidence” Remand: Emmanuel-Tata v. Garland (unpub.)

🇺🇸Due Process Forever!

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Maria Sacchetti & Sean Sullivan report for WashPost:

🇺🇸Due Process Forever!

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Deepa Fernandes for the SF Chron:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Olafimihan Oshin reports for The Hill:

🇺🇸Due Process Forever!

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By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

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Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Tyche Hendricks reports for KQED:

🇺🇸Due Process Forever!

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