Harris's comments yesterday about their plan to hire more immigration judges should be concerning to anyone who has followed the way the EOIR has hired immigration judges and BIA members in the last four years. Putting more pieces into this broken machine won't fix it.
The EOIR made specific, unprecedented changes to the hiring process in the last four years to place unqualified candidates with high denial rates into these positions (reupping this 10/19 piece from @tanvim). rollcall.com/2019/10/29/doj…
In another example, the DOJ hired Guantanamo judge Vance Spath and spent 2 years negotiating the position with him while he was a sitting judge hearing cases where the DOJ was a party (see this piece from @carolrosenberg) nytimes.com/2019/04/16/us/…
The DC Circuit called the result an "intolerable cloud of partiality" but that didn't deter the EOIR. abajournal.com/web/article/dc…
Quite the opposite, just one year later Spath was elevated to the position of Assistant Chief Immigration Judge.
Through FOIA we also found that EOIR had changed its pay scale policy specifically so it could hire Spath after saying only weeks earlier that it was unable to do that. Handwritten notes scribbled on an email describe the gymnastics that let them avoid an official policy change.
That FOIA request is here if people are interested. muckrock.com/foi/united-sta…
Spath came with a concerning record - including for example confining a Marine general in charge of the court's defense teams to his Guantánamo quarters in a contempt conviction that a federal court later reversed. miamiherald.com/news/nation-wo…
The "contempt"? Allowing civilian defense attorneys to withdraw from the defense efforts after they discovered the government had hidden a microphone in their attorney-client meeting room.
The judge who took over for Spath at Guatanamo was Shelly Schools. But the DC Circuit said Schools, too, had applied to be an IJ while hearing cases where the DOJ was a party.
Nevertheless, EOIR hired schools as an IJ at the Harlingen Immigration Court, which currently as an extremely high asylum denial rate. trac.syr.edu/immigration/re…
There's still so much we don't know because FOIA requests remain pending, records come back heavily redacted, personnel records are sometimes exempt from FOIA, etc. Although EOIR gave us Spath's hiring records, it GLOMARed Schools' hiring records.
There is more. These are just a couple examples. The point is that "hiring more immigration judges" sounds like a quick, easy fix, but its not.

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More from @MatthewHoppock

12 Jan
On Jan 4 the Eighth Circuit issued a pretty awful opinion on eligibility for a fraud waiver after a person is denaturalized for fraud, essentially endorsing gamesmanship by the DHS without notice. The case is Herrera Gonzalez v. Rosen. ecf.ca8.uscourts.gov/opndir/21/01/1…
Petitioner admitted she had gotten her permanent residence through fraud (which led to a criminal conviction and later denaturalization). The government charged her with removability for the fraud, and she applied for the waiver that is allowed under that section.
After the judge had sustained the fraud charge, the DHS added a new charge that the marriage fraud conviction was a "crime involving moral turpitude." Then, at trial, the DHS withdrew the fraud charge, leaving only the CIMT charge, and argued there was no waiver for just the CIMT
Read 12 tweets
28 Dec 20
Last week the @DOJ_EOIR quietly updated its list of "Myths vs. Fact." I haven't factchecked the new one, but it's much longer and at first glance appears to even more misleading than the previous one. justice.gov/eoir/page/file…
Also, EOIR uploaded the new one at the same URL as the prior one, which effectively removes the prior one from the internet. I've saved a copy of the old one here: hoppocklawfirm.com/myth_vs_fact_0…
The first one, which McHenry seems to have unilaterally issued in May 2019, was met with confusion and disbelief by others in the agency, including the union representing immigration judges. They have since been decertified, so lexisnexis.com/legalnewsroom/…
Read 10 tweets
14 Dec 20
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 20
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.
Read 7 tweets
11 Dec 20
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 20
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...
Read 13 tweets

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