New EOIR policy memo PM 12-08 on the pro bono legal services list. Acknowledges IJs are required by regulations to "advise" all responents of the availability of pro bono legal services (which the case flow processing memo would make impossible). justice.gov/eoir/page/file…
Also acknowledges that when the respondent expresses a fear of persecution, at the time of filing an asylum application the statute requires the IJ to again give the respondent a copy of the current pro bono list. See 8 USC 1158(d)(4)(B). law.cornell.edu/uscode/text/8/…
Again, the new case flow processing memo makes that impossible because the hearing at which represented folks will be filing the asylum application gets cancelled. And, it's not true that represented folks don't need access to pro bono counsel. Attorneys withdraw...
The memo says case flow processing addresses this by sending a list with the "initial master calendar" notice, but that's silly. 8 CFR 1240.10a2 requires an advisal, and 8 USC 1158d4B requires *another* copy of the list at the time they apply for asylum.
That might sound nitpicky, but the list changes - and in many cases it is a period of years between the first hearing and when the person applies for asylum, for lots of legimate reasons.
Then the memo says they're keeping some of the protections for pro bono counsel who appear "at master calendar hearings" although case flow processing cancels those master calendar hearings, so...
Then the memo encourages fast-tracking asylum cases to encourage pro bono representation, since big firms who have "pro bono coordinators" said the court's backlogs (which EOIR is responsible for) make it harder for them to take pro bono cases.
The memo grossly misstates this survey by omitting that it only involved 24 pro bono coordinators which were from "the nation’s largest law firms." Their main concern was turnover at their own firms. BUT Large firms don't do the bulk of pro bono work here. from the report:
Next the memo talks about the "BIA Pro Bono Project" but the EOIR has largely scuttled that. It stopped letting @cliniclegal screen cases in 2019 and has largely stopped working with them on the project, as far as I know.
Then the memo mentions the "Request a Speaker Form" I tweeted about earlier. I hadn't seen this when I posted about that. The memo confirms all such requests will have to be authorized before EOIR employees can speak.
The fast-tracking of asylum cases when there is already pro bono representation is the main headline here, and it is both illogical and contradicts later guidance in the memo.
It's illogical, because it applies to cases where there is *already* pro bono rep, but the stated reason is that big firms won't take on pro bono rep because of backlogs. In essence, the mad hatter must first serve the cake before cutting.
It's inconsistent because the memo closes by saying judges can't base decisions on these cases on whether counsel is pro bono.

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More from @MatthewHoppock

14 Dec
New policy memo from @DOJ_EOIR about implementing the "death to asylum" regulations which don't go into effect for another month and will likely be enjoined before then. justice.gov/eoir/page/file…
As others have noted, the DHS portion of the rule suffers from the same legal problem as other recent DHS regs: the DHS doesn't have a a Secretary, and Chad Wolf's appointment as "acting" secretary was unlawful.
Also, both the DHS portion and the DOJ portion are plainly inconsistent with the statute and suffer from other APA problems (including not engaging in notice and comment in good faith).
Read 13 tweets
14 Dec
Spent the weekend reading this 600-page CIA report on the attempts to deport suspected Nazi war criminals. Lots of bad looks here for @JusticeDept. The report is posted in multiple parts on the CIA's CREST database. I combined them and uploaded them here: ia601406.us.archive.org/19/items/cia-a…
The report details a number of instances where federal agencies protected Nazi war criminals for years when it was beneficial and not publicly embarassing. Then when they were sufficiently embarassed the DOJ OSI tried to deport them but used shady evidence supplied by the USSR.
In the case of Edgars Laipenieks, even George H. W. Bush gets in on it. By the way, the article this report cites is also available in CREST. It says Bush "refused to elaborate" further. Image
Read 7 tweets
11 Dec
Another EOIR policy memo posted yesterday eliminates some of the adjournment codes previously existing, including adjournments to allow respondents to file applications for asylum and other relief. justice.gov/eoir/page/file…
This removes Code *05 (for filing asylum app), *06 (for filing other apps), *22 (rejected earliest hearing), ǂ23 (asylum app withdrawn), 24 (DHS to complete prints), *51 (contested charges).
This memo adds two new adjournment codes related to "case flow processing" - 9V (vacated MC hrg), and TQ (case reviewed for readiness and placed in trial queue). Not sure what TQ is supposed to be for. Btw prior memo's here: justice.gov/eoir/page/file…
Read 11 tweets
11 Dec
Yesterday @DOJ_EOIR posted this "Request a Speaker" portal to its website. Seems this would be related to the NAIJ suit saying EOIR won't let judges speak publicly. justice.gov/eoir/webform/r…
In July, the @Imm_Judges_NAIJ sued EOIR over the policy. Judge O'Grady in the EDVA denied an injunction in August, which NAIJ appealed to the 4th Cir. NAIJ filed its brief in September. Then on Nov. 2 the Federal Labor Relations Authority decertified the union.
Then, after the union was decertified, the EOIR filed its 4th Circuit brief saying NAIJ no longer had standing to challenge the public speaking policy, which I'm linking to her. assets.documentcloud.org/documents/2042…
Read 4 tweets
9 Dec
This answer was wrong also, and "status dockets" are largely nonexistent. EOIR's spokesperson knew that btw. Here's a little more on "status dockets."
There's an August 16, 2019 memo PM 19-13 which says judges can but don't have to implement a "status docket" but giving guidance where judges want to implement them. It's here. justice.gov/eoir/page/file…
"status dockets" are a great idea and work very well to do what EOIR says it wants to do here. FOIA results from November, 2019 show status dockets reduce backlog and hearing wait time. cdn.muckrock.com/foia_files/201…
Read 10 tweets
9 Dec
To be clear, the new process is entirely illegal and probably unconstitutional. 8 CFR 1240.10(a) - (c) require a hearing where the IJ reads and explains the charging document, takes an oral pleading, determines removability. If they can't sustain, (e) lets DHS add allegations
Once removability is determined, the judge is supposed to ask the respondent to designate the country of removal. Then under (f) the judge identifies alternative country of removal. *Then* under 8 CFR 1240.11(c) the applicant gets to apply for asylum.
You can't apply for asylum from a country that the judge hasn't even identified yet. And lots of cases aren't clear about what country of removal is even going to be involved. It's not automatic. There is a designation process.
Read 6 tweets

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