Category: Executive Office for Immigration Review (“EOIR’)

THE GIBSON REPORT — 10-24-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — Human Rights Advocates, Immigrants, Abandoned By Biden Administration! — Garland’s “Unforced Errors” @ EOIR Haunt Dems!  — Where Do Operating “America’s Worst Courts” & “Dissing Equal Justice” Fit Into Dem’s Vision Of Democracy?🤯

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

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Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

FEATURED EVENT

 

2022 Convening on Advancing Universal Representation on 10/27

This gathering will bring together existing universal representation projects as well as groups considering starting/supporting new programs to reflect on best practices, adapting models while seeking to end detention, and ways to expand universal representation. The deadline to register for virtual attendance is tomorrow, October 25, 2022.

 

NEWS

 

US border encounters top 2 million in fiscal year 2022

CNN: There were 227,547 migrant encounters along the US-Mexico border in September, up 12 percent from the previous month. The sharp increase in migrants from Venezuela, Cuba, and Nicaragua contributed to the uptick.

 

Illegal Border Crossings by Venezuelans Plunge in the Face of New Policies

NYT: The number of Venezuelans entering the United States illegally dropped from about 1,200 a day to 150 in the first days after the Biden administration rolled out the new policies.

 

U.S. grants Temporary Protected Status to Ethiopians fleeing conflict

Reuters: The Ethiopian military and allies including troops from neighboring Eritrea have been battling forces from the northern region of Tigray on and off for two years. The conflict has killed thousands, displaced millions and left hundreds of thousands on the brink of famine.

 

Coast Guard returns more than 300 migrants to Cuba over weekend

The Hill: The Coast Guard stopped 185 Cubans on Friday, 94 on Saturday and 40 on Sunday. In total, the service says it has intercepted 921 Cubans since Oct. 1.

 

US Border Patrol sending migrants to offices with no notice

AP: Molina was among 13 migrants who recently arrived in the U.S. who agreed to share documents with The Associated Press that they received when they were released from U.S. custody while they seek asylum after crossing the border with Mexico. The AP found that most had no idea where they were going — nor did the people at the addresses listed on their paperwork.

 

‘Hail Mary after Hail Mary’: Biden administration struggles with border policy, fueling frustration

CNN: It has been an endless cycle since President Joe Biden took office, according to multiple administration officials and sources close to the White House. Agency officials dream up a plan but then struggle to get White House approval, even as the problem compounds and Republicans step up their criticism. See also Immigrant advocates feel abandoned as they stare at Biden’s first-term checklist.

 

Nearly 500,000 Immigrants Go Through ICE’s Alternatives to Detention System in Two Years

TRAC: According to new data obtained by TRAC through Freedom of Information Act (FOIA) requests, 480,301 people have been enrolled in ICE’s electronic monitoring program known as Alternatives to Detention (ATD) between August 2020 and June 2022. Many of these individuals, about 196,000, were previously active in ATD but have since ceased to be monitored under ATD, while 284,000 immigrants were still in ATD as of the end of June.

 

Over 63,000 DHS Cases Thrown Out of Immigration Court This Year Because No NTA Was Filed

TRAC:  As of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because Department of Homeland Security officials, chiefly Border Patrol agents, are not filing the actual “Notice to Appear” (NTA) with the Immigration Court. Without a filed NTA, the Court has no jurisdiction to hear the case.

 

Arrests for unlicensed driving plunge in New York following unauthorized immigrant license law like Mass.’s

GBH: Police in New York arrested about 57,000 unlicensed drivers a year before state lawmakers narrowly approved the Green Light Law in 2019, making most immigrants eligible for licenses regardless of their legal status. In 2021, those arrests declined to about 30,000 and are on a similar pace for this year, according to records obtained by GBH News from the New York State Unified Court System.

 

An Overwhelmed Immigration System Is Facing A Shortage Of Attorneys Amid A Growing Backlog Of Cases

Block Club: As a major city that attracts immigrants, Chicago specifically has been struggling to support the recent influx of asylum seekers. After dealing with cuts under the Trump administration and then the COVID-19 pandemic, immigrant serving organizations’ resources were already strained before the war in Ukraine and the U.S. withdrawal from Afghanistan and subsequent Taliban takeover sent thousands of refugees and asylum seekers to Chicago. The recent arrival of migrants from Texas has only added to the strain on organizations’ resources, including legal services and representation.

 

LITIGATION & AGENCY UPDATES

 

CA1 on Honduras, MS-13, CAT: H.H. v. Garland

LexisNexis: He argues that the immigration judge (“IJ”) applied the incorrect legal standard in assessing whether he would more likely than not be tortured with the “consent or acquiescence” of the Honduran government, and that the BIA erred in its review of the IJ’s decision. He also argues that the BIA failed to consider whether the Honduran government would likely torture him and whether the MS-13 gang is a de facto government actor. We agree that the agency erred in these respects, and we therefore grant his petition for review, vacate the order of the BIA to the extent it denied him CAT relief as to Honduras, and remand for further proceedings consistent with this opinion.

 

CA1 on El Salvador, CAT, MS-13: Chavez v. Garland

CA1: We  thus  remand  for  the  BIA  to  consider  in  the  first instance  whether  Chavez’s  proposed  social  group  satisfies  the requirements for constituting a particular social group under the INA to which he belongs.  We express no opinion as to the merits of that issue other than to emphasize that the BIA cannot reject such a group based solely on its determination that current or former gang members cannot form a particular social group.

 

Unpub. CA3 CIMT Victory: King v. Atty. Gen.

LexisNexis: The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT.

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

LexisNexis: We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.

 

Texas Drops Challenge To Biden’s Title 42 Child Migrant Policy

Law360: The state of Texas on Wednesday agreed to drop its challenge to a provision of the pandemic-era Title 42 policy which exempted unaccompanied minor migrants from being expelled from the U.S. during the COVID-19 pandemic.

 

Ill. Professor, Students Can’t Halt Chinese Student Visa Ban

Law360: An Illinois university professor and students can’t stop the Biden administration from enforcing a Trump-era policy barring student visas to Chinese nationals who are connected to any entity in China that supports its “military-civil fusion strategy,” a federal judge has ruled, denying the plaintiffs’ bid for a temporary restraining order.

 

Soldiers Forgo $10M Citizenship Dispute Fee For $2.75M

Law360: A class of foreign-born military recruits who sought $10 million in attorney fees after winning back their expedited path to naturalization two years ago have settled for $2.75 million in the interest of conserving resources and avoiding further litigation risks.

 

Legal Organizations Sue ICE for Illegally Preventing Attorneys from Communicating with Detained Immigrants in Four States

AIC: Several legal services organizations filed a lawsuit today against Immigration and Customs Enforcement (ICE) for unlawfully preventing attorneys from communicating with immigrants detained in four detention facilities in Florida, Louisiana, Texas, and Arizona.

 

USCIS Implements New Process for Venezuelans

USCIS: On Oct. 12, the Department of Homeland Security (DHS) announced a new process for Venezuelans.

 

DHS Designates Ethiopia for Temporary Protected Status for 18 Months

USCIS: Only individuals who are already residing in the United States as of October 20, 2022 will be eligible for TPS.

 

USCIS Extends COVID-19-related Flexibilities

USCIS: U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Jan. 24, 2023, to assist applicants, petitioners, and requestors.

 

RESOURCES

 

 

EVENTS

 

 

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Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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From Politico:

. . . .

But immigrant advocates note that some of their demands aren’t contingent on Congress or the courts, which makes it all the more exasperating as to why the administration has failed to deliver.

Some told POLITICO they simply wanted to see the administration remedy the harm caused by the Trump administration’s family separation policies. Others want to see follow-up on early proposals to protect immigrant workers in labor disputes.

The administration further angered the community last week when it announced plans to use the Trump-era pandemic policy, Title 42, to expel Venezuelan migrants crossing the border illegally as part of its new humanitarian parole program for them. Advocates decried the expansion of Title 42, which the Justice Department is fighting in court, as a continuation of the Trump “playbook.”

. . . .

The biggest, most significant “unforced error” by the Biden Administration has been the failure to “clean house” at EOIR and to reform the Immigration Courts to be a model of great, scholarly, humane judging, and a bastion of due process, fundamental fairness, and best judicial practices. 

The Federalist Society and the Heritage Foundation set forth a successful “blueprint” for a far-right takeover of not only the Immigration Courts, but the entire Article III Judiciary. The Trump Administration adopted and successfully followed it!

By stark contrast, the Dems have failed to act timely and decisively on the one all-important Federal court system that they completely control! EOIR is a system that probably has more impact on the future of America — or whether there will even be a future America — than any court short of the Supremes!

Garland’s dismissive treatment of the informed views of immigration, human rights, and racial justice experts — who have had “hands on” experience with “America’s most dysfunctional courts” (the Immigration Courts) — has undermined our legal system and hamstrung almost every other progressive social justice initiative — from voting rights to abortion! 

Garland’s failure to bring in experienced, dynamic, inspirational, respected, “Tier One” progressive practical scholar/leaders — folks like, for example, Dean Kevin Johnson, Professor Karen Musalo, Marielena Hincapie, Professor Phil Schrag, Margaret Stock, Professor Michele Pistone, and Judge Dana Leigh Marks — to clean up EOIR, kick some tail, and create “the best, fairest, most efficient courts in America” — is beyond inexcusable!

Dems are a self-inflicted mess when it comes to immigration — apparently because those “calling the shots” are more “Stephen Miller Lite” than they are Julian Castro and other Democrats who understand the essential importance of immigrants and of standing up for their rights — starting with the “retail level” of American justice. 

As one frustrated experienced practitioner recently told me: “Biden’s entire immigration policies are a train wreck. He didn’t take the action he said he would. The practice of immigration law is soul crushing.”

“Soul crushing!” Those words should be a “wake up call” to the “tone deaf” policy honchos in the Administration. It shouldn’t be this way in a Dem Administration that was elected because they promised to do better and to stand up to the lies, myths, and false narratives of the nativist right! Once in power, Dems don’t seem to be able to distinguish between their friends and their adversaries. That’s proven NOT to be a “formula for success!”

For every immigrant/racial justice advocate that the Biden Administration wears down and demoralizes, two “new recruits” for the NDPA will arise, fully energized to keep litigating, winning, and raising hell until due process, human rights, fundamental fairness, and racial justice get some long overdue ACTION. Based on results to date, that means continuing to “beat Garland’s brains out” in court! The talent and creativity is obviously “out here,” not in Garland’s “Halls of (In)Justice!” Given that the “Stephen Miller Group” is also challenging the Administration in court, Garland will eventually find himself doing nothing but litigating immigration issues and getting walloped by both sides!

Meanwhile, as the Administration daily fails on immigration, human rights, and racial justice within the Executive Branch, my mailbox and message box are overflowing with desperate requests from Dem politicos, from Joe, Kamala, Nancy, and Chuck on down, for more donations of money and time. But, once the election cycle is over, our views are ignored, and we are treated as “PNGs.” Meanwhile, those who actively undermined immigrants’ rights and diminished due process are rewarded or retained in key positions where they continue to heap damage on the most vulnerable among us and frustrate their supporters.

Doesn’t seem like a sustainable future for the Democratic Party or for American democracy! But, hey, I’m just a retired Immigration Judge. Maybe my friends in the social justice movement enjoy being treated as “chopped liver” — frozen out and ignored — once they have helped elect Dems.

Republicans boldly “run on the big lie.” Meanwhile, Dems “run from the truth” about immigrants and their all-important role in America’s future! Go figure!

A quote from a recent NY Times article struck me as aptly summarizing the failure of leaders of both political parties to take an honest, creative, and practical approach to the opportunity presented by continuing human migration:

Immigration in the United States is broken, but one side of the fence wants to study the root causes of the problem, and don’t want to see what’s happening right here,” Mr. [John] Martin [deputy director of the Opportunity Center for the Homeless in El Paso] said, squinting beneath the brim of his cowboy hat. “And the other side wants to build a wall which would become a dam and eventually burst.”

https://www.nytimes.com/2022/10/20/opinion/el-paso-migrant-buses-republicans.html?smid=nytcore-ios-share&referringSource=articleShare

Former AG Jeff “Gonzo Apocalypto” Sessions went to the border to preach his “gospel” of anti-immigrant hate, lies, nativist myths, and to “fire up” officials for one of the biggest unconstitutional abuses of prosecutorial authority in modern American history.  Indeed, that is when one reporter coined the term “Gonzo Apocalypto” to describe the absolute nonsense spewing from Sessions’s mouth.

Sessions orchestrated a vile “strategy” of family separation from which the victims haven’t yet, and may never, fully recover. Interestingly, he has also escaped accountability.

By contrast, Garland, to my knowledge, has never bothered to visit the border and engage first-hand with the human carnage his failed “courts” and abuse of both the Constitution and asylum law inflict on others. He interacts neither with those outside government trying to uphold the rule of law nor the enforcement officials given “mission impossible.” He absolves himself from observing the effect that his failure to carry out orderly, humane, legally compliant refugee and asylum processing — using existing law rather than extralegal “gimmicks” — has on communities on the border and in the interior.

Sessions was a vile, intellectually dishonest, and immoral leader; Garland is simply a failed and disengaged one. But, the difference might not be readily apparent to most practitioners laboring in the foul trenches of Garland’s dysfunctional “court” system.

From my observation, there are folks out here interested in, and capable of, addressing the opportunities, potential benefits, and challenges presented by the inevitability of human migration in the 21st Century. Most of them, unlike “pontificating politicos,” have, at some point, “walked the walk” with those humans caught up in the migration dilemma, on both sides of the border.

But, leaders of neither party are interested in the constructive ideas and solutions developed within the rule of law that these unusually talented and dedicated individuals can offer. As long as that is the case, the realities of human migration, false promises, racially driven bias, and wildly inconsistent application of justice in America will continue to vex both politicians and the voters who put such “non-problem-solvers” in office!

🇺🇸Due Process Forever!

PWS

10-25-22

Related posts:

  1. 🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership!  — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  4. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

☠️ GARLAND’S QUASI-JUDICIAL TORTURE CHAMBERS — FROM COAST TO COAST, EOIR APPLIES WRONG LEGAL STANDARDS, IGNORES EVIDENCE IN EFFORT TO ILLEGALLY SEND PEOPLE TO TORTURE!  

Star Chamber Justice
If he survives Garland’s EOIR, this guy faces more torture if wrongfully removed to torture elsewhere. “Justice”
Star Chamber
Style

“Sir Jeffrey” Chase reports on H.H. v. Garland, a case in which the Round Table filed an amicus brief in behalf of the respondent. Many thanks to our friends Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on the brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals.

H.H. V. Garland

 

For the reasons detailed above, we conclude that the BIA erred by: (1) applying the incorrect standard of review to uphold the IJ’s denial of CAT relief as to Honduras, in a misguided effort to accommodate the IJ’s error of law in requiring a showing of willful acceptance rather than willful blindness; (2) improperly failing to address H.H.’s argument that he would likely be tortured by or at the instigation of Honduran officials; and (3) failing to meaningfully address H.H.’s argument that MS-13 members may act under color of law.21 Accordingly, we grant the petition for review, vacate the BIA’s decision insofar as it denied H.H. deferral of removal to Honduras, and remand the case for further proceedings consistent with this opinion.

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Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit. 

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-cat-guatemala-de-leon-lopez-v-garland#

“Risvin Valdemar De Leon Lopez (“De Leon”), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) order denying his application for relief under the Convention Against Torture. We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.”

[Hats off to Karla Kraus!]

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—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Almost every time I “feature” the ongoing legal and operational disaster @ EOIR, Garland furnishes me with concrete examples. https://immigrationcourtside.com/2022/10/22/%e2%98%a0%ef%b8%8f%e2%9a%b0%ef%b8%8f%f0%9f%92%80garlands-star-chambers-slow-violence-on-people-of-color%f0%9f%a5%b5-bias-bad-law-bungling-bureaucracy/

These are two “doozies” from last Friday!

These aren’t “minor bureaucratic matters,” no matter how much Garland and his “clueless crew” over @ DOJ might want to treat them that way and hope they will go away! They won’t! Not if the thousands of us involved in the due process, fundamental fairness, and racial justice for all movement have anything to say about it (e.g., the “NDPA”)!

And we will continue to speak out against the parody of justice @ Garland’s EOIR! It’s a disingenuous and disgraceful performance by a Democratic Administration that will have “down the line” consequences! 

While the Trump Administration admittedly left EOIR in complete shambles, that doesn’t excuse the Biden Administration’s failure to fix it. It’s not “rocket science!”  But, there is no way that the “Clown Show” 🤡 that Garland has chosen to run and staff EOIR (many inexplicably “held over” from the Sessions/Barr debacle) can fix it!

These are literally life and death cases in which Garland’s “faux expert” BIA “pretzels” the law, misconstrues facts, and “selectively reads” records to reach wrong results that deny protection and decree deportation! How is this acceptable performance from any tribunal, let alone one that is supposed to insure justice for those whose lives are on the line? How is this acceptable performance from a Democratic Administration that claimed fealty to human rights and racial justice, but takes neither seriously when it comes to EOIR?

There are plenty of “practical scholar experts” out here in the non-governmental sectors who would make much better appellate and trial judges, and administrators, than many of those Garland is inflicting on migrants and their attorneys. 

What’s wrong with the Biden Administration? What’s “right”  about failed justice @ Justice?” 

The poor performance of Garland as the “steward” of the Immigration Courts at EOIR is a threat to humanity, democracy, and a colossal waste of judicial and litigation resources at all levels of our justice system!

Alfred E. Neumann
Maybe Merrick Garland SHOULD worry about running “America’s worst courts” and inflicting life-threatening injustice on his fellow humans!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-23-22

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. 🏴‍☠️“ANY REASON TO DENY ASYLUM” BIA HITS ROUGH SLEDDING FROM COAST TO COAST — 1st Cir. (Bogus Adverse Credibility) & 9th Cir. (Ludicrous “Not Persecution” Finding) — But, EOIR’s “Asylum Denial Assembly Line” Wins Love From Trumpy 9th Cir. Judge!

☠️⚰️💀GARLAND’S STAR CHAMBERS — “SLOW VIOLENCE” ON PEOPLE OF COLOR!🥵— Bias, Bad Law, Bungling Bureaucracy! — “Where Due Process Goes To Die!” 🤮 — Upcoming Book Will Expose Garland’s Lawless, Cruel, Inhumane “Court” System!

 

Slow Injustice @ EOIR
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable!
The Wasp 1882-01-06 cover Slow but sure.jpg
Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man.
George Frederick Keller
Public domain

Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:

https://lawprofessors.typepad.com/immigration/2022/10/from-the-bookshelves-the-slow-violence-of-immigration-court-procedural-justice-on-trial-by-maya-pagn.html

Friday, October 21, 2022

From the Bookshelves: The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak

By Immigration Prof

The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak (forthcominng March 2023, NYU Press)

The publisher’s description of the book reads as follows:

“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.

Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”

KJ

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The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system! 

That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.

They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!

Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,

Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:

Maya Barak, Ph.D.

Associate Professor of Criminal Justice Studies

Maya P. Barak
Maya P. Barak, PhD
Assistant Professor of Criminal Justice Studies
U. of Michigan -Dearborn
PHOTO: UM-D Websitew

College of Arts, Sciences, and Letters

College-Wide Programs

mbarak@umich.edu

1070 Social Sciences Building | 4901 Evergreen Road | Dearborn, MI 48128

Personal Website

Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies

Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime

Biography and Education

I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.

Education

Ph.D. in Justice, Law and Criminology

Teaching and Research

Courses Taught

Selected Publications

Books

Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.

Selected Articles

Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).

Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.

Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)

Barak, Maya, Leon, K., and Maguire, Edward. 2020. “Conceptual and Empirical Obstacles in Defining MS-13: Law-Enforcement Perspectives.” Criminology and Public Policy (https://onlinelibrary.wiley.com/doi/10.1111/1745-9133.12493).

Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.

Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!

What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!

Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

🇺🇸Due Process Forever!

PWS

10-22-22

Related posts:

  1. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  4. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report

🇺🇸🗽POLITICS/COMMUNICATION: Anand Giridharadas Has A Plan For Defeating Fascism!

https://twitter.com/intelligence2/status/1583053222495031297?s=20&t=0qtnWoCtSNnhf3i6nq3hVA

We’re not going to defeat fascism by talking about policy. Nor by issuing grave warnings. Nor by praying for the rain of indictments. Nor by despair.

We are going to defeat it by outcompeting it. Here is a proposal for how we can do that right now.

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

Watch the compelling “spot on” video at the above link. Many thanks to my friend Charles Kuck for passing this on!

The Dems once were the “party of practical problem solvers” — particularly at the local level with great organizations that effectively addressed issues on the minds of the local populace. After all, it was Dem House Speaker, the late Tip O’Neill, who famously said that “All politics is local” (although, perhaps contrary to popular notions, he did not “coin” that phrase.)

It’s not that today’s GOP solves problems. Far from it! Indeed they specialize in division, destruction (“the wrecking crew”), and making things worse. (How would you like to go to GOP Rep. MTG or Virginia GOP Gov. Glenn Youngkin to get help with mistreatment of your trans kid in school? Good luck with the one!)

Yet the GOP does excel in one area. That is channeling and fanning the rage, bitterness, and anger of folks in the community who feel left out or that “the system” has betrayed them. They are also great at using that collective anger and resentment for their own political ends — usually anti-democracy actions or picking on, demonizing, and falsely blaming vulnerable groups in society for all their ills.

Anand says it’s time for Dems to get back to communicating and problem solving: “outcompeting” and “outperforming,” if you will! That’s certainly true on a larger scale. But, it’s also true at Garland’s dysfunctional EOIR. There, bureaucratic nonsense, “built to fail gimmicks,” and false “deterrence rationale” have replaced scholarship, timeliness, and practical problem solving directed at the achievable, yet inexplicably elusive, “common good.” Time for a difference approach at the critical, yet often ignored, “retail level” of democracy!

🇺🇸 Due Process Forever!

PWS

10-20-22

Related posts:

  1. 🏴‍☠️NO ACCOUNTABILITY: ONE YEAR AFTER PUBLICLY INSTIGATING A FAILED COUP, TRUMP CONTINUES TO OPENLY PLOT TO OVERTHROW DEMOCRACY, AS NEO-FASCIST GOP & ITS TOADY POLITICOS LINE UP BEHIND THE “BIG LIE!” — THE GOP, & THOSE WHO SUPPORT & ENABLE IT, HAS ACTUALLY BECOME THE BIGGEST THREAT TO THE FUTURE OF OUR REPUBLIC!🤮👎🏽🏴‍☠️
  2. 😒LOOKING THE OTHER WAY @ GARLAND’S DOJ:  ☠️ Deadly Civil & Human Rights Violations Inflicted On Individuals Of Color By DHS/DOJ’s “New American Gulag!”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. POLITICS: KURT BARDELLA @ LA TIMES: WHAT “DEMS DON’T GET” THREATENS AMERICAN DEMOCRACY☠️: “They should do what the Republicans would do given a chance: Refuse to compromise and go on the attack. This difference, of course, is that the Democrats are going after the insurrectionist machine and defending democracy while the GOP is tearing it down.”

🤯 GARLAND’S BIA & OIL SCREW UP 🔩 YET ANOTHER CIMT CASE, IN 3RD CIR! — Biden Administration’s Human Rights/Racial Justice Hypocrisy Continues To Take A Toll!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

 

Dan Kowalski reports from LexisNexis Immigration community:

https://www2.ca3.uscourts.gov/opinarch/213100np.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca3-cimt-victory-king-v-atty-gen#

“King, a native and citizen of Jamaica, arrived in the United States in August 2016 pursuant to a visa, which later expired. He pleaded guilty in January 2020 to third-degree felony fleeing or eluding a police officer in violation of 75 Pa. Cons. Stat. § 3733(a). The Government initiated removal proceedings and charged King as removable for having overstayed his visa and for having been convicted of a crime involving moral turpitude (“CIMT”) within five years of entering the United States. See 8 U.S.C. §§ 1227(a)(1)(B), (a)(2)(A)(i). King later married a United States citizen and has applied to adjust to the status of lawful permanent resident. … The BIA … conclud[ed] that a Pennsylvania felony fleeing conviction is categorically a CIMT because it involves a culpable mental state of willfulness and applies to reprehensible conduct. … The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT. For the foregoing reasons, we will grant the petition for review.”

[Hats off to William C. Menard!  And personally, I think this case should be published, because it highlights errors made by the IJ, the BIA and OIL.]

William C. Menard
William C. Menard, Esquire
Member
Norris McLaughlin
PHOTO: Firm

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

It’s always helpful to have superstars 🌟 like William C. Menard of Norris McLaughlin on the side of the NDPA. Too bad they and other top flight lawyers “out here” who know and understand the plight of migrants and its inextricable ties to racial justice in America aren’t “running the show” at the DOJ like they should be! The American legal system would function much better if due process and best practices for migrants were a part of it (that is, “institutionalized”), rather than something that has to be achieved case-by-case at a great cost in resources and inconsistent justice!

I concur with my friend Dan that this case should be published as yet another public reminder and “citable” permanent record of the seemingly unending stream of errors, misguided arguments, and “worst practices” streaming out of Garland’s dysfunctional EOIR and OIL!

A Dem Administration inexplicably continues to subject migrants and their representatives to “4th class justice” from Garland’s broken EOIR. Ironically, at the same time, the Administration is begging advocates and NGOs to “empty their pockets and pound the streets” in behalf of their candidates. Talk about “being taken for granted!”

Go figure!

🇺🇸 Due Process Forever!

PWS

10-18-22

 

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!
  3. ⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️
  4. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!

⚖️ “HON. SIR JEFFREY OF CLAIRVOYANCE” — The Day After His Blog On “Ineffective Assistance,” The 3rd & 10th Cirs “Blow Out” Garland EOIR’s Inept Approach!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-ineffective-assistance-saint-ford-ii#

https://www2.ca3.uscourts.gov/opinarch/211729p1.pdf

https://www2.ca3.uscourts.gov/opinarch/211729po.pdf

“The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers. Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand. … AMBRO, Circuit Judge, concurring Arckange Saint Ford will get a second shot at seeking withholding of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full. But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing. [Emphasis added.]”

“The opinion and judgment filed on May 16, 2022 [34 F.4th 201 (3d Cir. 2022)] are hereby vacated. The Clerk is directed to file the amended opinion and re-enter the judgment contemporaneously with this order.” – Saint Ford v. Atty. Gen.

[Hats off again to Robert Andrew Painter!]

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110752008.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca10-mtr-remand-singh-v-garland#

“Singh argues the BIA committed legal error in denying his motion to reopen because it failed to cite or apply the prejudice standard from Matter of Lozada and its progeny—i.e., that the alien “show a reasonable likelihood that the outcome would have been different,” Molina, 763 F.3d at 1263 (internal quotation marks omitted)— and instead applied an elevated standard of prejudice from Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020)—i.e., that the alien “overcome” a prior adverse credibility determination. We agree. … The BIA applied an incorrect legal standard in deciding whether Singh had been prejudiced by his attorney’s alleged ineffective assistance because it required him to “overcome” the adverse credibility determination to show prejudice. The BIA therefore abused its discretion in denying Singh’s motion to reopen. See Qiu, 870 F.3d at 1202 (“[C]ommitting a legal error . . . is necessarily an abuse of discretion.” (internal quotation marks omitted)). On remand, the BIA should consider whether there is “a reasonable likelihood that the outcome would have been different but for counsel’s deficient performance.” Mena-Flores, 776 F.3d at 1169 (internal quotation marks omitted).”

[Hats off to Jessica K. Miles of El Paso!]

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

Wrong legal standards, mistakes at both trial and appellate levels, sloppy work, unfair results in “life or death” cases. Why is this “acceptable quasi-judicial performance” in the Biden Administration? Why isn’t Garland being held accountable for his life-threatening, ongoing, anti-due-process “clown show” @ EOIR?🤡☠️

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

🇺🇸 Due Process Forever!

PWS

10-13-22

Related posts:

  1. 🏴‍☠️GARLAND’S FAILED BIA REAMED BY 3RD CIR. ON ANTI-ASYLUM BIAS, LACK OF BASIC COMPETENCE! — “First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution.” — Ghanem v. AG
  2. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  3. ☠️🤮 “TEFLON MERRICK” — GROTESQUE DUE PROCESS MELTDOWN @ GARLAND’S EOIR CONTINUES UNABATED, WHILE AG AVOIDS ACCOUNTABILITY — 3RD CIR. CASTIGATES GARLAND’S BIASED & INCOMPETENT “STAR CHAMBERS” — “It is more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”
  4. ⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

⚖️ HON. “SIR JEFFREY” CHASE ON LOZADA/INEFFECTIVE ASSISTANCE OF COUNSEL— Reviving My “Rivera Dissent,” While Highlighting More Than A Decade Of EOIR/DOJ Failure To Provide Effective Guidance!

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

 

https://www.jeffreyschase.com/blog/2022/10/11/amending-lozada

Amending Lozada?

October 11, 2022

In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.

A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4

By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7

A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9

Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.

The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:

I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12

Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.

Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:

By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15

In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16

Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18

When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.

Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.

In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.

According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22

Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.

Copyright 2022 Jeffrey S. Chase.All rights reserved.

Notes:

  1. 466 U.S. 668 (1984).
  2. Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).
  3. Id.
  4. The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.
  5. 19 I&N Dec. 637 (BIA 1988).
  6. Id. at 638.
  7. Id. at 639.
  8. American Immigration Council, Practice Advisory, “Seeking Remedies For Ineffective Assistance of Counsel in Immigration Cases,” (Jan. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_cases_practice_advisory.pdf, at 11.
  9. Id.
  10. 10.21 I&N Dec. 599 (BIA 1996) (en banc).
  11. 11.Id. at 606.
  12. 12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.
  13. 13.23 I&N Dec. 553 (BIA 2003).
  14. 14.Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec. 710 (A.G. Jan. 7, 2009).
  15. 15.Id. at 737-38.
  16. 16.Id. at 737. Moses E. Herzog, the fictional protagonist of Saul Bellow’s novel Herzog, authored numerous strongly-worded letters that he never sent.
  17. 17.Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009).
  18. 18.Id. at 2.
  19. 19.81 Fed. Reg. 49556, 49565 (July 28, 2016), https://www.federalregister.gov/documents/2016/07/28/2016-17540/motions-to-reopen-removal-deportation-or-exclusion-proceedings-based-upon-a-claim-of-ineffective.
  20. 20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).
  21. 21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”
  22. 22.Private email to the author.

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

Republished by permission.

As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”

This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.

Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing! 

Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum. 

“Lozada reform” is long overdue. But, so is meaningful EOIR reform! 

Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.

Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”

🇺🇸 Due Process Forever!

PWS

10-12-22

Related posts:

  1. ⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!
  2. ‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

THE GIBSON REPORT — 10-10-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — AMONG HEADLINERS: Ignoring Kids At Risk; Biden’s Marihuana Pardon Unlikely To Help Many Migrants; Garland’s DOJ On Wrong Side Of IJ “Muzzling” Suit!

 

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

NEWS

 

Appeals Court Says DACA Is Illegal but Keeps Program Alive for Now

NYT: The decision from the three-judge panel on the U.S. Court of Appeals for the Fifth Circuit — one of the country’s most conservative federal appellate courts — affirmed a 2021 lower court decision. The Biden administration will need to continue its legal fight to enroll new applicants in the program, called the Deferred Action for Childhood Arrivals, or DACA.

 

Biden’s marijuana pardon not likely to help many immigrants with deportation cases

SD Union-Trib: Simple marijuana possession is usually charged at the state rather than federal level, so if governors follow Biden’s lead, there could be a wider impact on immigration court cases…Biden’s Thursday proclamation also explicitly says that undocumented noncitizens are not eligible for the pardon.

 

New York Faces Record Homelessness as Mayor Declares Migrant Emergency

NYT: Mayor Eric Adams stepped up calls for state and federal aid as the number of people in city shelters topped 61,000. See also Democrat-led Texas city steps up migrant busing to New York, outpacing Republican effort; Documents: Florida migrant transport planning began in July.

 

“A Failure on All Our Parts.” Thousands of Immigrant Children Wait in Government Shelters.

ProPublica: The public has largely stopped paying attention to what’s happening inside shelters and other facilities that house immigrant children since President Donald Trump left office, and particularly since the end of his administration’s zero tolerance policy, which separated families at the southern border.

 

Migrants from three countries are driving the spike in encounters at the southern border, swamping a backlogged immigration system

CNN: Migrants from just three countries – Venezuela, Nicaragua and Cuba – made up about 56,000 of those encounters, or about 28 percent, federal data shows. See also US immigration: Why Indians are fleeing halfway around the world.

 

Blinken Announces Aid for Migrants, Refugees

VOA: Shortly before attending OAS ministerial talks on the perplexing question of migration in the western hemisphere, Blinken told reporters of “new humanitarian and bilateral and regional assistance” to the tune of $240 million. See also United States fell far short of refugee goal last fiscal year

 

Critic of Biden border policy in line to oversee DHS budget

Roll Call: With Cuellar in line to be the top Democrat in the next Congress on the House Homeland Security Appropriations Subcommittee, which oversees the Immigration and Customs Enforcement and Customs and Border Protection budgets, some Democrats and advocacy groups are growing concerned.

 

Border agents fired fatal shots after migrant grabbed weapon, FBI says

WaPo: A Mexican man who was shot fatally inside a Border Patrol station in Texas this week had grabbed an “edged weapon” off a desk inside the facility and continued to approach U.S. agents after they attempted to stop him with a Taser, the FBI said in a statement late Wednesday.

 

2 Russians Seek Asylum in US After Reaching Remote Alaska Island

VOA: Two Russians who said they fled the country to avoid military service have requested asylum in the U.S. after landing in a small boat on a remote Alaska island in the Bering Sea, U.S. Sen. Lisa Murkowski’s office said Thursday.

 

Undaunted by DeSantis, immigrant workers are heading to Florida to help with hurricane cleanup

CNN: Word that immigrants are now coming to help clean up some of his state’s most storm-ravaged communities hasn’t softened the governor’s stance.

 

LITIGATION & AGENCY UPDATES

 

High Court Won’t Review ‘Unfair’ Deadline For Deported Man

Law360: The U.S. Supreme Court on Monday turned away a deported Salvadoran man’s bid to look into an allegedly “unfairly” crafted deadline for filing deportation order reconsideration requests, ending his decades-long hope of returning to the U.S.

 

5th Circ. Affirms Toss Of DACA, Asks For Review Of Final Rule

Law360: The Fifth Circuit on Wednesday affirmed a Texas judge’s ruling that vacated the Obama administration’s Deferred Action for Childhood Arrivals program, which has protected some young immigrants from deportation, and barred new applicants, but asked the lower court to review the Biden administration’s recent final rule on the DACA program.

 

CA5 On Evidence, CAT, Cameroon: Ndifon V. Garland

LexisNexis: Ndifon claims the BIA failed to consider country conditions evidence when separately analyzing his CAT claim. We agree.

 

CA9 on Consular Reviewability: Muñoz v. Dept. of State

LexisNexis: Because we conclude that the government failed to provide the constitutionally required notice within a reasonable time period following the denial of Asencio-Cordero’s visa application, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability.

 

Matter Of Bador, 28 I&N Dec. 638 (BIA 2022)

LexisNexis: A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition

 

Minn. Judge Ends Migrant Detention Suit, After $80K Deal

Law360: A Minnesota federal judge ended an American Civil Liberties Union-backed suit alleging that U.S. Customs and Border Protection assaulted and degraded two teenagers in its custody, after the agency agreed to pay the girls $80,000 to resolve the claims.

 

Fla. Seeks Trial Over Alleged US Policy Not To Detain Migrants

Law360: Florida pushed for a trial to resolve its contention that the Biden administration has a policy of releasing immigrants subject to detention, but asked a federal judge to first declare that the state has standing to challenge the alleged policy.

 

Feds Want Immigration Judges’ ‘Muzzled’ Speech Suit Axed

Law360: The head of a U.S. Department of Justice office on Friday asked a Virginia federal judge to nix a suit filed by an immigration judges association claiming they are “muzzled” by a policy that they say bars them from discussing their personal views on immigration, contending that a new policy encourages speech and simply requires supervisory approval.

 

USCIS 30-Day Notice and Request for Comment on USCIS Online Account Access

AILA: USCIS 30-day notice and request for comment on USCIS’s Online Account Access system, formerly called Identity and Credential Access Management (ICAM). Comments are due 11/7/22.

 

CBP Announces CDC Screening of Individuals with Travel Nexus to Republic of Uganda

AILA: Following an outbreak of Ebola in the Republic of Uganda, the CDC announced enhanced public health screening for flights departing after 11:59 pm (ET) on 10/10/22, for flights carrying travelers with nexus to Uganda. Said flights will be funneled through JFK, EWR, IAD, ATL, and ORD.

 

RESOURCES

 

EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Given the disgraceful mess @ EOIR, it’s understandable that Garland & Co. fear IJ’s speaking out in public. It’s just not a justifiable position, particularly for a Democratic Administration.

🇺🇸Due Process Forever!

PWS

10-11-22

Related posts:

  1. THE GIBSON REPORT — 03-28-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — HEADLINERS: ICE Lies To Congress About Attorney Access; BIA Flagged By 11th For Another “Categorical Approach” Blunder!
  2. ⚖️THE GIBSON REPORT — 07-11-22 —  Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — Glimpses Of Some Failing Righty Federal Judges & An Administration That Lacks A Bold Plan For Improving Immigration, Human Rights, & Racial Justice, Particularly @ EOIR!
  3. THE GIBSON REPORT:  05-09-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, National Immigrant Justice Center — HEADLINERS: 2d Cir. Reverses BIA On CIMT; Texas AG Targets Legal Assistance To Migrants; EOIR “Friend of Court” Memo; Lack Of Immigrants Hurting U.S. Economy — PLUS BONUS COVERAGE:  New Legal Aid Alliance Aims to Build a Model for Universal Representation for Detained Immigrants!
  4. ⚖️ THE GIBSON REPORT — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC: Stephen Miller Was Even More Of A Disreputable Scofflaw! — 9th Halts BIA’s “Rote Formula” For Improperly Denying CAT W/O Meaningful Analysis — EOIR In Louisiana Continues To Be “Death Valley” ☠️⚰️  For Asylum Seekers:  “‘I feel that the big problem we face today is that there is a real dehumanization of the entire process,’ said Mich Gonzalez, Associate Director of Advocacy at the Southern Poverty Law Center.”

🏴‍☠️ HOW THE “ANYTHING GOES” IMMIGRATION ENFORCEMENT REGIME — ENABLED BY POOR QUASI-JUDICIAL & JUDICIAL OVERSIGHT — ERODES ALL OF OUR CIVIL LIBERTIES!

Eisha Jain
Eisha Jain
Associate Professor of Law
UNC Law
PHOTO: Twitter

Eisha Jain on Lawfare: 

https://www.lawfareblog.com/beyond-deportation

Border enforcement once again dominates contemporary immigration law debates. Yet many legal practices commonly linked to border control—including policing, relocation, and exclusion—actually have little to do with immigration enforcement. Instead, immigration control provides a justification for surveillance and the erosion of civil liberties deep inside the United States. For instance, the governor of Texas issued an executive order this June, asserting the legal authority to arrest people suspected of unlawfully crossing the border or committing “other violations of federal law.” This executive order is framed as being about expanding the pipeline to deportation and, in particular, shoring up federal efforts to promote border security. Yet the reach of the order goes well beyond issues relating to deportation. It raises the central questions: Who decides who appears to be present in the United States without lawful immigration status, and on what basis?

More recently, certain lawmakers have employed the rhetoric of border control to justify busing or flying migrants to locations inside the United States. Texas Governor Greg Abbott (R) tweeted at the time: “We’re sending migrants to [Vice President Kamala Harris’s] backyard to call on the Biden Administration to do its job & secure the border.” Florida Governor Ron DeSantis (R) employed similar rhetoric to justify sending approximately 50 adults and children to Martha’s Vineyard without any apparent prior notice. This relocation may have violated criminal laws. The individuals who were relocated may have been given false information to induce them to board planes. Lawmakers who frame these relocations as a means of border control make the unjustified assumption that the targeted individuals had no claims to remain in the United States. This approach not only ignores laws permitting people to seek asylum but also treats certain U.S. residents as lacking basic civil liberties inside the United States. When government officials claim the ability to lure people from one state to another on false pretenses, they also claim virtually unlimited power to intrude on individual liberty in stated service of immigration control.

. . . .

In a variety of settings, ranging from politically motivated relocations of migrant communities to jailhouse immigration screenings, lawmakers present actions that curtail civil liberties as related to deportation. But a deportation-centric perspective, which centers whether and how certain practices might lead to removal, offers too limited a lens to understand the reach and impact of enforcement practices done in stated service of immigration control. It ignores the full costs of enforcement, including unjustified surveillance and policing. Rather than protecting the polity from a foreign threat, government actions purportedly aimed at immigration control undermine core liberties that ought to be protected within the American political community. If the ultimate aim of immigration law is to create an integrated political community, then we need to consider how law could operate to promote integration and inclusion, rather than treating all enforcement actions as a means to deportation.

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

Read the complete article of the link.

This is why it’s such a disgraceful mistake for Garland and the Biden Administration to allow the racially-charged, anti-due-process travesty at EOIR to continue, largely unabated!  The misguided idea that migrants are not “real persons” under the Constitution — and to a large extent the related view that their lawyers aren’t entitled to the common professional treatment and courtesies extended in most other parts of our legal system — definitely has  “carryover” into the dehumanization of various categories of the “other” and ignoring the compelling evidence of abuse amassed by those lawyers working to keep the system honest.

For example, the Supreme’s dismissive treatment of women’s rights and humanity is definitely related to the degrading treatment of women’s claims in Immigration Court — an overt misogyny encouraged by Sessions, Miller, and their nativist acolytes!  That Democrats as a whole have failed to “pick up” on the serious attacks on equal justice and due process in Immigration Courts and their carryover effect to other parts of our legal system is a bad sign for the future of American democracy. Once a “person” is treated as “less than a full person” under the Constitution, there is no limit to who can become a “legal nonperson.”

🇺🇸 Due Process Forever!

PWS

10-10-22

Related posts:

  1. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. 🏴‍☠️THE PROBLEM @ THE BORDER ISN’T THAT BIDEN HAS  SOFTENED TRUMP’S RACIST, WHITE NATIONALIST, SCOFFLAW RHETORIC! — IT’S THAT BIDEN, GARLAND, & MAYORKAS HAVE FAILED TO RESTORE A ROBUST ASYLUM SYSTEM AT LEGAL PORTS OF ENTRY, STAFFED WITH EXPERT ASYLUM OFFICERS & QUALIFIED IMMIGRATION JUDGES WHO WILL GRANT ASYLUM TO THOSE QUALIFIED, END IDIOTIC TRUMP-ERA MISINTERPRETATIONS & MIS-APPLICATIONS OF ASYLUM LAW, AND ARE DEDICATED TO DUE PROCESS FOR ALL! — Administration’s  Misguided “Trump Lite” Approach Continues To Create Human Misery,☠️⚰️ Trash The Law, 🤮 Without Addressing The Real Problems Generated By Years Of “Malicious Incompetence” 🤡🆘 In U.S. Asylum & Refugee Policies!  — Jack Herrera Reports From The Border For Politico!
  4. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!

🤮DREAMER DISASTER: America’s Future Hung Out To Dry By GOP Nativists In All Three Branches — From Ridiculous Legislative Roadblocks, To Mindless Executive Attacks, To Absurdist Righty Judges Who Ignore Established Law On Prosecutorial Discretion, Dreamers & American Society Suffer The Consequences Of 21st-Century Insurrectionist Republicanism!

Catherine Rampell
Catherine Rampell
Opinion Columnist
Washington Post

Catherine Rampell @ WashPost:

https://www.washingtonpost.com/opinions/2022/10/06/daca-court-ruling-congress-must-protect-dreamers/

. . . .

Many immigration issues are divisive. Protecting dreamers is not. Virtually every poll conducted on the subject finds that Americans of all political persuasions favor granting dreamers some form of permanent legal status, including a path to citizenship. Even Trumpers are on board, surveys show. Faith groups, law enforcement officials, employers, national security experts and other major constituencies besides typical bleeding-heart immigration advocates have urged Congress repeatedly to grant these young immigrants greater legal certainty.

Unfortunately — as is the case on so many issues — Congress has abdicated its responsibility to act. Instead, the executive branch has been tasked with devising temporary workarounds.

In 2012, the Obama administration announced a sort of Band-Aid solution, known as the Deferred Action for Childhood Arrivals (DACA) program. DACA offers some of these young immigrants access to (temporary) work permits and protections from deportation, which must be frequently renewed. Eligibility extends only to those who meet certain age and educational requirements, have lived here continuously since 2007 and pose no threat to public safety, among other conditions.

This program was generally expected to be a stopgap while Congress worked on broader immigration reforms or at least a pathway to citizenship for dreamers; so far, neither has materialized.

[As DACA immigrant program turns 10, legal challenges persist]

In the decade since it was introduced, DACA has weathered multiple legal challenges — including from a coalition of red states led by Texas, as well as attempted repeal by President Donald Trump. For now, the program remains mostly intact while the red-state challenge wends its way through the courts. But DACA’s days look numbered.

. . . .

This is hardly the only immigration issue on which Republican politicians have complained about executive overreach yet been reluctant to exercise their own powers. Other vulnerable, sympathetic populations of immigrants — such as the Afghan allies who were temporarily “paroled” into the United States — are stuck in their own legal limbo unless and until Congress acts.

But it’s always easier for politicians to grandstand over everyone else’s immigration policy choices than to produce solutions of their own.

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

Read Catherine’s complete article at the link.

How stupid and cruel is the GOP’s assault on Dreamers? It’s not like most “Dreamers” are going anywhere. After all, there are already about 2 million individuals (not to mention family members, employers, etc.) backed up on Garland’s dysfunctional Immigration Courts. And, under Garland’s misguided leadership, more judges are actually building more backlog!

But, without DACA’s work authorization, those not eligible for other forms of relief (e.g., asylum, cancellation of removal) will lose their authorization to work. Since many are in critical or essential jobs with employers who can’t afford to be out of compliance with Federal laws, it’s reasonable to assume that Dreamers would lose those jobs. That means that many will have to take lesser jobs in the substantial “underground economy” operating in the U.S., largely as a result of the GOP’s obstinance on sensible immigration policy.

If that appears stupid, it’s because it is! But, what else is new with the GOP’s cruel, xenophobic, and unrealistic approach to immigration.

It’s remarkable that out of touch righty judges on the 5th Circuit, whose jobs and existence actually depend on the systemic non-prosecution of most Federal offenses, would actually have the gall to issue their off the wall ruling dumping on Dreamers! In reality, by necessity, only a small number of violations of Federal statutes are prosecuted. See. e,g., https://prisonprofessors.com/federal-crimes-to-prosecute-or-not/.

How vigorously did the Trump Administration pursue violations of environmental laws, civil rights laws, tax laws, ethics laws, or white collar crime laws, etc? Not very! Indeed, to give one egregious example, under Sessions and Barr, the policy was to turn a “blind eye” to serious Constitutional violations by law enforcement! See, e.g., https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/05/03/the-feds-are-investigating-local-police-departments-again-heres-what-to-expect

The Fifth Circuit’s “off the wall” apparent theory that Federal officials lack discretion to redirect prosecution resources toward the most serious offenders is pure “Federalist Society political poppycock!” It’s particularly out of bounds to critique the Feds for taking steps to insure that such discretion is exercised uniformly and reasonably, rather than arbitrarily and capriciously. 

I had lots of experience with “PD” programs over four decades in Federal service. The DACA program is far and away the premier “model” program for the effective and rational exercise of PD. 

The major impediment to the rational immigration law and policy adjustments America needs is today’s nativist-driven GOP. Unless and until enough American voters wise up and throw the GOP out at all levels, America will not achieve it’s full potential!

🇺🇸 Due Process Forever!

PWS

10-09-22 Continue reading 🤮DREAMER DISASTER: America’s Future Hung Out To Dry By GOP Nativists In All Three Branches — From Ridiculous Legislative Roadblocks, To Mindless Executive Attacks, To Absurdist Righty Judges Who Ignore Established Law On Prosecutorial Discretion, Dreamers & American Society Suffer The Consequences Of 21st-Century Insurrectionist Republicanism!

Related posts:

  1. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  4. 🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”

🏴‍☠️🤮 HALLS OF INJUSTICE: Allegations Of Racism, Misogyny, Islamophobia, & Other Bias Have Been Swirling Around Garland’s Dysfunctional EOIR — Now, The Ohio Immigrant Alliance Is Seeking & Assembling Examples To Force Long Overdue Action!

Garland’s “vision of justice” for asylum seekers and other migrants at EOIR leaves something to be desired:

Four Horsemen
Folks with wrong-headed “take no prisoners” views on asylum law were “rewarded” with “ judgeships” at both the trial and appellate levels of EOIR under the Trump Administration. Many continue to serve and discriminate against legitimate asylum seekers under Garland. Just check out the number of “sitting IJ’s” with outrageously high “asylum denial rates” near or in excess of 90%, according to TRAC Immigration. Why haven’t these important, non-life-tenured positions been “merit re-competed” to place the “best, brightest, and most qualified” on the Immigration Bench?
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
Jaundiced attitudes about women (particularly those of color) and gender-based asylum claims among EOIR judges have neither been “rooted out” nor effectively addressed by Garland. As we can see, de-humanization of women and stripping them of dignity under asylum laws carries over into other legal arenas! Targeted, endemic. societal persecution of women is often intentionally minimized and mis-characterized as “random violence,” “personal disputes,” “mere jealousy,” or “not that serious” in Immigration Court! “Fictionalized accounts” of the ability of abused women to seek protection from authorities in countries where femicide and rape are rampant   are sometimes employed to deny legitimate asylum claims in Garland’s broken courts.
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Star Chamber Justice
Wrong , “unduly restrictive,” asylum precedents and discredited methods (“Aimless Docket Reshuffling” — on steroids under Garland — is a key example) continue to harm asylum seekers in Garland’s dysfunctional “courts.” — Public Realm

 

https://ohioimmigrant.org/2022/09/08/wanted-examples-of-racism-and-other-bias-in-us-immigration-court/

WANTED: Examples Of Racism And Other Bias In US Immigration Court

September 8, 2022tramontelaComments Off

on WANTED: Examples of racism and other bias in US immigration court

. . . .

The nation’s Immigration Courts have—thus far—flown under the public’s radar screen. Yet these are the places where life-or-death decisions are made, often for subjective and even racist reasons. That is why the Ohio Immigrant Alliance is collecting examples of racist, misogynistic, Islamophobic, and other biased statements and decisions made by Immigration Judges from across the country. We are working with a research team to analyze the cases and produce a report in early 2023.  Here are a few examples.

Contact Lauren Hamlett (hamlett.15 AT buckeyemail.osu.edu) for more information or to share examples. This can be in the form of court documents and judges’ decisions or an interview with an immigrant or attorney. We will adhere to all privacy requirements requested by the immigrant and not publish anything without their consent.

The report, to be published in 2023, will shine a light on how racism shows up in Immigration Court using real-life examples. These findings will enrage anyone who believes the U.S. should work toward becoming a nation that guarantees “justice for all.”

See this testimony for more information, and contact Lauren to share your experiences.

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

I was struck by the undeniable truth — scandalously ignored by Garland, his lieutenants, and Biden Administration policy officials — contained in the January 20, 2022 statement by Lynn Tramonte, Ohio Immigrant Alliance, to the House Judiciary Committee considering the need for an independent, professionally-administered, merit-based Immigration Court. 

The U.S. Is Deporting People Who Qualify for Asylum

The current U.S. immigration system is not designed to function fairly, but to fail. There are many examples of this, but today I will focus on examples from the U.S. Immigration Court.

Lynn’s full statement is available at the “this testimony” link above. I’ve made this point over and over!

Because the current system is purposely biased against asylum seekers, particularly those of color arriving at our Southern border, the “statistics” purportedly showing that few will qualify for asylum are totally bogus! Then, they are inexcusably cited by so-called “mainstream media” who haven’t done their homework! This perpetuates the “nativist myth” of the “illegitimate asylum seeker” which is then used to dehumanize refugees and deny them their legal and human rights!

Fact is, because we don’t have a legitimate, expert asylum adjudication system, we don’t really know how many qualified refugees are being illegally turned away or denied. But, it’s a safe bet that a fair, expert, professionally administered asylum system would grant legal protection to many more — probably a majority — of those who pass credible fear! 

The problem is NOT, as Sessions and other nativists claimed, that too many individuals pass “credible fear.” It’s that a biased, anti-asylum, mal-administered, and constitutionally flawed system wrongfully denies far, far, far too many legitimate claims! And, Garland’s incredibly dysfunctional EOIR is at the heart of this problem!

Fixing EOIR is an essential first step in “re-legitimizing” our entire floundering justice system. But, Garland isn’t up to the job!

Asylum is an important form of legal immigration and an opportunity for America to put its best foot forward by properly, fairly, and timely screening and admitting those who can qualify for refuge and will be key contributors to our nation’s future. The babble of GOP nativists like DeSantis, Cruz, Abbott, and others about “illegals” is total BS! 

Asylum seekers have every right to be here and pursue fair, timely, and professional adjudication of their claims — something that’s elusive — highly unlikely to happen — under today’s “designed to fail” system! That includes the “new, designed to fail, improperly staffed and mindlessly operated asylum regulations.” See, e.g., https://immigrationcourtside.com/2022/10/03/%f0%9f%98%b0asylum-programmed-for-failure-refugee-roulette-three-rr3-confirm-what-many-of-us-said-right-off-the-bat-about-biden-admin/

It’s an ongoing national disgrace that Garland has failed to reform his Immigration Courts, eliminate bias and invidious discrimination from his judiciary, install quality, expertise, and professionalism, and insist that the Biden Administration abandon “Miller Lite,” nativist policies and mis-interpretations of the law that are diminishing our nation and endangering our future; that he also has ridiculously chosen to “go to war” with experts, NGOs, attorneys, and others seeking to change and improve his disgraceful mess at EOIR!

What’s the purpose and function of an Attorney General who operates broken and biased “courts,” defends the indefensible, and refuses to stand up for the fair application of the law to some of the most vulnerable among us?

In the meantime, submit your “real life” examples of what really happens to vulnerable humans in “America’s worst courts” to Ohio Immigrant Alliance at the above link.

🇺🇸 Due Process Forever!

PWS

10-07-22

Related posts:

  1. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

🤮☠️ MORE THAN 100 ORGANIZATIONS (WHO, UNLIKE GARLAND, ACTUALLY PRACTICE BEFORE HIS DYSFUNCTIONAL “COURTS”) RIP GARLAND’S INSANE, DUE-PROCESS-DENYING “DEDICATED DOCKETS!”

Wheels are off at EOIR
The wheels are off and the wagon rotting away at EOIR!
PHOTO: Creative Commons
Alfred E. Neumann
Alfred E. Neumann has been “reborn” as Judge “Teflon” Merrick Garland! “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

The undersigned 106 legal service providers, court observers, and allied organizations located in the cities where the Dedicated Docket now operates. Together, we have observed hundreds of cases on the Dedicated Docket throughout the country. Our collective experience reveals a process rife with unfairness: lack of legal representation, expedited and arbitrary timelines, removal orders against pro se respondents (including young children), as well as courts marked by confusion and in some cases hostility.

Here’s the letter/report:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/groups-detail-grave-concerns-to-garland-re-dedicated-docket

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

What’s going on here!? As due process and equal justice are trashed, and lives and futures endangered, some of the best legal minds in America are forced to spend time pointing out the obvious to our “disconnected from reality” AG! What a waste! 

This inexcusable disaster was totally predictable in advance! NO expert recommended this stupid, “sure to fail” “haste makes waste” approach to asylum in a faux “court system” already reeling from bias, management incompetence, hostility to due process, worst practices, far too many poorly qualified judges (some selected by Sessions and Barr for their perceived willingness to “railroad” asylum seekers), a notoriously anti-asylum appeals board, and rock bottom morale! Yet, Garland went ahead! 

And NOBODY among his subordinates — not DAG Lisa Monaco, not AAG Vanita Gupta, not AAG/Civil Rights Kristen Clarke, not SG Elizabeth Prolager — at the DOJ had the guts to stand up and JUST SAY NO to his life-threatening nonsense. They all share the blame for this completely avoidable blot on our justice system and on their records (something progressives should remember when these irresponsible folks show up looking for jobs someday, as they inevitably will). What a disgrace! It didn’t have to be this way!

Why isn’t practice before the Immigration Courts and demonstrated commitment to human rights and due process a MINIMUM requirement for being the Attorney General or a top DOJ official in a Democratic Administration? No more “ivory tower” “tone deaf” appointments to key justice jobs from Democrats! End the deadly, wasteful nonsense! How many more innocents will be abused and systemically denied fundamental justice by EOIR before Biden and Harris pay attention to what’s happening “on their watch?”

And, folks, don’t forget the almost unfathomable “system costs” of having the knowledge, creativity, energy, and resources of these 106 organizations tied up in resisting and publicizing Garland’s stupidity and disdain by for equal justice and racial justice in America! They should be running EOIR, issuing great precedents on the BIA, solving problems in a practical, humane, legal manner as Immigration Judges, and redoing the broken and dysfunctional administrative system at EOIR.

The knowledge, personnel, creativity, and courage to establish a “model due process court system” are available “out here” — in spades. Instead, this avoidable human rights and racial injustice disaster is inflicted on our nation and some of the must vulnerable therein, by a tone-deaf Democratic Administration unwilling or unable to live up to their campaign promises! Disgusting! 🤮

🇺🇸Due Process Forever!

PWS

10-06-22

Related posts:

  1. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

⚖️THE GIBSON REPORT — 10-03-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — Biden’s Asylum Reform Dud! — After 4 Months, Badly Flawed Program Has Protected Only 24 Refugees, As Bias, Lack of Vision, & Anti-Asylum Culture Continue To Plague Biden Administration’s Human Rights “Non-Policies!”

 

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

PRACTICAL UPDATES

 

EOIR Updates FOIA Request Process

 

USCIS Extends Green Card Validity Extension to 24 Months for Green Card Renewals

 

Extension of Temporary Waiver of 60-Day Rule for Civil Surgeon Signatures on Form I-693

 

NEWS

 

Migrant deaths at the U.S.-Mexico border hit a record high, in part due to drownings

NPR: This has been the deadliest year ever for migrants trying to cross the U.S.-Mexico border. More than 800 migrants have died border-wide in the fiscal year that ends this week, according to internal government figures shared by a senior Border Patrol official.

 

Biden Is Hoping Small Changes Go a Long Way on Immigration

NYT: For now, the changes are tiny; only 99 people since the end of May have completed what are called asylum merits interviews with an asylum officer and been fully evaluated under the new rules. Of those, 24 have been granted asylum, while most of the rest have had their cases sent back to the immigration court system for an appeal.

 

Biden Maintains Current Cap on Refugee Entries

NYT: The decision to leave the cap at 125,000 was a contrast with the Trump administration, which severely restricted entry, but advocacy groups said migrants were still processed too slowly.

 

ICE Increases Use of Ankle Monitors and Smartphones to Monitor Immigrants

TRAC: The number of people in Immigration and Customs Enforcement’s Alternative to Detention (ATD) program has officially crossed 300,000 people for the first time, reaching 316,700 according to data released this week. See also The App ICE Forces You To Download; 70-hour weeks, taking selfies for Ice: life as a migrant trucker in California.

 

White House hosts meeting of 19 Western Hemisphere nations to begin coordinated efforts on migrants

CNN: National security adviser Jake Sullivan and homeland security adviser Liz Sherwood-Randall, among other White House officials, met with the representatives of 19 countries at the White House to iron out the implementation of that declaration and appoint a special coordinator for each country, according to the senior administration official.

 

Texas Jail Warden Charged With Killing Migrant Was Previously Accused Of Serious Abuses

Intercept: The Warden of what was once one of the nation’s most notorious immigration detention facilities was arrested this week after allegedly killing one migrant and wounding another in the desert of rural West Texas.

 

Immigrants Provide Huge Benefits To U.S. Taxpayers

Forbes: Compelling new research finds immigrants, including those with less than a high school degree, provide enormous fiscal benefits and a significant subsidy to U.S. taxpayers.

 

Border-crossing asylum-seekers hit six-year high in Canada

Reuters: In the first eight months of 2022, Royal Canadian Mounted Police intercepted 23,358 asylum-seekers crossing into the country at unofficial entry points, 13% more than all of 2017, when an influx of border-crossers at Roxham Road, near the Quebec-New York border, made international headlines.

 

‘Real People That We Care About Are Being Exploited’

Politico: Because cannabis remains illegal at a federal level, all employers — even those licensed at the state level — lack access to E-Verify, a government service that helps businesses verify immigration status. They also cannot use visa programs like H-2A and H-2B, which facilitate legal immigration of farmworkers in other industries… The Oregon legislature in the last 12 months set aside more than $31 million for law enforcement and advocacy groups working to combat illicit cannabis cultivation and help undocumented workers in the industry.

 

Come along as we connect the dots between climate, migration and the far-right

NPR: What is the connection between climate change, the movement of people around the globe, and the rise of xenophobic politicians? That’s the overarching question we’re hoping to answer with this reporting trip.

 

LITIGATION & AGENCY UPDATES

 

Justices To Review If 5th Circ. Fairly Rebuffed Removal Case

Law360: The U.S. Supreme Court on Monday agreed to review whether the Fifth Circuit was right to reject a Guatemalan woman’s deportation case on the grounds that she hadn’t gone through a final round of administrative appeals.

 

3rd Circ. Upholds Toss Of Illegal Immigrant’s Firearm Appeal

Law360: The Third Circuit has affirmed an Eastern District of Pennsylvania federal judge’s rejection of a Dominican Republic citizen’s appeal of his conviction on firearm and immigration law offenses — albeit for different reasons than the lower court.

 

DC Judge Won’t Force Consular Interviews For Visa Winners

Law360: The State Department will not have to schedule visa interviews for 12 winners of the 2022 Diversity Visa Lottery, after a D.C. federal judge found that the selectees didn’t show a high likelihood of proving that the Biden administration unlawfully delayed their interviews.

 

Judge Faults BIA For Nixing Visa Petition Over Prior Marriage

Law360: An Ohio federal judge on Wednesday said the U.S. Board of Immigration Appeals wrongly tossed a woman’s visa petition for her Ghanian husband over a previous “sham marriage,” saying whether the prior marriage was actually fake was open to dispute.

 

ACLU Says Feds Ignored FOIA For ICE Detainee Counsel Info

Law360: The American Civil Liberties Union on Wednesday hit the U.S. Department of Homeland Security with a Freedom of Information Act lawsuit in D.C. federal court, accusing the agency of improperly withholding access to records regarding U.S. Immigration and Customs Enforcement detainees’ access to counsel.

 

Feds want psychological tests for parents of separated kids

AP: The request comes in a lawsuit filed by migrants seeking compensation from the government after thousands of children were taken from parents in a policy maligned as inhumane by political and religious leaders around the world. Settlement talks with attorneys and the government broke down late last year.

 

Groups: Retaliation after migrants report detention center

AP: A companion complaint Wednesday to the office of civil rights at the U.S. Department of Homeland Security documents retaliation, including restrictions on access to legal representation and a falsified accusation of misconduct against an immigrant under the Prison Rape Elimination Act.

 

U.S. whistleblowers aiding migrant children feared retaliation, watchdog report says

Reuters: Two U.S. government employees said they experienced retaliation after they sounded alarms about the conditions at Fort Bliss, which has been used for emergency housing since March 2021, according to the report issued by the U.S. Health and Human Services (HHS) inspector general’s office.

 

Secretary Mayorkas Extends and Redesignates Temporary Protected Status for Burma

USCIS: The Department of Homeland Security (DHS) today announced an extension of Temporary Protected Status (TPS) for Burma for an additional 18 months, from Nov. 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning.

 

RESOURCES

 

 

EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Launch Dud
Despite disingenuous claims otherwise, the overhyped “launch” of asylum “reform” has been a “dud” — producing little for the Administration but even less for legitimate refugees and due process advocates caught up in the mind-boggling dysfunction of the failed Mayorkas/Garland asylum system.
PHOTO: NASA/Joel Kowsky
Public Realm

As border deaths continue to soar, nativist GOP Governors use humans as political pawns, and conditions in refugee sending countries deteriorate, the Biden Administration’s failed human rights/racial justice bureaucracy has no answers!

By attempting to replicate, remarkably even touting, the unrealistically high denial rates produced by the previous system — too often the result of badly flawed adjudications, poorly trained officers and judges, lack of effective representation, chronic systemic anti-asylum bias, and overly restrictive, anti-asylum precedents produced by a BIA loaded with anti-asylum zealots by the Trump Administration — Mayorkas and Garland have basically guaranteed continuing human rights abuses and defective adjudication of claims.

Truth is, even during the height of the overt anti-asylum program of the Trump Administration, approximately 70% of those whose claims were “referred” by the Asylum Office were eventually granted protection in Immigration Court. 

According to Human Rights First (“HRF”), an international human rights organization, in Fiscal Year 2021, 68% of asylum cases referred to immigration court by the AO were subsequently granted protection.[1] With nearly 70% of claims being granted in FY2021, this represents a clear and apparent waste of judicial resources.

https://www.immigrationissues.com/asylum-cases-referred-to-immigration-court-too-often/

And, this was with a legal system with overly restrictive precedents that clearly and improperly manipulated generous asylum laws AGAINST refugees, often hindered effective representation, and was “overseen” by many Immigration Judges who were hand-selected or retained by the Trump DOJ because they were “programmed to deny” asylum at outrageous rates. By granting only a pathetic 24 of 99 cases that actually were decided over four months, and “referring” the rest to Garland’s beyond dysfunctional “courts” (currently fighting an indescribably stupid all-out “war” with NGOs and pro bono attorneys), Mayorkas hasn’t come anywhere close to “leveraging” the system to locate, prioritize, timely grant many more legitimate cases, and drastically reduce the huge number of  unnecessary referrals to EOIR.

Rather than “cleaning house” at USCIS and EOIR, bringing in dynamic, qualified leaders, expert adjudicators and judges who can timely recognize the many legitimate claims, working with NGOs and pro bono groups to get all asylum seekers represented, and utilizing the expert training resources that currently exist outside Government, Mayorkas and Garland are perpetrating the same anti-asylum myths spewed out by Miller, Trump, and company! Essentially, instead of fixing the fatal flaws in the current system, the Biden Administration has chosen to institutionalize and expedite them! That’s insane!

The Biden Administration’s failure to do the butt-kicking, bold, thoughtful work necessary to establish robust, timely, efficient, refugee and asylum systems is dragging down our legal system, promoting racial injustice, perpetrating xenophobic myths, advancing “worst practices,” harming, sometimes killing, legitimate refugees fleeing repressive regimes, and denying American communities legal residents who could be using their skills to help build a stronger economy and a better future for America.

With thousands of asylum seekers from countries where persecution is well-documented being “orbited” by nativist GOP Governors, the Biden Administration was presented with a golden opportunity to work with NGOs, states, and local governments to coordinate resettlement, get them competently represented, and grant asylum in a fair and timely manner, thus demonstrating how an improved asylum system could work with proper staffing, attitudes, and legal guidance. Instead, the Administration has chosen to waste time on a “thudding dud” of a pilot that shows a stunning lack of leadership, courage, imagination, initiative, humanity, and respect for the rule of law!

🇺🇸 Due Process Forever!

PWS

10-05-22

Related posts:

  1. 🏴‍☠️☠️⚰️🆘GARLAND, MAYORKAS FAIL TO CORRECT GROSS ABUSES OF DUE PROCESS CAUSED BY MPP SYSTEM!  — Reopening All Of The Unconstitutionally Denied MPP Cases Should Be A “No Brainer” For Competent Officials & “Real” Judges! — Tell Judge Garland His Unconstitutional & Abusive Immigration Courts Can’t Wait To Be Fixed! — Lives Are Being Lost & Suffering Continues While He Diddles!
  2. BIDEN PLAN TO REFORM ASYLUM SYSTEM @ THE BORDER MAKES SENSE, BUT ONLY IF CORRECTLY IMPLEMENTED WITH THE RIGHT PERSONNEL — The Devil 👿 Is In The Details & Major Progressive Judicial Reforms @ EOIR ⚖️ Are A Prerequisite! — “Early Returns” On Actually Solving Immigration/Human Rights/Due Process Problems From “Team Biden” Not Encouraging!☹️
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🗽⚖️🇺🇸LEE GELERNT @ ACLU SAYS BIDEN ADMINISTRATION “cannot farm out the asylum system.” Yet, That Appears To Be Largely What They Are Doing Under New, Previously Unpublicized Program!

🤮 GARLAND’S EOIR HITS ANOTHER LOW! — Local Immigration Judges Barred From Participating In CLE Event! — For No Particular Reason! — The Round Table 🚀 ⚔️ Again Steps Into The Breach Caused By EOIR’s Failure!

By Paul Wickham Schmidt

Courtside Exclusive

Oct. 4, 2022

Immigration Judges as Galley Slaves
Garland’s bureaucratic minions keep close watch over their “captive” Immigration Judges.
“Galley Slaves”
Public Realm

As one of my esteemed colleagues says, “You can’t make this stuff up!”

I got this message from one of my Round Table colleagues involved in planning in a well-respected CLE event where local Immigration Judges had been invited to participate. “Things [for local IJ’s participation in CLE conference] were going pretty smoothly until EOIR Ethics came back with a NO. NO, the Judges cannot participate, and NO we’re not going to tell you why.”

One Round Table member noted: “As [Hon. “Sir”] Jeff [Chase] has said, our main legacy will be to educate the next generation of immigration lawyers.” 

“EOIR in Exile” (“a/k/a “The Round Table”) appears to be “the only game in town” when it comes to educating practitioners about what really happens in Immigration Court. 

Under Garland, EOIR inflicts unprofessional and humiliating treatment not only on the parties and lawyers appearing it, but also on its own judges!

Way back in the “good ol’ days @ EOIR,” Immigration Judges were actually allowed, even occasionally encouraged, to participate in CLE and other educational events. Of course, advance permission, at several levels, extensive disclaimers, and an occasional dose of censorship (had to stick to the “party line” – no criticism of EOIR) were part of the equation. That was enough to discourage a number of my judicial colleagues from engaging in public speaking. But, I was one of those who accepted as many invitations as possible.

I remember being on a panel with a U.S. District Judge. I delivered my “standard elaborate disclaimer” — basically providing “plausible deniability” for my remarks for everyone in the universe. Then, the USDJ got up and said something like this: “I asked nobody’s permission to be here today, although I did notify the Chief Judge of my whereabouts as a matter of professional courtesy.” That summed up the difference between “independent” and “captive” judges, and why an independent Article I Immigration Court is long, long overdue. But, in the meantime, there is no excuse for the ongoing and worsening disorder and dysfunction in Garland’s “courts!“

🇺🇸 Due Process Forever!

PWS

10-03-22

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😰ASYLUM: “PROGRAMMED FOR FAILURE” — “Refugee Roulette Three” (“RR3”) Confirm What Many Of Us Said Right Off The Bat About Biden Administration’s Tragically Botched Stab At Asylum Reform!

The “Notorious RR3:”

Professor Philip G. Schrag
Professor Philip G. Schrag
Georgetown Law
Co-Director, CALS Asylum Clinic
Professor Andrew Schoenholtz
Professor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies
PHOTO: GeorgetownLaw
Professor Jaya Ramji-Nogales
Professor Jaya Ramji-Nogales, Associate Dean for Academic Affairs
I. Herman Stern Research Professor
Temple Law
PHOTO: Temple Law

 

Here’s the abstract of the latest “practical scholarship” from the RR3:  Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogles, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,” which will appear in the Howard Law Journal:

The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem

Howard Law Journal, Vol. 66, No. 3, 2023

59 Pages Posted:

Philip G. Schrag

Georgetown University Law Center

Jaya Ramji-Nogales

Temple University – James E. Beasley School of Law

Andrew I. Schoenholtz

Georgetown University Law Center

Date Written: September 29, 2022

Abstract

In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.

This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.

Keywords: Asylum, Asylum adjudication, Asylum process, Expedited removal, Immigration, Legal ethics, Due process, Administrative law

JEL Classification: K39

Suggested Citation:

Schrag, Philip G. and Ramji-Nogales, Jaya and Schoenholtz, Andrew I., The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem (September 29, 2022). Howard Law Journal, Vol. 66, No. 3, 2023, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233655

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

Four Horsemen
New regulations pasted on old anti-asylum, anti-lawyer, anti-due-process attitudes and relying on an ever more dysfunctional EOIR, now at war with the asylum bar, won’t cut it! 
Albrecht Dürer, Public domain, via Wikimedia Commons

You can download the complete article from SSRN at the above link. 

Expect the Biden Administration to “blow off” the suggestions for improvement at the end of the article. They seem to glory in “tuning out” the views of practical experts who know how to fix the broken asylum adjudication system. 

As I predicted when these regulations first came out, they were “programmed for failure.”

https://immigrationcourtside.com/2022/06/06/⚖%EF%B8%8F🗽-human-rights-first-files-public-comments-pointing-out-due-process-eroding-flaws-in-biden-administrations-new-asylum-regulations/

Due-process-denying, representation-killing, arbitrary time limits imposed from above have been tried by Administration after Administration. They have always failed and will continue to do so. So, why are they a key part of the Administration’s so-called “reforms?”

Rather than addressing the representation crisis in a rational, cooperative manner, the Biden Administration’s EOIR farce has driven a huge wedge between the clueless policy makers who operate in the “twilight zone” and the NGO, pro bono, and low bono legal community that they need to succeed on immigration, human rights, and racial justice. See, e.g., https://immigrationcourtside.com/2022/09/30/%f0%9f%86%98-sos-from-round-tables-%f0%9f%9b%a1-%e2%9a%94%ef%b8%8f-judge-sue-roy-complete-due-rocess-meltdown-eoir-newark-as-garlands-leadership-continues-to-fail-%e2%98%a0/

Compare the article’s discussion of the importance of representation and the practical and ethical problems caused by the new regulations with the reality of the “nutsos” ways EOIR is mis-treating attorneys currently trying to practice before the Immigration Courts!

Additionally, the unwarranted, yet largely self-fulfilling assumption by the Biden Administration that only 15% of asylum applications would be granted at the “Asylum Office stage” show why this program was designed to fail by the wrong officials. For the system to meaningfully address the Immigration Court asylum backlog, the grant rate would have to be multiples of that — probably at least 50%.

That’s a realistic projection, given the well-documented, atrocious human rights conditions in most “sending countries” and the current artificial limitations on grants imposed by bad precedents and flawed, biased, or incompetent adjudications. When I was at the Arlington Immigration Court from 2003-16, a significant majority of the “referrals” from the Asylum Office were granted asylum, withholding of removal, or CAT protection, often with concurrence or only token opposition by ICE. That suggests that there is a huge unrealized potential for many more timely asylum grants at the Asylum Office. But, success will never be achieved with the current “anti-asylum, afraid to correctly and fairly implement refugee law gang” in charge — committed to retaining the bad attitudes and repeating the mistakes of the past!

Hanging over the whole disaster is the “uncomfortable truth” that I’ve been shouting:

  • The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.

  • There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.

  • There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.

  • Detention continues to be misused as a “deterrent” to legal claims and “punishment” for asserting  them. 

  • Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border. 

  • Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.

Indeed, this entire “reform effort” is essentially “upside down.” It’s a “designed to fail” attempt to avoid the broken and malfunctioning Immigration Court system without dealing with the REAL problem: EOIR!

Without the necessary progressive personnel and structural reforms at Garland’s EOIR (“clean house” of unqualified, under-qualified, or misplaced administrators and judges from past Administrations), the cultural changes (“out with the anti-asylum, anti-immigrant, racially challenged, too often misogynistic, EOIR culture”) it would bring, and most of all, the substantive changes to align asylum law with due process, best practices, and the generous interpretations that were foreshadowed by the Refugee Act of 1`980 but have been intentionally suppressed by politicos of both parties, there will be neither justice nor stability in our asylum and immigration systems, nor will there be equal justice for all, including racial justice, in America! 

Even my esteemed “RR3” friends understate the debilitating effects of the ever-worsening dysfunction at EOIR and Garland’s failure of leadership on due process and human rights!

Perhaps the most telling statement in their article is this: “Asylum officers are more highly trained in asylum adjudication than immigration judges . . . .”  Why, on earth, would that be? 

Why isn’t the BIA led and comprised of internationally-respected asylum experts like Schrag, Schoenholtz, Ramji-Nogales, and others like them? Why aren’t all Immigration Judges drawn from the ranks of universally-respected “practical scholars” in asylum and human rights?  Plenty of them are out here! Why aren’t they on the bench? Why is the Biden Administration running a “D-Team Judiciary” at EOIR rather than “the world’s best administrative tribunals, guaranteeing fairness and due process for all” as EOIR was once envisioned? What’s the excuse for lousy training at EOIR when top-flight “modulated” asylum training is available from expert sources like Professor Michele Pistone’s innovative VIISTA Villanova program? What’s the excuse for the colossal EOIR failure that threatens lives and our democracy on a daily basis? Why aren’t alarm bells going off at the White House about Garland’s failed stewardship at EOIR?

Reforming the asylum system, starting with EOIR, could also potentially have big societal and economic benefits for America. Asylees gain legal status, can work, get in line for green cards, eventually become citizens, and realize their full potential as productive members of our society. Not incidentally, they also become regular taxpayers and can help bolster essential enterprises and infrastructure improvements.

For example, just yesterday the Portland (ME) Press Herald featured an article about the critical, chronic shortage of workers in Maine. https://www.pressherald.com/2022/10/02/how-can-maine-solve-its-workforce-crisis/ Why isn’t the Biden Administration working with Maine authorities, NGOs, and economic development groups to “fast track” asylum approvals for those who might be persuaded to resettle in Maine to take advantage of these economic opportunities, for everyone’s benefit? Mainers also are suffering from a shortage of affordable housing. I’ll bet that with a little “seed money,” there are enterprising, skilled groups of potential asylees who could help build and maintain affordable housing for communities in need, in Maine and elsewhere in the U.S. Why are they instead “rotting at the border” or being aimlessly “orbited” around America by nativist GOP governors trying to score political points with their White Nationalist base?

By adopting the nativists’ dehumanizing mis-characterization of asylum seekers as a “problem” to be measured in “numbers,” deterred, and held at bay, the Administration is missing a golden opportunity to achieve some much-needed “win-wins.” Why run bone-headed “built to fail, haste makes waste” asylum pilot programs in a few cities rather than trying things that might work to everyone’s advantage, as I have described above?

At a time when many in America are finally learning the truth about our disgraceful failure to offer refuge to Jews during the period leading up to the Holocaust from the Ken Burns documentary, we (our at least some Americans) appear to be committed to making the same mistakes again. We should not undervalue the lives and contributions of refugees because of systemic or structural boas against certain groups!

Claiming to “reform” the U.S. refugee and asylum system without dealing with the ongoing, worsening, disasterous dysfunction at EOIR is a fool’s errand. The way to make the system work more efficiently is to grant the large number of deserving asylum cases in a timely, practical, manner driven by due process, best practices, and best interpretations of asylum law. Unless and until those in charge act on this truth, the awful mess at EOIR will continue to be an existential threat to democracy!

🇺🇸 Due Process Forever!

PWS

10-03-22

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