⚾️🤯 “CAN’T ANYBODY HERE PLAY THIS GAME?” — BIDEN’S “BUSH LEAGUE” DISSING OF ASYLUM SEEKERS & THEIR PROGRESSIVE SUPPORTERS COULD BE “STRIKE THREE” FOR OUR DEMOCRACY!😞 — Baseball Is A Great Example Of How Biden’s “Miller Lite” Approach To Immigration & Ignoring The Experts Is Wrong & Costly! — “[T]here are no curses except those that are self-inflicted by cheap, regressive thinking.”🤯

Casey Stengel
“The Dems’ wrong-headed “Miller Lite” approach to immigration and the border would leave Casey scratching his head. With “major league talent” available, they have put an “amateur night at the Bijou” team on the field for what is perhaps the most important season in modern American history!
PHOTO: Rudi Reit
Creative Commons

https://www.washingtonpost.com/opinions/2024/02/21/baseball-immigrants-diversity/

Jaswinder Bolina writes in WashPost:

As a former president of the United States excoriates immigrants for “poisoning the blood” of our country, as the governors of Texas and my current home state of Florida bus and fly migrants to points north — including my hometown, Chicago — my thoughts turn to baseball.

. . . .

While that inhospitable bunch has been villainizing migrants and refugees as a strain on U.S. resources, I have been marveling at how much foreign-born players have enlivened (and enriched) baseball in recent decades. Far from being poisoned, the sport has been rejuvenated by infusions of immigrants from Ohtani to Soto to Ronald Acuña Jr., Yordan Álvarez, Ha-Seong Kim, the Cubs’ Seiya Suzuki and so many others.

As these non-White non-Americans wow — and earn — millions with their transcendent talents, in a sport still emerging from its startlingly racist past, bigoted fictions about the “blood of our country” are being exposed. It’s true that baseball is still struggling with exploitative international recruiting practices, decreasing numbers of U.S.-born Black players and a lack of diversity among its executive ranks. Yet the increasing number of foreign-born major leaguers now counted among the best in the game’s long history dispels the self-aggrandizing myth that the United States possesses any monopoly on excellence.

The Republican presidential front-runner might argue that undocumented migrants and refugees aren’t elite athletes and are instead “animals” arriving from “s—hole countries.” But such dehumanizing insults are not only guilty of offensive fixation on national origin, ethnicity and race. They also mistake a person’s predicament for a person’s potential.

This is made plain by the origin stories of some of baseball’s biggest stars. Those same players who fashioned makeshift mitts out of milk cartons and cardboard, who rose to the game’s highest levels through arduous, harrowing and near-tragic journeys, might have languished on the other side of a barbed and militarized wall if this country’s right wing had its way.

The politicians who would build those walls, who attack immigrants for supposedly burdening our national resources, need only consider baseball’s explosive growth into a $10 billion industry and the financial value of Ohtani alone to the Dodgers — some estimate the team could make more than $1 billion off his deal over the course of a decade — to see that industries and economies thrive by inclusion, not exclusion.

Even so, ideologues seek to end inclusive practices in private industry and public education. They guarantee endless winning and new revolutions by promising to slash resources and wall off our country — all while whiffing on the most rudimentary of winning principles understood by most every baseball fan in America:

Great teams are made great by deep, diversified rosters. They are built on investment in both homegrown and international talent. And there are no curses except those that are self-inflicted by cheap, regressive thinking.

As the Republican presidential primary churns toward that party’s national convention, coincidingthis July with baseball’s annual All-Star Game, all of this will be evident to anyone ready to take a break from the campaign, take a seat in the bleachers and take in the world’s greatest ballplayers thriving at America’s game.

Jaswinder Bolina is a poet and essayist. His latest book is “English as a Second Language and Other Poems.”

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

Read the full op-ed at the above link!

“Mistaking a person’s predicament for a person’s potential!” That’s exactly what Biden’s new-found attacks on asylum seekers and their advocates (his 2020 supporters!) are doing!

Biden is flying in the face of the sage advice for running on a pro-immigration, pro-asylum, pro-rule-of-law platform cogently set forth by Beatriz Lopez on Substack and reposted here on Courtsidehttps://immigrationcourtside.com/2024/02/21/%f0%9f%91%82listen-up-biden-campaign-dems-a-dynamic-latina-leader-%f0%9f%a6%b8%f0%9f%8f%bd%e2%99%80%ef%b8%8f-has-the-formula-for-success-%e2%9c%8c%ef%b8%8fon-immigration-in-2024-sequence/.

It’s not quite too late for Biden to start fixing the asylum and resettlement system at the border and elsewhere so it works in a fair and timely manner for America and forced migrants. But, he can’t do it with the lame advice he’s getting from his advisors, his own moral relativism, and the failed leadership at DOJ and DHS. He needs to move the “bush leaguers” aside, bring in, and pay attention to, some “major league talent” before it IS too late. See, e.g.,https://immigrationcourtside.com/2023/12/19/%E2%9A%96%EF%B8%8F%F0%9F%A4%AF%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A8%F0%9F%8F%BB%E2%9A%96%EF%B8%8F-as-garlands-backlog-hits-3-million-way-past-time-to-clean/.

It’s painful to watch the errors pile up and the game slipping away from the Dems! 😣 Meanwhile, rather than being out there helping unify and re-elect Biden and Harris, advocates are marshaling their resources and considerable energy to fight tooth and nail in courts against the Administration’s apparent bone-headed intention to violate asylum law and human rights with illegal asylum bars! Energizing former core supporters to fight against your inane and immoral actions during an election year: A “strategy” that only inept, tone-deaf Dem politicos could love!

🇺🇸 Due Process Forever!

PWS

02-22-24

‼️⚖️🗽ATTENTION: NDPA PRACTICE ALERT: USCIS Announces FY 2025 Diversity Visa (“DV”) Window!

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera

Submitted by Professor Alberto Benitez at GW Law Immigration Clinic: 

The entry submission period for the FY2025 Diversity Visa lottery is from 12:00 pm (ET) on October 4, 2023, to 12:00 pm (ET) on November 7, 2023. Please see the attached.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax

abenitez@law.gwu.edu

THE WORLD IS YOURS…

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

pastedGraphic.png

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

Thanks my friend!

The window opens,

Open Window
Open Window

And the window closes.

Closed Window
Closed Window

🇺🇸Due Process Forever!

PWS

09-30-23

☠️⚰️ “STORY KILLERS” — TAYLOR LORENZ @ WASHPOST REPORTS ON WORLDWIDE EPIDEMIC OF VIOLENCE AGAINST WOMEN & HOW FEMALE JOURNALISTS ARE PARTICULAR TARGETS FOR ABUSE — Biden Administration Largely MIA, Failing To Effectively Address Systemic Problems For Women Seeking Refuge From Gender-Based Persecution! 

Taylor Lorenz
Taylor Lorenz
Reporter
Washington Post
PHOTO:Taylorlorenz.com

https://www.washingtonpost.com/investigations/2023/02/14/women-journalists-global-violence/

Taylor Lorenz writes:

. . . .

The ordeal of Farooqi, who covers politics and national news for News One in Pakistan, exemplifies a global epidemic of online harassment whose costs go well beyond the grief and humiliation suffered by its victims. The voices of thousands of women journalists worldwide have been muffled and, in some cases, stolen entirely as they struggle to conduct interviews, attend public events and keep their jobs in the face of relentless online smear campaigns.

Stories that might have been told — or perspectives that might have been shared — stay untold and unshared. The pattern of abuse is remarkably consistent, no matter the continent or country where the journalists operate.

Farooqi says she’s been harassed, stalked and threatened with rape and murder. Faked images of her have appeared repeatedly on pornographic websites and across social media. Some depict her holding a penis in the place of her microphone. Others purport to show her naked or having sex. Similar accounts of abuse are heard from women journalists throughout the world.

. . . .

This article is part of “Story Killers,” a reporting project led by the Paris-based journalism nonprofit Forbidden Stories, which seeks to complete the work of journalists who have been killed. The inspiration for this project, which involves The Washington Post and more than two dozen other news organizations in more than 20 countries, was the 2017 killing of the Indian journalist Gauri Lankesh, a Bangalore editor who was gunned down at a time when she was reporting on Hindu extremism and the rise of online disinformation in her country.

New reporting by Forbidden Stories found that shortly before her slaying, Lankesh was the subject of relentless online attacks on social media platforms in a campaign that depicted her as an enemy of Hinduism. Her final article, “In the Age of False News,” was published after her death.

. . . .

Until news organizations recognize the purpose of harassment campaigns and learn to navigate them appropriately, experts say, women will continue to be forced from the profession and the stories they would have reported will go untold.

“This is about terrifying female journalists into silence and retreat; a way of discrediting and ultimately disappearing critical female voices,” Posetti said. “But it’s not just the journalists whose careers are destroyed who pay the price. If you allow online violence to push female reporters out of your newsroom, countless other voices and stories will be muted in the process.”

“This gender-based violence against women has started to become normal,” Farooqi said. “I talk to counterparts in the U.S., U.K., Russia, Turkey, even in China. Women everywhere, Iran, our neighbor, everywhere, women journalists are complaining of the same thing. It’s become a new weapon to silence and censor women journalists, and it’s not being taken seriously.”

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

“Not being taken seriously” aptly describes the attitude and actions of the Biden Administration toward some women seeking asylum on the basis of gender-based violence. Certainly, our Government could and should do better at recognizing and prioritizing refugee and asylum status for this vulnerable group.

Recently, I published a “happy ending” story from my friends over at the GW Law Immigration Clinic, involving an Afghan female attorney granted asylum by the Arlington Asylum Office. https://immigrationcourtside.com/2023/02/15/🗽🇺🇸-i-hope-to-rebuild-my-life-here-i-cant-save-my-country-but-i-can-save-myself-and-my-family-gw-law-immigration-clinic-asylum-laws-save-another-l/

Yet, even this “slam dunk” case took nearly six months to adjudicate. Seems like it could and should have been granted at the interview in a well-functioning system. Better yet, most Afghan refugees could have been screened overseas and admitted in legal refugee status, thus avoiding the backlogged asylum system and freeing both USG and private bar resources for more difficult cases. 

My friend and Round Table colleague Judge Joan Churchill and the National Association of Women Judges have petitioned the Biden Administration to offer refuge to as many as 250 Afghan female judges whose lives are in grave danger. https://immigrationcourtside.com/2021/08/19/🗽⚖️human-rights-immigration-judges-speak-out-for-afghan-women-judges-national-association-for-women-judges-call-to-protect-courageous-afghan-women-featured-in-was/

Yet, I am aware of no guidance, precedent, or directives recognizing refugee status or directing grants of asylum for Afghan women. In the meantime, several European nations have determined that all women who have fled Afghanistan can qualify as refugees. See, e.g., https://www.hrw.org/news/2023/02/09/denmark-sweden-offer-protection-all-women-girls-afghanistan.

Once, America was in the forefront of setting precedents that protected female refugees. See, e.g., Matter of Kasinga, 21 I&N Dec. 357 (1996) (FGM, opinion by Schmidt, Chair). Now, not so much, despite our nation’s heavy involvement with Afghanistan. Apparently, the “powers that be” are afraid that consistently and aggressively supporting refugee protection for women fleeing Afghanistan and other dangerous countries would “encourage” them to actually seek legal protection here thereby upsetting right-wing nativists and misogynists.

Mexico is one of the most dangerous countries in the world for both journalists and women. See, e.g.,  https://monitor.civicus.org/updates/2022/05/10/mexico-vicious-attacks-against-women-journalists-and-hrds-continue/. 

Yet, incredibly, the Biden Administration proposes to send up to 30,000 rejected NON-MEXICAN border arrivals per month to Mexico without fair examination of their potential asylum claims. To date, BIA precedents, regulations, and policy statements have NOT recognized the well-documented, clear and present dangers for journalists, women, and particularly female journalists, in Mexico. Consequently, I’d say that there is about a 100% chance that some female journalists seeking asylum will be illegally returned to death or danger, whether in Mexico or their native countries. 

Just can’t make this stuff up. Yet, it’s happening in a Dem Administration!

AG Merrick Garland did vacate former AG Jeff “Gonzo Apocalypto” Sessions’s lawless and misogynistic decision in Matter of A-B-. That action “restored” the BIA’s 2014 precedent decision in Matter of A-R-C-G-, recognizing that gender-based domestic violence could be a basis for granting asylum. 

However, the BIA didn’t elaborate on the many forms that gender-based persecution can take, nor did they provide binding guidance to Immigration Judges on how these cases should be handled in accordance with due process, fundamental fairness, and best practices.

Garland and his BIA have failed to follow up with any meaningful guidance or amplification of A-R-C-G- for Immigraton Judges. That’s even though many women fleeing Latin America come from countries where gender-based violence is rampant and the governments make little or no effective efforts to control it — sometimes police and other corrupt officials even join in the abuses. 

Consequently, life or death protection for female asylum seekers remains a disgraceful and wholly unacceptable “crap shoot.” Outcomes of well prepared and copiously documented asylum cases often depend more on the attitude of the Immigration Judge or BIA Appellate Judge hearing the case than on the law and facts. 

Also, without a knowledgeable lawyer, which the Government does not provide, an applicant has virtually no chance of winning a gender-based protection case in today’s EOIR. Additionally, those in immigration detention or placed on Garland’s “accelerated/dedicated” dockets are known to have particular difficulty obtaining pro bono counsel.

Anti-asylum IJs, some of whom were known for their negative attitudes toward female asylum seekers — many of those who actually “cheered” Sessions’s biased and wrong reversal of hard-won asylum protection for women in EOIR courts — remain on the bench under Garland at both levels. 

To their credit, some have changed their posture and now grant at least some gender-based cases. But, others continue to show anti-asylum, anti-female bias and deny applications for specious reasons, misconstrue the law, or just plain use “any reason to deny” these claims, without any fear of consequences or meaningful accountability. 

Trial By Ordeal
Many advocates and experts would say that female asylum applicants still face “trial by ordeal” in Garland’s “overly Trumpy” EOIR. Despite campaign promises, the Biden Administration has done little to champion the cause of gender-based refugees and asylum seekers — at the Southern Border or elsewhere.  Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Whether or not such egregious errors and non-uniform applications of asylum law get reversed at the BIA again depends on the composition of the BIA “panel” assigned to the case. (Not all “panels” have three Appellate Judges; some are “single member” panels). Significantly, and inexplicably, a group of Trump-holdover BIA Appellate Judges known for their overt hostility to asylum applicants (with denial rates approaching 100%) and their particular hostility to gender-based claims, remains on the BIA under Garland. There, they can “rubber stamp” wrong denials while sometimes even reversing correct grants of protection by Immigration Judges below! Talk about a broken and unfair system!

With an incredible backlog of 2.1 million cases, approximately 800,000 of them asylum cases, wrongly decided EOIR cases can “kick around the system” among the Immigration Courts, the BIA, and the Circuits for years. Sometimes, a decade or more passes without final resolution! Imagine being a pro bono or “low bono” attorney handling one of these cases! You “win” several times, but the case still has no end. And, you’re still “on the hook” for providing free legal services.  

It’s no wonder that, like his predecessors over the past two decades, Garland builds EOIR backlog exponentially — without systematically providing justice or instituting long overdue personnel and management changes! It’s also painfully clear that, also like their predecessors, Garland and his political lieutenants have never experienced the waste and frustrations of handling pro bono litigation before the dystopian “courts” they are now running into the ground!

Meanwhile, Biden’s promise and directive that his Administration promulgate regulations containing standards for gender-based asylum cases that would promote fairness and uniformity within his OWN courts and agencies remains unfulfilled — nearing the halfway point of this Administration! Apparently, some politicos within the Administration are more fearful of predictable adverse reactions from right-wing nativists and restrictionists than they are anxious to “do the right thing” by listening to the views of the experts and progressives who helped put them in office in the first place! 

Thus, abused women and other refugees and asylum seekers, and their dedicated supporters, many of whom have spent “professional lifetimes” trying to establish the rule of law in these cases, face a difficult conundrum. In America today, neither major political party is willing to stand up for the legal and human rights of refugees, particularly women fleeing gender-based persecution. 

As an “interested observer,” it seems to me that something’s “got to give” between so-called “mainstream Dems” and progressive immigration/human rights advocates. The latter have devoted too much time, energy, courage, and expertise to “the cause” to be treated so dismissively and disrespectfully by those they are “propping up.” And, that includes a whole bunch of Biden Administration politicos who were nowhere to be found while immigration advocates were fighting, often successfully and against the odds, on the front lines to save democracy during the “reign of Trump.” 

That was a time when immigrants, asylum seekers, people of color, and women were the targets for “Dred Scottification” before the law. I have yet to see the Biden Administration, or the Dem Party as a whole, take a strong “active” stand (rhetoric is pretty useless here, as the Administration keeps demonstrating) against those who would use misapplications of the law, ignoring due process, demonization, and refusal to recognize the humanity of migrants as their primary tool to undermine and ultimately destroy American democracy!

Immigrants, including refugees, are overall a “good story” — indeed the real story of America since its founding. That Dems can’t figure out how to tell, sell,  advance, and protect the immigrant experience that touches almost all of us is indeed a national tragedy.

🇺🇸 Due Process Forever!

PWS

02-18-23

🗽 MAINE DELEGATION RENEWS BIPARTISAN PUSH FOR EARLIER EMPLOYMENT AUTHORIZATION FOR ASYLUM SEEKERS! — Effort Has Little Traction In Congress!

 

https://www.pressherald.com/2023/02/03/maine-lawmakers-continue-push-for-faster-work-permits-for-asylum-seekers/

Randy Billings reports for Portland Press Herald:

Federal and state lawmakers are renewing efforts to shorten the amount of time asylum seekers must wait before they can work and become self-sufficient.

Local officials in communities such as Portland, a destination for waves of people seeking asylum, have called on federal officials for years to reduce the waiting period for work permits, which is a minimum of six months and often much longer. They argue speeding up the process is a way to address workforce shortages as well as reduce the costs of providing financial assistance to asylum seekers who aren’t allowed to support themselves.

But every effort dating to at least to 2015, when Sen. Angus King of Maine submitted a bill to shorten the wait period to 30 days, has failed to gain traction in Congress because the appeals have been caught up in partisan and regional conflicts over immigration reform and border security.

Republican Sen. Susan Collins and Rep. Chellie Pingree, D-1st District, have proposed similar bills in recent years. And both are doing so again this session, while King, an independent, is signing on as a co-sponsor.

. . . .

Despite national polarization over the issue, calls for allowing asylum seekers to work and become self-sufficient are widely supported in Maine by Republicans, Democrats and independents. The fact that Maine has more jobs available than there are workers to fill them is a key reason for the broad support.

Even former Gov. Paul LePage, who opposed efforts to help asylum seekers during his eight years in office, revised his position during the gubernatorial campaign last fall, saying at a debate in Portland that “if asylum seekers are here, and (President) Joe Biden is not going to enforce federal law on immigration … I want to put them to work.”

Collins started pushing for the reform in 2019 and announced on Friday that she introduced a bill with Sen. Kyrsten Sinema, an Arizona independent and former Democrat, that would reduce the waiting period from six months to 30 days for asylum seekers who have gone through preliminary screening. And Pingree plans to reintroduce her bill in the House in the coming weeks.

. . . .

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

Read the full article at the link.

Gosh, when even former GOP right-wing Gov. Paul LePage is on board, seems like it should be a “no-brainer” for Congress. But, that isn’t the way things work (or don’t) on the Hill these days.

As to requesting a “waiver” of the current 180 day statutory “lock out” provision, there currently doesn’t appear to be any process for that. The statute does state that:  “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General.”

Therefore, it appears that the Biden Administration could establish a waiver process by regulation if it chose to. I’m not aware of any plans by the Administration to propose such a regulation.

The Administration has addressed immediate work authorization in their recently announced parole program for certain nationals of Venezuela, Nicaragua, Haiti, and Cuba. Individuals approved for this program abroad will be “paroled” into the U.S. for two years with work authorization.

The relief for states like Maine under this parole program is limited, because 1) only nationals of the four specified countries can apply; 2) the program applies prospectively only; 3) it’s uncertain what will happen to parolees after two years (one can imagine that any future GOP Administration would terminate the program, given that GOP politicos are now suing to halt it); and 4) the is no clear path to a green card for these paroled individuals.

To date, the Administration has not “leveraged” other potential legal mechanisms to expedite employment authorization.

One option would be to greatly expand use of the new regulatory authority for USCIS Asylum Officers to grant asylum status to applicants arriving at the border. This would result in immediate admission in an orderly, work-authorized asylum legal status and avoid the current 2.1 million Immigration Court backlog. It also would trigger a statutory process for asylees to apply for green cards after being physically present in the U.S. for one year. Additionally, granting asylum expeditiously at the AO would be available to all asylum applicants, not just those from the four specified nations.

Another option, that could be used in conjunction with the first one, would be to ramp up much more robust and inclusive refugee programs outside the U.S. This could be in the countries in crisis or in third countries. Like asylees, refugees enter the U.S. in a legal status that authorizes them to work immediately. Like asylees, they have access to a statutory provision for obtaining a green card after being physically present in the U.S. for one year. Refugee status is potentially available to refugees from any country where the President finds a “special humanitarian concern” following “consultation” with Congress.

Unfortunately, in my view, the Biden Administration has shown little interest in, nor aptitude for, maximizing the mechanisms available to legally admit refugees, from abroad or as asylum seekers. As pointed out above, doing so also would address the issues in Maine and other states who have welcomed refugees and asylum seekers. 

Instead, the Administration has relied on a mishmash of:

  1. Trump-era, nativist, deterrence policies, many with questionable legal basis;
  2. A series of ever-changing, ad hoc, subjective, discretionary “exceptions” to those policies administered without any transparency or accountability;
  3. An ad hoc, nationality specific, parole program divorced from the statutory “refugee” definition, having a much more tenuous legal basis than using the established refugee and asylum admission provisions now in the INA, and certainly leaving the future fate of those “paroled” thereunder “up in the air” and subject to maximum political gamesmanship.

The sum total is to leave too many refugees and asylees, and the individuals and communities in the U.S. trying to help them, “dangling in the air” without the necessary support and humanitarian leadership from the Administration.

🇺🇸 Due Process Forever!

PWS

02-05-22

⚖️🗽 RAPPAPORT & STOCK URGE ACTION ON AFGHAN REFUGEES!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill
Margaret Stock, Esquire
Margaret Stock, Esquire
Anchorage, Alaska
PHOTO: Law firm

Nolan sends this summary of his latest on The Hill:

Afghans who helped us deserve better immigration treatment

Nolan Rappaport, opinion contributor

 

 

As the Afghan government and military fell to the Taliban after U.S. troops were withdrawn from Afghanistan, the U.S. hastily evacuated American citizens and 76,000 Afghans who had helped the U.S. in its 20-year war against the Taliban.

 

It is a year later now, and most of the Afghan evacuees still have temporary immigration status, which means that they may be subject to removal when their status expires. This isn’t right.  We should be taking better care of them.

 

It is more than just an obligation to people who put themselves in peril to help the United States.

 

According to Margaret D. Stock, a retired military officer, “Correcting for this inaction is a matter of national security — in future conflicts, why would anyone risk their lives by serving alongside our soldiers or providing critical translation services if the U.S. can’t keep our promises to them when we depart?”

 

It wouldn’t be taking this long to meet the needs of the Afghans if our immigration system weren’t overwhelmed to the point of being dysfunctional.

 

Parole

 

The evacuees who did not have entry documents had to request humanitarian parole, which permits undocumented migrants to be admitted to the United States temporarily for urgent humanitarian or significant public benefit reasons.

 

Approximately 70,192 of them were paroled into the United States between July 30, 2021, and Nov. 15, 2021.

 

Permanent status

 

Congress has enacted a series of legislative provisions which enable certain Afghan nationals to become lawful permanent residents (LPRs) on the basis of a Special Immigrant Visa (SIV).

 

Section 1059 of the National Defense Authorization Act for fiscal 2006, authorizes giving SIVs to Afghans who worked with the U.S. Armed Forces or under Chief of Mission (COM) authority as a translator or an interpreter for at least a year.

 

To be eligible for this special immigrant classification, the principal applicant must obtain a favorable written recommendation from the COM or a general or flag officer in the relevant Armed Forces unit.

 

Afghans who were employed by or on behalf of the U.S. government or the International security Assistance Force in Afghanistan may be eligible for SIV status under section 602(b) of the Afghan Allies Protection Act of 2009.

 

Roadblock

As of July 18, 2022, there were 74,274 principal applicants in the SIV pipeline. This number does not include spouses and children. And the applications have to be processed by USCIS, which is experiencing a backlog crisis.

 

Read more at https://thehill.com/opinion/immigration/3605096-afghans-who-helped-us-deserve-better-immigration-treatment/

 

Published originally on The Hill.

 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him athttps://www.blogger.com/blog/posts/2306123393080132994

 

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

Read Nolan’s full op-ed at the link.

When experts like Nolan and Margaret are saying the same thing, everyone should listen and act accordingly!

In addition to fair and equitable treatment for our allies, we must resume and expand fair and humane treatment for all refugees, including, most important, those seeking legal refuge at our borders. Many of them actually come from broken countries where the the U.S. has left a “large footprint,” like Haiti and Latin America. 

It is long past time to make the legal requirement set forth in the Refugee Act of 1980 — any individual in the US or arriving at our border may apply for asylum “irrespective of status” — a reality rather than a cruel hoax. Contrary to some disgracefully wrong-headed court decisions, this statutory requirement implicitly requires that opportunity to be in full compliance with due process. 

Otherwise, to state the obvious, it’s no opportunity at all — just a legal charade. Unfortunately, that is what much of our broken, dysfunctional, and unjust asylum and refugee systems look like now!

🇺🇸 Due Process Forever!

PWS

08-19-22

😢SUPREMES SLAM DUNK ON ADJUSTMENT APPLICANTS WITH “NO JURISDICTION” RULING, OVER SPIRITED DISSENT FROM JUSTICE GORSUCH! — Patel v. Garland (5-4)

Associate Justice Neil Gorsuch
Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.

https://www.supremecourt.gov/opinions/21pdf/20-979_h3ci.pdf

Held: Federal courts lack jurisdiction to review facts found as part of dis- cretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i). Pp. 6–17.

From Justice Gorsuch’s dissent (joined by Justices Breyer, Kagan, & Sotomayor):

The majority concludes that courts are powerless to cor- rect an agency decision holding an individual ineligible for relief from removal based on a factual error, no matter how egregious the error might be. The majority’s interpretation has the further consequence of denying any chance to cor- rect agency errors in processing green-card applications outside the removal context. Even the government cannot bring itself to endorse the majority’s arresting conclusions. For good reason. Those conclusions are at war with all the evidence before us. They read language out of the statute and collapse the law’s clear two-step framework. They dis- regard the lessons of neighboring provisions and even ig- nore the statute’s very title. They make no sense of the statute’s history. Altogether, the majority’s novel expan- sion of a narrow statutory exception winds up swallowing the law’s general rule guaranteeing individuals the chance to seek judicial review to correct obvious bureaucratic mis- steps. It is a conclusion that turns an agency once account- able to the rule of law into an authority unto itself. Perhaps some would welcome a world like that. But it is hardly the world Congress ordained.

***********************
Justice Barrett wrote the majority opinion.

Interestingly, neither the Respondent nor the Solicitor General defended the 11th Circuit’s decision. So, the Court appointed Taylor A.R. Meehan as amicus to defend that decision. Her “no jurisdiction” statutory argument prevailed.

Looking at rulings like this, the makeup of the Supremes, and the bleak prospects for Article I in an ideologically divided Congress, the composition of the Immigration Courts and the BIA becomes even more significant.

As Justice Gorsuch points out, in many important cases, even the most obvious and egregious mistakes from EOIR Judges will go uncorrected by the Article IIIs. So, getting the results right in the first place and having higher quality appellate review at the BIA becomes even more “life determining.”

As judicial vacancies arise, it’s critical that NDPA members who are eligible to apply do so in large numbers! That also goes for the U.S. Magistrate Judges and the Article IIIs!

🇺🇸Due Process Forever!

PWS

05-16-22

⚖️ARLINGTON PRACTITIONER JULIE SOININEN REPORTS ON TPS/ADJUSTMENT SETTLEMENT WITH USCIS — Still Cleaning Up The Toxic ☠️ Legacy Of “Cooch Cooch The Illegal!”

Julie Soininen ESQ
Julie Soininen Esq.
Attorney
Montagut & Sobral PC
Falls Church, VA
PHOTO: M&S PC

Dear Judge Schmidt:

I hope that you are doing well and enjoying March Madness.  Check out this settlement that we just negotiated! (I have been working on this for the past 2 years!)

Michelle Mendez, Rebecca Scholtz and Bradley Jenkins from CLINIC, (now with the National Lawyers Guild) were HUGE forces in this case…… Michelle is the one who got the ball rolling when I contacted her about what was going on.  6 of our clients were the named Plaintiffs, but we never could have handled this case on our own.

I am also attaching a recent article that I did which explains the whole (mess of a) back story……

Take care!

USCIS Agrees to Restore Path to Permanent Residency for TPS Beneficiaries

CARECEN, Mar. 22, 2022

“U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli—an illegally appointed Trump official. Because of today’s agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents—eliminating the threat of deportation if their TPS protections are revoked in the future.

The agreement is the result of a new settlement in CARECEN v. Cuccinelli, a lawsuit filed by Democracy Forwardthe Catholic Legal Immigration Network, Inc. (CLINIC)Montagut & Sobral, PC, and Debevoise & Plimpton, LLP in August 2020. Seven Temporary Protected Status (TPS) beneficiaries and the Central American Resource Center (CARECEN) sued the Trump administration for unlawfully denying tens of thousands of TPS beneficiaries the opportunity to take steps to adjust their immigration status and become permanent residents. In the lawsuit, the seven current TPS holders shared their stories. Now, each one now has the opportunity to obtain permanent residence.

The December 2019 policy change, disguised as a mere clarification, was one of the Trump administration’s many efforts to eliminate TPS protections for tens of thousands of beneficiaries. The groups’ lawsuit alleged the change violated the Administrative Procedure Act and the Immigration and Nationality Act; was motivated by the Trump administration’s racial and anti-immigrant bias; and was unlawfully authorized by Ken Cuccinelli, whose appointment was deemed illegal by a federal court in March 2020 in response to a separate lawsuit brought by Democracy Forward, CLINIC, RAICES, and Debevoise & Plimpton LLP.

“Today’s agreement will allow TPS beneficiaries—many of whom have lived in the U.S. for decades and built deep roots in their communities—to once again seek permanent residency and extinguish the threat of deportation if their TPS protections are revoked,” said Democracy Forward Senior Counsel John Lewis. “The Trump administration’s policy illegally sought to destabilize the lives of tens of thousands with TPS protections. We’re proud to have helped restore protections that ensure our neighbors have a path to pursue permanent residency.”

“This victory will change the lives of those individuals impacted,” stated Abel Nuñez, Executive Director of CARECEN. “As an organization, we are proud of our continued efforts to defend our community as they integrate into their new home in the U.S. CARECEN will work with those TPS members that qualify under the settlement and also keep fighting to ensure that all TPS beneficiaries who have been in the U.S. for over 20 years and have complied with everything that has been asked of them are able to apply for legal permanent residence.”

“As an organization grounded in Catholic social teaching, we celebrate today’s settlement that will prevent family separation and provide pathways to citizenship for thousands of TPS beneficiaries,” said Anna Gallagher, Executive Director of the Catholic Legal Immigration Network, Inc., or CLINIC. “Our faith tradition teaches us that we are to stand for justice and against any barrier to human flourishing. This agreement eliminates the barrier of an unlawful policy created by an illegally-appointed official. We are proud to have stood among those who fought against this policy, and we celebrate alongside our immigrant brothers and sisters whose lives will now be profoundly changed.”

Concepción de Montagut and Germaine Sobral from Montagut & Sobral P.C., who brought forward their client’s cases affected by the policy, said:  “When we saw the negative impact the policy change had on the long-awaited permanent residence applications of our clients, we knew we had to fight the policy. We are proud to have been part of a team that has fought for this change that will now allow not only our six named clients, but also thousands of TPS beneficiaries to reopen and dismiss their deportation cases and proceed with their permanent residence applications so they can remain in the US with their families and turn their dreams into reality.”

Learn more about the lawsuit here.

###

AILAarticle-TPSBeneficiaries-Removal

 

http://www.montagutandsobrallaw.com/

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

Thanks Julie! Just another example of how the NDPA goes around cleaning up the messes created by the Government immigration bureaucracy!

The attack on TPS Adjustment was one of the stupidest moves of the Trump regime. The folks they “targeted” were all long term residents, many employed, paying taxes, and making substantial contributions to our economy, and all met the requirements for lawful permanent residence. 

Rather than following the law and helping these deserving individuals to “get out of limbo,” the Trump regime wasted taxpayer money, violated the law, and attempted to undermine our economy by “targeting” them for race-based discriminatory treatment.

Fortunately, members of the NDPA like Julie and the team she mentions were there to thwart the illegal actions of “Cooch.”

🇺🇸Due Process Forever!

PWS

03-28-22

 

👩🏻‍⚖️ “TEMPORARY” APPELLATE JUDGE BETH LIEBMANN GETS IT RIGHT,😎 BUT GARLAND’S HOLDOVER BIA MAJORITY “STEAMROLLS” STATUTE TO BAR ASYLEE ADJUSTMENT AT DHS’S REQUEST! ☹️ — Matter of T-C-A-, 28 I&N Dec. 472 (BIA 2022)

 

https://www.justice.gov/eoir/page/file/1476746/download

Matter of T-C-A-, 28 I&N Dec. 472 (BIA 2022)

BIA HEADNOTE:

An applicant for adjustment of status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2018), must possess asylee status at the time of adjustment, and thus an applicant whose asylee status has been terminated cannot adjust to lawful permanent resident status under this provision.

PANEL:

WILSON and GOODWIN, Appellate Immigration Judges. Concurring and Dissenting Opinion: LIEBMANN, Temporary Appellate Immigration Judge.

OPINION BY: Judge Goodwin

CONCURRING & DISSENTING:  Judge Liebmann

KEY QUOTE FROM JUDGE LIEBMANN’S SEPARATE OPINION:

Based on the unambiguous and controlling language “any alien granted asylum” in section 209(b) of the Act, I would hold that an asylee who has not previously adjusted to lawful permanent resident status pursuant to section 209(b) may apply for adjustment of status under that section even after termination of asylee status, provided that the noncitizen continues to be a refugee or the spouse or child of a refugee. A review of the overall context of section 209(b) of the Act, the governing regulations, and relevant case law supports this reading of the statute. I would therefore remand to permit the respondent to apply for adjustment of status pursuant to section 209(b). [Citation Omitted]

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

Nice to see some common sense “scholarly pushback” to the Garland “Holdover” BIA’s ridiculously pro-DHS-tilted precedents. While Garland apparently isn’t paying any attention to what’s being done in his name, hopefully the Appellate Courts will pick up on Judge Liebmann’s cogent analysis.

🇺🇸 Due Process Forever!

PWS

02-26-22

😎👍🏼⚖️🗽 MORE FREE NDPA TRAINING FROM THE EXPERTS: 6 Months After the Fall of Aghanistan: Free Webinar Mar. 9 1-2 pm ET!

Professor Stephen Yale-Loehr
Professor Stephen Yale-Loehr
Cornell Law

Cornell Law School and the Cornell Migrations Initiative, along with other organizations, are hosting a free public webinar on Wednesday March 9 from 1-2 pm ET entitled “After the Fall: The Future of Afghan Allies Fleeing the Taliban.”

Six months after the fall of Afghanistan, a lot has been done, but a lot remains to be done.The United States evacuated over 100,000 Afghans to the United States or third countries.Yet an estimated 200,000 Afghans who helped the U.S. military or government remain in Afghanistan, fearing persecution and famine.Moreover, those who have made it to the United States have mostly entered on humanitarian parole, which is a temporary status that expires after two years.They need ways to remain in the United States permanently.

Learn what Cornell University and other organizations have done to assist Afghans at risk, what remains to be done, and how you can help.

Speakers include Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. Cornell law professor Stephen Yale-Loehr, who directs an Afghanistan asylum clinic at Cornell Law School, will moderate.

To register for the free webinar, go to https://ecornell.cornell.edu/keynotes/overview/K030922a/

Stephen Yale-Loehr

Professor of Immigration Law Practice, Cornell Law School

Faculty Director, Immigration Law and Policy Program

Faculty Fellow, Migrations Initiative

Co-director, Asylum Appeals Clinic

Co-Author, Immigration Law & Procedure Treatise

Of Counsel, Miller Mayer

Phone: 607-379-9707

e-mail: SWY1@cornell.edu

Twitter: @syaleloehr

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

Thanks so much Steve for passing this along! An all-star lineup to be sure! 🌟🌟🌟 Don’t miss it! Required registration available at the above link.

🇺🇸Due Process Forever!

PWS

02-24-22

🏴‍☠️🤮👎🏽⚰️🤯 SCOFFLAW BIA BREAKS RULES, VIOLATES OWN PRECEDENTS, HEMORRHAGES FUNDAMENTAL UNFAIRNESS IN HELPING DHS, 7TH CIR. FINDS IN LATEST REBUKE OF GARLAND’S STAR CHAMBERS — “Culture Of Denial,” Anti-Immigrant Bias Continue Unabated @ Garland’s EOIR!

Star Chamber Justice
At ICE, there’s no need to bother presenting evidence, arguments, or making a record below because we know we can “rack up” victories before our stooges at Garland’s BIA!

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca7-slaps-the-bia-again-osmani-v-garland

CA7 Slaps the BIA Again: Osmani v. Garland

Osmani v. Garland

“In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Osmani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals (“BIA”) reversed the IJ’s ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discretion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. … Accordingly, we GRANT the petition for review; VACATE the Board’s decision in this case; and REMAND to the BIA for further proceedings consistent with this opinion.”

[Hats way off to pro bono publico counsel Illyana A. Green, Chuck Roth and Matthew E. Price!  Query: ICE removed Osmani in 2021…will they bring him back?  Listen to the oral argument here.]

pastedGraphic.png pastedGraphic_1.png pastedGraphic_2.png

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

The outrageous errors, pro-DHS bias, gross incompetence, and lack of judicial qualifications reflected by this BIA decision is absolutely stunning, as is the Biden Administration’s:

  • Deportation of the respondent while this court challenge to this error-fest was pending (the respondent was removed based on this illegal order in April 2021, well after the Biden Administration took office and a month after Garland was sworn in as Attorney General);
  • The DOJ’s prima facie unethical defense of the BIA’s denial of due process, failure to follow precedent, clear abuse of discretion, and legally indefensible actions here;
  • Continuing abuse of scarce pro bono resources and Article III judicial time by not bringing in fair, expert, new, due–process-dedicated BIA judges who would get these right in the first place, set proper precedents, and follow them (rather than avoiding them when they spell victory for the individual);
  • Also, who at DHS authorized an improper appeal on this record? (Obviously, DHS recognized that given the BIA’s pro-DHS bias, they could “mail it in” before the IJ, take a frivolous appeal, and  STILL HAVE THE BIA HAND THEM A TOTALLY UNDESERVED VICTORY!)

Folks, this is a Democratic Administration enabling this pattern of biased, unprofessional, and illegal conduct against immigrants which should bring a smile to Stephen Miller’s face! It’s also unfair and demoralizing to Immigration Judges who take the time to get it right and grant relief only to be arbitrarily and illegally reversed by Garland’s unqualified BIA on appeal!

Garland should have replaced leadership at EOIR and OIL, and also replaced the BIA, on “day one.” Instead, more than a year into a supposedly due-process-oriented Administration, the garbage continues to flow into the Article IIIs from Garland’s EOIR unabated, while the indefensible continues to be defended by OIL, like it’s “business as usual.” This happens because Garland’s message is that “Dred Scottification” of “the other” will be tolerated, defended, and protected at his DOJ.

Why is Garland being allowed to get away with running this system into the ground, ignoring due process, “blowing off” judicial and legal ethics, treating migrants unfairly, and building the unnecessary backlog at record levels?

🇺🇸Due Process Forever! 

PWS

01-25-22

BIA REMINDS IJs THAT THEY CAN RE-ADJUDICATE BONA FIDES OF MARRIAGE N/W/S APPROVED I-130 IN ADJUSTMENT CASE — Matter of Kagumbas, 28 I&N Dec. 400 (BIA 2021)

 

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTEwMTMuNDcyOTIyNTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xNDQxMzY2L2Rvd25sb2FkIn0.-EyjMTHsjPdwrMlXLDcXD-GhHqRLLd3tG98HlTvi_Uo/s/842922301/br/113820816013-l

BIA HEADNOTE:

An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018).

PANEL: MULLANE, COUCH, and OWEN, Appellate Immigration Judges

OPINION: Judge Hugh Mullane

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

If IJs are going to go behind an approved I-130, why not just allow respondents to choose to file the I-130 and the I-1485, Application for Adjustment of Status, simultaneously in Immigration Court (like at USCIS) and have the IJ adjudicate the visa petition along with the application?

In this case, the IJ and ACC did offer the respondent a chance to apply for adjustment before USCIS. Perhaps, he should have taken it.

🇺🇸Due Process Forever,

PWS

10-14-21

🆘ABOVE THEIR PAY GRADE:  VOLUNTARY DEPARTURE & ADJUSTMENT OF STATUS AREN’T “ROCKET SCIENCE” 🚀 — But, Garland BIA’s Failure To Master The Basics Draws Two More Stinging Rebukes From Circuits!

EYORE
Sloppy decision-making and institutional bias in favor of DHS Enforcement remain endemic problems at EOIR that Garland has failed to address. “Eyore” isn’t the only one suffering from this failure to bring progressive reforms to “America’s worst and deadliest courts!”  “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

9th Circuit on VD: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/25/19-72893.pdf

“But here there was no indication that the IJ implicitly considered any favorable factors in making its voluntary departure determination.”

1st Circuit on adjustment of status: https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-el-salvador-gang-membership-jurisdiction-hardship-evidence-perez-trujillo-v-garland

“. [T]he government is right that we have no jurisdiction to re-weigh the evidence of hardship. But, a reweighing could only occur if there had been a weighing of that evidence in the first place. And, here, we conclude that there was no weighing of that evidence at all. We thus reject the government’s argument that the BIA, in overturning the immigration judge’s ruling granting Perez-Trujillo adjustment of status, did consider hardship as he contends that it was required to do under Matter of Arai.”

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

Notice a theme here: No need to actually consider the evidence, just deny, particularly when that’s the result demanded by the “partners” over at DHS enforcement? What kind of “court” operates in this manner? Where is the “fair and impartial adjudication” required by Due Process and Matthews v. Eldridge?

Clearly, these are signs of “denial-oriented assembly line decision-making by the BIA.” And, how does Garland explain OIL’s “defense” of weighing and considering factors that NEVER OCCURRED — essentially fabricated? Sounds like intentionally misleading courts to me! THIS is our Department of “Justice” under Garland?

Bias, poor judging, a culture of denial, and political interference with docket management are endemic problems at Garland’s BIA! That’s a prime reason why under DOJ’s “maliciously incompetent” administration and weaponization EOIR has built a still out of control 1.3 million case plus backlog! 

Easy cases become endless exercises, as EOIR and OIL waste the time of the Circuits trying to “paper over” shoddy and biased decision-making on the “deportation assembly line.”  Cases that should have been favorably resolved years ago instead keep bouncing around the system on “Circuit remands.” 

Some then become the victims of “Aimless Docket Reshuffling” by DOJ politicos and their EOIR toadies and never get resolved at all! All these problems are magnified by two-decades of grossly incompetent DOJ/EOIR “management” that has elevated political agendas and bureaucratic nonsense over implementing a functioning e-filing system like every other comparable “court” in America! Due Process and customer service continue to come last at Garland’s EOIR!

DON’T let Garland and Mayorkas claim that the “solution” is more improperly “expedited” special dockets and less due process. NO, NO, NO! The solution is better judges (now, not later), granting more deserving cases rather than “looking for reasons to deny,” better judicial training, positive precedents from a new expert BIA, and an end to bogus “quotas,” stupid and unethical “performance work plans,” and political interference with docket management by DOJ and EOIR HQ!

Without aggressive progressive interventions and a massive infusion of new progressive expert personnel into EOIR, the Immigration Courts will continue to flounder and fail under Garland. Then, in the finest DOJ tradition, looking for a way to cover himself, he and his team will attempt to shift the blame to their victims  — hapless, abused respondents and their long-suffering lawyers! Don’t let them get away with it!

Garland’s failure to institute “no brainer” progressive reforms @ EOIR and to replace bad judges is life-threatening and an incredible drag on our entire legal system! Tell him you have had enough! Demand better! Let your voices be heard in protest every day until we get the long overdue, readily achievable, EOIR reforms progressives have worked for and were promised!

🇺🇸Due Process Forever!

PWS

06-29-21

😢BIG TPS DEFEAT: UNANIMOUS SUPREMES AGREE WITH BIDEN ADMINISTRATION,  DENY TPS HOLDERS ELIGIBLE FOR PERMANENT IMMIGRATION OPPORTUNITY TO ADJUST STATUS  — That’s Exactly The Result Congress Wanted, Says  Justice Kagan, Writing For Court! — Sanchez v., Mayorkas

 

https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf

SYLLABUS BY COURT STAFF:

Syllabus

SANCHEZ ET UX. v. MAYORKAS, SECRETARY OF HOMELAND SECURITY, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 20–315. Argued April 19, 2021—Decided June 7, 2021

Petitioner Jose Santos Sanchez is a citizen of El Salvador who challenges the denial of his application to become a lawful permanent resident (LPR) of the United States. Sanchez entered the United States unlaw- fully in 1997. In 2001, the Government granted him Temporary Pro- tected Status (TPS). The TPS program allows foreign nationals of a country designated by the Government as having unusually bad or dangerous conditions to live and work in the United States while the conditions last. See §1254a. In 2014, Sanchez applied under §1255 of the immigration laws to obtain LPR status. Section 1255 provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a temporary basis—to obtain an “[a]djustment of status” to LPR. 8 U. S. C. §1255. The United States Citizenship and Immigra- tion Services determined Sanchez ineligible for LPR status because he entered the United States unlawfully. Sanchez successfully chal- lenged that decision before the District Court, which reasoned that Sanchez’s TPS required treating him as if he had been lawfully admit- ted to the country for purposes of his LPR application. The Third Cir- cuit reversed, finding Sanchez’s unlawful entry into the country pre- cluded his eligibility for LPR status under §1255, notwithstanding his TPS.

Held: A TPS recipient who entered the United States unlawfully is not eligible under §1255 for LPR status merely by dint of his TPS. Section 1255 provides that eligibility for LPR status generally requires an “ad- mission” into the country— defined to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). Sanchez did not enter lawfully.

2

SANCHEZ v. MAYORKAS Syllabus

And his TPS does not eliminate the effect of that unlawful entry. Sec- tion 1254a(f)(4) provides that a TPS recipient who applies for perma- nent residency will be treated as having nonimmigrant status—the status traditionally and generally needed to invoke the LPR process under §1255. But that provision does not aid the TPS recipient in meeting §1255’s separate admission requirement. Lawful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter. Sanchez resists this conclu- sion, arguing that the statute’s directive that a TPS recipient “shall be considered . . . as a nonimmigrant” for purposes of §1255 means he must also be considered as admitted. But the immigration laws no- where state that admission is a prerequisite of nonimmigrant status. So there is no reason to interpret the TPS provision’s conferral of nonimmigrant status as including a conferral of admission. In fact, contrary to Sanchez’s position, there are immigration categories in which individuals have nonimmigrant status without admission. See, e.g., §§1101(a)(10), 1101(a)(15)(U), 1182(d)(14). Thus, when Congress confers nonimmigrant status for purposes of §1255, but says nothing about admission, the Court has no basis for ruling an unlawful entrant eligible to become an LPR. Pp. 4–9.

967 F. 3d 242, affirmed.

KAGAN, J., delivered the opinion for a unanimous Court.

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

So TPSers who are long time residents and meet the requirements for a green card will continue to twist in the wind. I wouldn’t hold my breath for Congress to help them out. Many of us believed there were better interpretations available that would  have produced a more sensible and humane result. But, we were wrong!

I guess the opportunity to rule against migrants is uniting an otherwise often divided Court!

PWS

06-07-21

⚖️🗽I SPEAK OUT ON BIDEN ADMINISTRATION’S STUPID POSITION BEFORE THE SUPREMES IN SANCHEZ V. MAYORKAS! — John Fritze reports for USA Today

John Fritze
John Fritze
Supreme Court Reporter
USA Today
PHOTO: Muckrack.com

https://www.usatoday.com/story/news/politics/2021/04/16/supreme-court-debate-tps-immigration-case-biden-confronts-border/7110295002/

WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.

But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.

The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.

. . . .

“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.

. . . .

“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”

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

Read John’s complete article at the above link.

Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. See Matter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).

Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.

Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!

Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd. 

So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!

For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:

https://immigrationcourtside.com/2021/03/14/%E2%9A%96%EF%B8%8F%F0%9F%97%BDprofessor-david-a-martin-explains-how-biden-administration-could-advance-its-immigration-agenda-by-abandoning-their-wrong-headed-position-before-the-supremes/

I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.

All this being said, the Supremes still might preserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:  follow the law! See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).

So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!

🇺🇸⚖️🗽Due Process Forever!

PWS

04-16-21

⚖️🗽PROFESSOR DAVID A. MARTIN EXPLAINS HOW BIDEN ADMINISTRATION COULD ADVANCE ITS IMMIGRATION AGENDA BY ABANDONING THEIR WRONG-HEADED  POSITION BEFORE THE SUPREMES! — Don’t Let Sanchez v Mayorkas Become a Lost Opportunity!

David Martin
Professor (Emeritus) David A. Martin
UVA Law
PHOTO: UVA Law

https://www.justsecurity.org/75295/removing-barriers-to-family-unity-for-holders-of-temporary-protected-status-an-opportunity-for-biden-administration/

David writes in Just Security:

Currently before the Supreme Court is a little-noticed immigration case with profound significance. Sanchez v. Mayorkas offers the Biden administration an opportunity to make major progress, without waiting for legislative action, on one of its central humanitarian goals – providing durable status to long-resident noncitizens.

A straightforward change in the government’s policy and its litigation stance could help remove a barrier blocking critical relief to several tens of thousands of noncitizens who have resided in the United States with official government permission under Temporary Protected Status (TPS). Because of a longstanding but misguided agency reading of the Immigration and Nationality Act (INA), these noncitizens are stuck in limbo and practically unable to get the permanent resident status for which they are independently eligible based on family or employment relationships. Those most affected are TPS recipients married to U.S. citizens. The case turns on a highly technical question of statutory interpretation over which six courts of appeals have so far split evenly, but the human stakes are substantial, and a change of position by the administration would have significant impact.

The plaintiff TPS holders in Sanchez may well win the case based on the plain language of the relevant statutes, as ably argued in their brief and by supporting amici. But until now, the government has argued, to the contrary, that the language of the statute compels the agency’s current restrictive interpretation. This essay contends that the administration could provide crucial support for the TPS holders under a different legal framework that, for understandable reasons, neither side has given much emphasis.

The alternative approach is for the administration to acknowledge – in light of the statutory text, the deep and abiding circuit split, and a surprising November ruling by the Justice Department’s own Board of Immigration Appeals (BIA) – that the statutory language is ambiguous. On that foundation, the government has the discretion to adopt a new (and better) interpretation that would permit eligible TPS recipients to make use of adjustment of status to obtain a green card.

In 2019, the Trump administration entrenched the restrictive interpretation through an obscure process rather clearly invoked to complicate a later policy change. The Biden administration should nonetheless undertake immediate reconsideration of the government’s position and seek to defer the pending Supreme Court briefing schedule to allow that agency process to proceed. A more refined position by the new administration would promote family unity and avoid compelling spouses of U.S. citizens to return to the very country from which they have escaped in order to seek the immigrant visa for which they already qualify.

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Read the rest of David’s article, explaining his suggestions, at the link.

This issue came up before me at the Arlington Immigration Court. After holding “oral argument,” I simply followed the statutory language and granted adjustment of status to the TPS holder. 

In that case, following the literal statutory language produced the most reasonable policy result. As I pointed out to DHS counsel, the mis-interpretation they were pushing would not only violate the statutory language, but also result in a long-time TPS resident with work authorization who was paying taxes and supporting an American family being deprived of the legal immigration status to which he was entitled.

The result desired by DHS would have been highly nonsensical. Why make individuals who fit the legal immigration system established by Congress, and who actually have been contributing to our nation and our economy for many years, remain in limbo? In many cases, lack of a green card limits the both the earning and career potential of such individuals, plus adding unnecessary stress and uncertainty to the situation of their U.S. citizen family members. 

The DHS reserved an appeal. I don’t believe it was ever pursued, however. And, of course, as a mere Immigration Judge (even before the position was “dumbed down” by the Trump DOJ) my decision only affected that particular case. It wasn’t a precedent.  

But, it does illustrate my oft-made point that having “practical scholars” in immigration and human rights as Immigration Judges, BIA Judges, Article III Judges, and policy officials would be a huge positive change, making our immigration system fairer, more efficient, and more responsive to our national needs, even without major legislative changes. Also, these adjustments could be handled at USCIS, promoting uniformity while eliminating unnecessary litigation from the bloated Immigration Court docket.

Certainly, both the Solicitor General’s Office and the Office of Immigration Litigation (“OIL”) urgently need new leadership with practical experience in immigration and human rights policies and litigation. It’s definitely out here in the private/NGO/academic sectors. The only question is whether Judge Garland and his team will go out and get the right talent in the key jobs. 

Even today, as I often point out, defending “boneheaded” anti-immigrant positions, horrible mis-interpretations, and stupid policies before Federal Courts, often with false or misleading narratives about the practical effects, is a huge drain on our justice system and is wasting the time of the Government, Federal Courts, and the private bar, as well as often producing counterproductive or inconsistent results. https://immigrationcourtside.com/2021/03/12/%e2%9a%96%ef%b8%8f%f0%9f%97%bdjennifer-doherty-law360-analyzes-judge-illstons-massive-takedown-of-eoirs-anti-due-process-regulations-i-speak-out-on-why-judge-garlan/

Talk about taking a potential win-win-win-win and converting it to a lose-lose-lose-lose! But, the latter was a “specialty” of the Trump regime and their DOJ.

As David astutely points out, cases such as Sanchez v Mayorkas might appear “hyper-technical” to some; but, to those who truly understand our current broken immigraton system, they have huge implications. We need the expertise of the “practical scholars” of the NDPA throughout our governing structure — starting, but not ending, with a complete “housecleaning” at the disgracefully dysfunctional EOIR. 

The only question is whether Judge Garland, Secretary Mayorkas, and the others in charge of the Government’s immigraton bureaucracy will (finally, at long last) bring in the right talent to solve their problems!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-14-21