Thread by @NicoletteGlazer

AG Barr promoted 6 immigration judges with high asylum denial rates to be hybrid appellate and overflow immigration judges as part of a revamping of the BIA which comes w proposed organizational regs sfchronicle.com/politics/artic…

These promotions which sends a very clear message to the field are the next step in AG efforts to eliminate any semblance of due process in immigration court adjudications & will have far reaching effects. Here are the major changes from the interim proposed regs of this morning

Buried in a morass of internal reshuffling of component & deputy of components that lift the veil of the immigration bureaucracy are some changes that are not benign.
First-- soon BIA members will be sporting the title of 'appellate immigration judges' Woo-hoo!

I hope someone has pointed to AG & cie that just re-naming BIA members as "appellate judges" will not confuse or lead anyone into thinking that EOIR is an independent court system. Just sayin'

Second, building on the single board member decision must be made within 90 days from record (meaning transcript production); 3-mem panel decision in 180 days from ROP, the new Regs provide for 60 days extension in "exigent circumstances" ...

Call me crazy but other than in detained cases or pro se appeals when was the last time that you got a decision in those timeframes? The only way to produce time compliant decisions considering the current backlog is the BIA members to churn between 14-35 decisions a day!!!

Well, they tried that 5-6 yrs ago & that pesky 'meaningful involvement' requirement did not sit well with circuit courts of appeal who were just not ready to allow robo-signed immigration decisions. But new day, new stacked up circuit courts ... who knows how will this turn up.

But also this goes hand in hand w the "affirmance without opinion" abomination which disposes of an immigration appeal with one paragraph and no finding or analysis. So, picture a bureaucrat sitting behind a giant mahogany desk with stacks of cases (well now they are folders ...

... in computers) who has to get them all out w/in 90 days of lending in his folders. He/she does not have to write an opinion explaining why he is agreeing with IJ denial. All he has to do is clip & past the name & A# to the same one paragraph AWO decision & he is done.

With that one paragraph decision comes the finality of the denial of benefits and the order of removal becomes final and executable ... This is the result the Admin is after: speedy deportations at the expense of due process.

Third, the proposed regs have a new twist for rocket-docket. If the members or panel cannot produce a decision within the 90/180 days plus 60 days extension then ... wait for it ... the Chairman SHALL assign the delinquent cases to
* himself
* deputy Chairman
* BIA Director

those referred decision must be issued within 14 days of referral to Chairman or Deputy Chairman. No decision deadline for referrals to the Director of the BIA. But here is the gem: Director can issue precedental decisions by himself or refer any case to the AG. Uh-uh!

So, it looks like in addition to expanding the BIA and tightening speed of decisions, this regs are silently setting the stage for OIL and AG attorneys to pick up the slack and churn asylum denials. That district court may stay certain decision have little effect when the rules

... enjoined are applied just the citation is to a circuit court decision just not the one that has been enjoined or under attack. There is always a citation to slap to support ANY finding, we all know that.

Fourth, this one is plain SCARY. The proposed regs provide that if a dissenting or concuring panel member does not produce his respective dissent/concurrence within the 60 days extension, the majority decision WILL be published without dissent/concurence. Let me unpack this ...

If a "renegade" appellate immigration judge just does not have the stomach to sign on a particular majority he/she has a firm 60 days to produce it dissent/concurence OR lose its voice!!! Chew on this, censorship!

Now, this picked up my interest: "General Counsel may take a position on immigr law through the complaint process involving an adjudicator’s decision that is arguably neither the best nor only view of the law, leaving EOIR’s adjudicators uncertain as to whose view to follow in...

... order to adjudicate cases without risk of potential discipline or corrective action." Hmmm, WTF?

GC is pushing junk interpretation during complaint process and IJs do not know what the F* they are talking about? Well color me stupiid!

Then there is this: BIA Director "may provide for appropriate administrative coordination with the Department of Health and Human Services
(“HHS”)", DHS etc. What administrative coordination are we talking about exactly?

Perhaps this is the stepping stone for putting in place the HSS "adjudication officers" that Admin is planing to conduct "bond hearing" instead of IJ immigrant kids under the new Flores Regulations (more on that abomination later)

Well, if you happen to be reading this -- please accept my apologies for boring you to death. It was not my intention but these proposed regs are just torture ... I am complicit by tweeting about. Grrr.

Take care!

Some more on new EOIR regulations: (Yes! I know it is boring but it is also very sinister, & could be potent secret weapon Admin is deploying).
***
reading it the first time I glanced over the new 'Office of Policy' under the authority of the Director that has been now created.

The purpose of the 'Office of Policy' is to set up ... you guessed ... policies. But the BIA is an administrative appeal body: the only policies they set and shape are though precedent decisions and rules of appellate practice.

'Office of Policy' is under direct power grab of the Director of the BIA who until now had no adjudicative authority what so ever but was glorified manager or court administrator but also political appointee Basically giving a political ally a cushy job hidden from prying eyes

Well, now this political appointee HAS adjudicative role but also will be setting up 'policies' ... we do not know what the drafters of regs had in mind but reading between the lines it appears that the goal of those policies is to dismantle and hinder legal representation.

For one,the Office of Legal Assistance Programs will now be under the Director's authority and within the Office of Policy. Now, OLAP exists for the sole purpose of providing legal orientation to immigrants placed in removal proceedings.

It also runs the Pro Bono Representation Program Lists (list of non-profit organisations that has been qualified by the EOIR to provide pro bono and low bono representation to immigrants. Stacksof the list are in every IJ courtroom & is given to every unrepresented immigrant.

Placing OLAP under the Director's sole authority is likely to result in severe restrictions to the 'know you rights' presentations and their replacement with video [remember this is what they replaced in-person interpreters with]

Also part of OLAP was theLegal Orientation Program for Custodians of Unaccompanied Alien Children which provide legal orientation presentations to the adult caregivers (custodians) of unaccompanied children in EOIR removal proceedings. Expect these to be revamped & killed soon

The new regulations "removes references in the regulations to OLAP and the OLAP Director" and shifts them into obscurity to be ran by the BIA director. So, the next time we try to cite to "authority" for statutory and regulatory due process safeguards ... it will not be there.

But there is another layer of bureaucratic unseemliness within the new regulations: the Assistant Director of Policy. If you are having flashbacks of Brazil and the fly that jams the printer, well I right there with you ...

So, the Assistant Director of Policy will administer the accredit representatives program meaning it will decide which non-attorneys will be given the authority to represent immigrants in removal proceedings.

I know that some have criticized allowing non-attorneys to represent immigrantsbefore the immigration court but such criticism is fully unfounded. The registered representativesI know and have observed are some of the most knowledgeable and qualified advocates for immigrants.

But legal representation &non-profit organisations have been at the forefront of Trump's and former AG Session's furor so now that one bureaucrat can decide both all decision for accreditation and also has authority to administratively terminate the recognition of
an organization

... I would not be surprised that EOIR will start to target accredited representatives. The reason is obvious: eliminating the availability of pro bono representation will bring the pool of unrepresented immigrants in #MPP and credible fear review close to 100%

Combining rocket dockets with no available representation to indigent applicants assures that new arrivals will be processed from arrival to final order of removal within months.

Even if courts continue to restrict Admin's effort to detain ppl during proceedings once order of removal becomes final under the INA ICE is directed to expeditiously execute those final orders of removal. Coordination with ICE and HHS would allow EOIR to head depotation machine

Bottom line unless Congress steps up and does its job to amend the INA & implement a comprehensive immigration reform we will continue to play immigration whack-a-mole: regulations will be enjoined, another one will come up, another court will waffle ... ppl suffering continues.