🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”

🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”

By Paul Wickham Schmidt

Courtside Exclusive

Dec. 6, 2022

I dissent. 

I was outraged when I read in this morning’s Washington Post about the horrible “Sinema/Tillis misnamed immigration compromise” (actually a “sellout”) being negotiated during the lame duck session of Congress. In short, that proposal apparently would trade long overdue protection for “Dreamers” for the rights and lives of refugees and asylum seekers. 

https://www.washingtonpost.com/politics/2022/12/05/congress-working-strike-last-minute-immigration-deals/

Incredibly, in the face of U.S. District Judge Emmet Sullivan’s findings that the intentional illegal use of Title 42 had resulted in countless clear violations of the legal rights of asylum seekers, subjecting them to a litany of horrors and abuses that he described as “dire harm,” these legislators would extend those abuses for an indefinite period! That’s notwithstanding evidence not only of the irreparable harm that Title 42 has caused, but also the rather obvious fact that once we “normalize” those abuses, they will never end. 

There will always be another fabricated reason for extending the Title 42 charade. Indeed, once we start mischaracterizing abuse as “law,” we can’t even call it “abuse” and hold the abusers accountable! That’s all part of the dehumanizing or “Dred Scottification” process! 

Additionally, in the place of a functioning working asylum and refugee system, the proposal would eventually substitute so called “processing centers” and “expedited procedures” to railroad asylum seekers out of the country without due process. And, it wouldn’t address the total dysfunction and denial of due process in our Immigration “Courts” by enacting another long overdue provision:  the “Lofgren Article I Immigration court bill!” What a farce!

Let’s be clear about what’s happening here! The legal and human rights of refugees and asylum seekers are not “ours” to trade away for relief for another deserving group that has long been irrationally denied! “Processing centers” are a euphemism for “immigration prisons” — part of the “New American Gulag.” “Expedited processing” is a euphemism for “railroading.” Both detention and artificially expediting dockets have been proven to be ineffective and unjust, over and over. Yet, here we go again! 

My outrage turned to shock and dismay when I learned that some erstwhile defenders of due process, human rights, and racial justice for asylum seekers (incredibly) thought that this type of immoral compromise was a “good idea!” Not me!

Restrictionist/nativist Dems masquerading as “moderates” are a huge problem. They play right into the GOP’s hands. 

When committing crimes against humanity or giving away refugees’ rights becomes a “strategy,” “option,” or “bargaining chip,” we’re lost as a nation. And, that’s exactly where we’re heading with horrible, immoral proposals like this.

Human rights and due process are non-negotiable! And, I guarantee that extending Title 42, building additional Gulag (rather than making the existing legal asylum and refugee systems work), and railroading asylum seekers will empower smugglers and lead to further growth of our underground population. 

Human migration won’t be stopped by ineffective and immoral “deterrence.” And, although many hate the idea, refugees basically “self-select” and are driven by forces beyond our immediate control. 

Refugees are, by definition, folks who can’t return! So, there is no reason to believe that true refugees (of which there are many) are going to be “deterred.” They might be “incentivized” to seek refuge in particular, relatively safe, places; but, nobody seems interested in a “carrot” approach — even though the “stick approach” has failed and continues to do so!

Look at the folks who continue to die in vessels in the Mediterranean even though they are fully aware that they are unwanted and that the EU will stop at no cruelty to keep them out. 

And, examine the wealth of documentation that folks forced to “remain in Mexico” — and apply under what we know to be a corrupt and inadequate system — are systematically abused and exploited. 

This time, we’re not just “pushing the St. Louis out to sea.” We’re torpedoing her and watching the passengers drown. And Dems are a huge part of the problem!

Other (soon to be former) progressive Democrats might choose to “go along to get along” with heaping additional abuses on largely defenseless refugees and asylum seekers. But, not me! I dissent!

🇺🇸Due Process Forever!

PWS

11-06-22 

🤯🏴‍☠️🤡🤮👎🏽INCOMPETENCE WATCH: Lacking Integrity & Skills To Follow The Law, Tone-Deaf, Dangerous,  & Disingenuous Biden Immigration Officials Consider Additional Massive Violations Of Human Rights For Asylum Seekers! — ACLU & NDPA Ready To Resist Administration’s Latest Unwarranted Assaults on Human Rights, Common Sense, & Human Decency!

Stephen Miller Monster
Who would have thought that the Biden Administration would be dumb and treacherous enough to let this neo-Nazi xenophobe and refugee hater “own” human rights “policy” in a Dem Administration? But, it appears they have! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

https://www.nytimes.com/2022/12/01/us/politics/biden-immigration-asylum-restrictions.html

From Michael Shear & Eileen Sullivan the NY Times:

WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.

The plan is one of several being debated by President Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.

People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.

But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.

. . . .

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

Read the complete article at the link.

[U.S. District Judge Emmet ]Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”

What part of Judge Sullivan’s very clear ruling on their “crimes against humanity” and knowing violations of U.S. and international law doesn’t the “Biden Administration Clown Show” 🤡 understand? Just follow the asylum law and due process, already! If you can’t do that, resign and let folks who can do the job (of which there are plenty out here in the “real world”) take over and do the job you have been failing at for two years!

In any event, the talent is out here in the private/NGO sector and will resist this latest insult to humanity and degradation of the rule of law and due process that Administration officials are “pondering!” “Studying and deciding whether or not to violate the law (again)?” Sounds like a potential criminal conspiracy to me! 

In any event, expert litigators like Lee Gelernt of the ACLU and other NDPA superstars are prepared to “beat the Biden Administration’s brains (if any) out” in court again if they try to implement any more of their illegal and immoral immigration gimmicks!

“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Mr. Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”

The Chair of the Senate Foreign Relations committee was also “not on board” with the Biden Administration’s latest harebrained ideas on diminishing human rights that they have substituted for basic competence over the past two years of disasters, and unforgivable policy screw-ups on immigration, human rights, and racial justice issues:

“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”

I also have to wonder how Judge Sullivan will react when he learns how Biden Administration officials are using his “reluctantly granted” five weeks of delay in implementing his “cease and desist order.” Instead of, at long last, getting their collective tails in gear to finally put in place a competent legal system for re-establishing legal asylum at the southern border, these disgraceful petty bureaucrats and so-called “policy” officials have been scheming to evade the rule of law and commit yet more “crimes against humanity.”

The NDPA is not going to let them get away with it. Even if it means ripping apart the “so-called Democratic Coalition” going into the 2024 elections!

 

🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!

PWS

12-05-22

🦸🏻‍♀️🦸🏻🥇⚖️🗽 SATURDAY’S NDPA HEROES’ SPOTLIGHT 💡: Dalia Castillo-Granados & Yasmin Yavar Leverage Their Skills To Create “Children’s Immigration Law Academy” — Amanda Robert Reports For ABA Journal!

Amanda Robert
Amanda Robert
Legal Affairs Writer
ABA Journal

https://www.abajournal.com/web/article/meet-the-two-attorneys-behind-the-aba-childrens-immigration-law-academy?mibextid=Zxz2cZ

IMMIGRATION LAW

Meet the two Texas attorneys behind the Children’s Immigration Law Academy

BY AMANDA ROBERT

NOVEMBER 23, 2022, 1:24 PM CST

Dalia Castillo-Granados and Yasmin Yavar.
Dalia Castillo-Granados and Yasmin Yavar. So far this year, the Children’s Immigration Law Academy has responded to more than 300 legal technical assistance questions. It has coordinated five in-depth virtual trainings and hosted eight webinars that attracted more than 1,600 attendees.

Dalia Castillo-Granados had just begun her fellowship with the St. Frances Cabrini Center for Immigrant Legal Assistance, a program of Catholic Charities of the Archdiocese of Galveston-Houston, when she met Yasmin Yavar in 2008.

Like Castillo-Granados, Yavar focused a lot of her attention on special immigrant juvenile status cases as the pro bono coordinator of Kids in Need of Defense’s new office in Houston. Despite changes in the law that allowed more children to apply for this form of immigration relief—which gives those who have been abused, neglected or abandoned a pathway to lawful permanent residence in the United States—attorneys were just beginning to test the waters in this area.

After collaborating on a case, Castillo-Granados and Yavar stayed in touch and created their own support system.

“There was a very small community of attorneys, even nationwide, representing unaccompanied children,” says Castillo-Granados. “In Houston, Yasmin and I were trying to get into state court and educating judges about why we were there. We had each other on speed dial, calling to talk over strategy and get suggestions and push the cases forward.”

Several years later, as an increasing number of unaccompanied children crossed the United States-Mexico border, Castillo-Granados and Yavar wanted to support the legal service providers and volunteer attorneys who were taking their cases. They drafted a plan for a legal resource center focused on children’s immigration law, and Yavar, who had worked with the ABA’s South Texas Pro Bono Asylum Representation Project in Harlingen, Texas, shared it with Commission on Immigration Director Meredith Linsky.

At the time, Linsky met regularly with the ABA Working Group on Unaccompanied Minor Immigrants. Its members liked the idea, and in September 2015, Linsky helped Castillo-Granados and Yavar launch the Children’s Immigration Law Academy.

“We decided to do exactly what we did for each other back when we were starting, but for everyone else,” says Castillo-Granados, who serves as CILA’s director.

. . . .

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

Read Amanda’s full article at the link.

Here’s an interesting contrast in problem-solving, creative thinking, dynamic leadership, and effectively using resources. Between 2008, when they met, and 2021, Dalia and Yasmin experienced an approximately 15X growth in the number of unaccompanied children, from 8,000 to 120,000. Faced with this stressful situation and a U.S. Government that under Administrations of both parties has displayed a rather callous indifference to child welfare, it would have been easy to give up and take their talents to another area of law!

Because they worked for an NGO, the couldn’t demand more resources or claim that drastic reductions in children’s rights, harsher enforcement, or “deterrence” were the “only solutions.” Interestingly, these were exactly the type of “rote, alarmist, reactionary reactions” that the Obama Administration had and that the Trump Administration tried to “implement” without the benefit of legislation.

Dalia and Yasmin viewed the problem as challenging, yet solvable, came up with a plan, and sold it to other members of the legal community — on its merits, not its “scare value.” They were able to “leverage” their experience, skills, and dynamic leadership to pool resources, create teamwork, and “teach and inspire others to help those in need.” 

They actually expanded, improved quality, and increased efficiency, thus multiplying rather than diluting their effectiveness. The also relied largely on existing tools and frameworks, but “leveraged” them in a creative and more efficient manner.

I submit that this is the exact opposite of how the broken bureaucracies at DHS, DOJ, and ORR have reacted to most immigration issues. Given lots of personnel, considerable resources, a workable, if not “perfect,” legal framework, and ample flexibility to redirect and repurpose wasted or misused resources, the last three Administrations have fallen “flat on their overstuffed and moribund bureaucratic faces.” 

With billions in taxpayer dollars, thousands of employees, and a legal framework that actually provides plenty of useful options, the USG has underachieved, to put it charitably. It has fallen back on wasteful, disruptive, and inefficient “proven to fail” deterrence “gimmicks;” ludicrous rhetoric; mythical threats; aimless reshuffling and churning of existing workload; bolloxed priorities; victim shaming and blaming; cruelty; and most disturbingly, massive scofflaw actions, crackpot proposals, and blatant curtailment of important human and legal rights.

To make matters worse, at least the Biden Administration has had access to what is probably the greatest “talent pool” of human rights, immigration, and child welfare experts on the face of the earth — almost all of it in the private/NGO/advocacy/academic sectors! Yet, they have resisted sound expert advice and creative solutions, while largely passing over available dynamic and inspiring leadership to overstuff their bloated immigration bureaucracy largely with a mixture of Trump holdovers, Obama retreads, and lesser lights. 

Obviously, talented NDPA superstars like Dalia and Yasmin are the wave of our future — not just in immigration and human rights, but in government, politics, our legal system, and American society! The issue is how we can force unwilling, “stuck in reverse” Dem Administrations to grow some backbone, enforce the values they espouse during elections, “clean house” in the bureaucracy and the ranks of ineffective, often clueless, politicos, and “repopulate and reform” the USG immigration bureaucracy and the beyond dysfunctional Immigration Courts with stars like Dalia and Yasmin. That is, courageous, visionary, experts who can actually solve problems rather than creating new ones and blaming the victims and those striving to hep them! 

Many thanks to Roberto Blum, Esquire, of Houston Texas for sending this article my way. Roberto says “they are the real heroes!” I concur, my friend, 100%!

🇺🇸 Due Process Forever!

PWS

12-03-22

  

🤯☠️LARGELY OVERLOOKED “NUGGET” IN TRAC’S LATEST ASYLUM “DATA DUMP” SHOWS SCOPE OF BIDEN ADMINISTRATION’S FAILURE TO BRING DUE PROCESS, PROFESSIONAL EXPERTISE, VISION TO BROKEN ASYLUM SYSTEM!

Trump Dumping Asylum Seekers in Hondiras
Despite two years of blather and broken promises, the Biden Administration’s approach to asylum at the border hasn’t advanced much over Trump’s. That’s a shame, because the tools and expertise to fix the system are available, yet largely ignored by the Administration. It might come to a head on Dec. 22.
Artist: Monte Wolverton
Reproduced under license

 

 

https://trac.syr.edu/whatsnew/email.221129.html

As experts predicted, the Biden Administration’s poorly-conceived and ineptly implemented “expedited asylum dockets” have sharply diminished favorable outcomes and due process for asylum seekers in a broken system already stacked against them. This preventable disaster is particularly acute for the too many unrepresented applicants who have little chance of relief in a system designed to reduce them to dehumanized denial statistics.

But, the real “sleeper” here is that over three quarters of the cases “referred” by the Asylum Office are GRANTED by the Immigration Courts. This shows a gross “over-referral” of cases to the Immigration Courts that could and should be expeditiously granted at the Asylum Office. The Administration’s regulation change to give Asylum Officers more authority to grant asylum at the first instance has not had the positive effects it should have.

Of course, the Administration’s unforgivable failure to “leverage” asylum grants for recently arrived refugees cripples their border response and creates fodder for GOP White Nationalist xenophobes. It builds unnecessary backlogs and promotes “aimless docket reshuffling” in Garland’s disgracefully dysfunctional and hopelessly backlogged EOIR!

But, beyond that, this statistic also projects that a large part of EOIR’s largely self-inflicted “asylum backlog” consists of clearly grantable, represented “affirmative” asylum cases referred by the Asylum Office. Rather than working with the private bar to identify and prioritize these cases in an orderly, professional manner for expedited grants, Garland has done the exact opposite! 

The problem of mass over-referral to EOIR by the Asylum Office is hardly “today’s news.” Indeed, in 2016, the year I retired from the bench, 83% of the “affirmative” referrals by the Asylum Office were GRANTED in Immigration Court! https://www.statista.com/statistics/234398/affirmative-asylum-case-grant-rate-by-us-immigration-courts/ And, that was with a BIA setting precedents that were generally, and quite incorrectly, unfavorable to asylum seekers. Of course the latter problem has also gotten worse in the intervening years. 

As I have pointed out before, despite two years to reform and improve the asylum system at both DHS and EOIR, the Biden Administration appears woefully unprepared to reinstitute the rule of law for asylum seekers on December 22 in a manner that is fair, efficient, reasonable, and humane. Failure to solve the long-festering problem of under-granting asylum and over-referring cases to EOIR is just part of the overall ineptitude, lack of dynamic leadership, absence of vision, and, frankly, moral vapidity of the Biden Administration on human rights and racial justice. 

Failure to timely and competently grant asylum at the first instance is a major driver of disorder and backlogs at both USCIS and EOIR. That’s basically “Good Government 101,” apparently not required to work on immigration in this Administration. 

The process requires close coordination and cooperation with NGOs and the pro bono bar for representation (essential for due process), quick identification and granting of strong cases, and orderly resettlement (in place of the random bussing by GOP grandstanding governors curiously empowered by the Biden Administration’s lack of leadership).

But, if there is a plan by the Administration to involve the private sector in a positive manner, it’s certainly a secret. That’s tragic, as the imbalance in experience, expertise, and competence between the private bar, where it resides, and the Administration, where it doesn’t, has reached incomprehensible levels!

I always hope for the best, even when it’s against the odds. But, if disaster and massive human rights violations unfold on and after Dec. 22, expect the Biden Administration, like Trump, to blame everybody but themselves.

The job of creating order out of disorder is likely to fall primarily on NGOs and advocates at or near the border. As always, the first priority is saving as many refugee lives as possible. But, the next priority is to hold the Biden Administration accountable and not let them shift the blame for their self-created disorder at the border and the predictable, yet avoidable, mess they appear determined to create!

🇺🇸Due Process Forever!

PWS

12-02-22

🇺🇸⚖️👍🏼 FINALLY: 11TH CIR. SHUTS DOWN ABSURDIST TRUMP JUDGE “LOOSE” CANNON!

https://www.washingtonpost.com/national-security/2022/12/01/trump-cannon-special-master-rejected/

. . . .

But special master appointments are rare, and judges at the U.S. Court of Appeals for the 11th Circuit expressed concern at oral arguments that Cannon’s decision set a troubling precedent: allowing the target of a search warrant to go into court and request a special master that could interfere with an executive branch investigation before an indictment is ever issued.

The judges did not back down from that stance in their written opinion Thursday, saying they could not issue an order that would “allow any subject of a search warrant to block government investigations after the execution of the warrant.”

“Nor can we write a rule that allows only former presidents to do so,” the Thursday opinion read. “Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.

. . . .

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

I imagine every criminal defendant in America would be delighted to have the benefit of “Judge Loose’s” incredible ruling that the subject of a criminal investigation, basically caught “red handed” with contraband after a lawfully executed search warrant, could block an ongoing  criminal investigation.

It’s notable that all three 11th Circuit panel judges were GOP appointees, two of them Trump appointees like Judge “Loose!” Unlike “Loose,” they actually take the Constitution and their oaths of office to uphold it seriously, at least in this case!

The saga of Trump’s frivolous abuse of our justice system isn’t yet over. He can request review from the Supremes. However, since he lost to Biden, the Supremes’ GOP majority has shown less willingness to bail out the insurrectionist ex-Prez in his dilatory personal battles to avoid accountability for his actions!

🇺🇸 Due Process Forever!

PWS

12-01-22

 

🇺🇸🗽⚖️ MORE CA 2 REMANDS: NDPA STARS 🌟 MOSELEY & GETACHEW LATEST TO BEST GARLAND’S MESSED UP “COURTS” — BIA Applies Wrong Standards In Yet Another CAT Case, Blows “Changed Circumstance” In Asylum Case, Overlooks & Misconstrues Evidence, Omits Analysis In Unseemly “Race To Wrongly Deny” Life Or Death Cases! — Garland Shrugs Off Legal Debacle Unfolding Every Day on His Watch!

 

The Hook
The Hook
Managers yank highly-paid big league pitchers who aren’t getting the job done! When will Garland finally “get out the hook” for his deadly underperforming BIA?
PHOTO CREDIT: © BrokenSphere / Wikimedia Commons

 

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-on-cat-standard-of-review-omorodion-v-garland

CA2 on CAT, Standard of Review: Omorodion v. Garland

Omorodion v. Garland (unpub.)

“The IJ granted Omorodion’s application for deferral of removal under the CAT and, after an initial remand by the BIA, reaffirmed that decision. In July 2018 the BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed, concluding that Omorodion did not show that she would suffer torture or that public officials would acquiesce in her torture. … First, Omorodion argues that the BIA mischaracterized and ignored key evidence. We agree. … The BIA also erred by failing to apply the clear error standard in its review of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with the acquiescence of the Nigerian government.” … The BIA erred as a matter of law when it overlooked such evidence and rejected the IJ’s predictive finding. To summarize, we grant the petition and remand because the BIA overlooked material components of the record and misconstrued others. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies clear error in the IJ’s factfinding based on the totality of the record. If any vacatur is not due to clear error, the BIA must otherwise “provide sufficient explanation to permit proper appellate review” of its decision. Hui Lin Huang, 3 677 F.3d at 137. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”

[Hats off to Tom Moseley!]

Tom Moseley
Thomas Moseley ESQUIRE
NPPA Icon
Newark, NJ

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-on-cat-standard-of-review-omorodion-v-garland

CA2 on Asylum, Changed Circumstances: Perez Nagahama v. Garland

Perez Nagahama v. Garland (unpub.)

“We remand for the agency to conduct the required factfinding and analysis regarding the reasonableness of Perez Nagahama’s delay in filing her asylum claim following her changed circumstances. An asylum applicant must file an asylum “application . . . within 1 year after the date of . . . arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is an exception for “changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Where there is such a change, the applicant must file an application “within a reasonable period given those ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed that Perez Nagahama’s circumstances changed materially when she began living as openly gay in April 2015. What is a reasonable period for filing after a changed circumstance is a fact-specific inquiry: IJs should make specific “findings of fact with respect to the particular circumstances involved in the delay of the respondents’ applications” to determine the reasonableness of the delay. Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193, 195–96 (B.I.A. 2010). … Perez Nagahama has raised a reviewable question of law that the agency failed to apply the proper standard because it did not consider her specific circumstances before concluding that her delay was unreasonable. … The agency did not conduct the required factfinding and analysis. … Here, the IJ did not make findings of facts regarding the reasonableness of the delay in light of the attendant circumstances. The BIA should have remanded to the IJ to consider whether the delay was reasonable. … Instead, the BIA made its own factual determinations that Perez Nagahama beginning to live as openly gay did not make her delay reasonable and that the other facts she pointed to were not related to this underlying changed circumstance. Compounding this issue, the BIA gave no reasoning for its conclusion that the relevant circumstance made her delay unreasonable.”

[Hats off to Genet Getachew!]

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

Clearly, the BIA’s performance in this and other recent CA remands is far below even the “good enough for government work” mantra that prevails at Garland’s dysfunctional EOIR! Why does Garland think “NOT good enough for government work” is “good  enough for due process for ‘persons’ who happen to be foreign nationals” with the their lives at stake in his “smashed to smithereens” piece of our “justice” system? 

The only way Garland gets to where his EOIR is today is by “Dred Scottification:” That is, intentionally treating “persons” (“humans”) in his Immigration Courts as “non –persons” under the Due Process Clause of our Constitution. If that sounds like a “Stephen Miller wet dream”🤮 (grotesque as that image undoubtedly is), it’s because that’s exactly what it is! How does a Dem Administration get away with this affront to due process, equal protection, and racial justice in America?

Kind of makes me wonder what they taught at Harvard Law (Garland’s alma mater) and other so-called “elite” law schools. I daresay that virtually all law students I have encountered in teaching immigration and refugee law for a number of years at Georgetown Law would have done better than the BIA had these cases been on my final exams. 

The BIA’s inability to fairly and competently apply basic legal standards, honestly and professionally evaluate evidence of record, give asylum applicants the “benefit of the doubt” to which they are entitled under international standards, provide positive practical expert guidance on granting relief, eliminate “asylum free zones,” promote uniform outcomes, and develop and enforce “best judicial practices” is a major factor in the incredible two million case backlog that Garland has built in Immigration Court! His failure to take corrective action by replacing the BIA with competent, expert, unbiased appellate judges is a major breach of both ethical standards and his oath of office! How does he get away with it?

Thousands of asylum applicants at our border are being illegally returned to danger! Individuals with valid claims to be in the United States are routinely being denied relief for specious reasons and clear misapplications of basic legal standards in his “courts” —  powerful indicators of systemic bias that should have been forcefully addressed by Garland on “day one” of his tenure at EOIR, as experts recommended.

Garland’s victims’ lives are irrevocably ruined or even ended! Misery is inflicted on their family, loved ones, and American communities! Dedicated lawyers working overtime to save lives are mistreated by Garland’s courts and traumatized by sharing the horrible consequences to their clients of systemic inferior judging! America is denied legal immigrants we need! 

Our Federal justice system is overwhelmed with wasteful and never-ending litigation of immigration cases that should have been timely granted in the first instance and bad policies that never should have seen the light of day. In this respect, note that the IJ actually got it right in Omorodion! Then, in attempting to accommodate DHS and achieve an illegal removal, the BIA completely botched it on appeal! Even where justice prevails at the “retail” level, the BIA screws it up!

Yet Garland just shows up for work and draws his paycheck as if this were the way “justice” is supposed to work in America and fixing it is “below his pay level!” Gimmie a break!

Meanwhile, back at the ranch, many congrats and much appreciation to NDPA stalwarts Tom Moseley and Genet Getachew!

I am particularly honored to recognize the litigation greatness of my long-time friend, former INS colleague, and NDPA litigation icon 👍🏼🗽 Tom Moseley. He honed his complex litigation skills as an INS Special Assistant U.S. Attorney for the Southern District of NY during my tenure as Deputy General Counsel and Acting General Counsel at the “Legacy INS.” 

Since leaving INS decades ago, Tom has been a tower of “practical impact litigation” and “Life-Saving 101” in New Jersey and beyond. Thanks for all you do, my friend!

🇺🇸 Due Process Forever!

PWS

12-01-22

☠️🤮🤯 “DUH OF THE DAY” — BIDEN PROMISED TO SHUT DOWN THE PRIVATELY RUN DHS “NEW AMERICAN GULAG” — SPOILER ALERT: It’s Bigger & More Deadly Than Ever!

Gulag
Inside the Gulag
In the fine tradition of an earlier “Uncle Joe,” like US Presidents before him, Joe Biden finds it useful to have a deadly “due process free zone” to stash “non-persons” and “break their will to resist!” — PHOTO: Public Realm

 

From the WashPost Editorial Board:

https://www.washingtonpost.com/opinions/2022/11/29/migrant-prisons-biden-private/

Opinion by the Editorial Board

November 29, 2022 at 12:50 p.m. ET

President Biden vowed in his 2020 campaign to shutter for-profit migrant detention facilities; he repeated the promise after taking office. It hasn’t happened. To the contrary: The administration, overwhelmed by the surge in unauthorized border crossings, now holds roughly 30,000 migrants in detention, about double the count it inherited from the Trump administration. Roughly 4 in 5 detainees are in private facilities overseen by Immigration and Customs Enforcement.

That’s a troubling development given ongoing reports of poor conditions and health care for migrant detainees, and evidence that the government has been less than aggressive in seeking remedies in the past. Officials say they are tightening oversight, yet problems persist. Even though the government has stopped housing migrants in some prisons with poor records, more needs to happen. And Mr. Biden’s original promise to close down for-profit migrant detention should still be the goal.

In fact, the president issued an executive order soon after entering office to close down private prisons used to house other federal inmates — who are by and large U.S. citizens. The rationale for closing them was the same as that for shifting away from private migrant prisons: the principle that incarcerating offenders is properly a government obligation, not an opportunity for profit.

If anything, the logic for ending private prisons for migrants is more compelling. Roughly 70 percent of migrant detainees have no criminal record; they face civil immigration proceedings, awaiting adjudication of their asylum and deportation cases. Many of the rest have been charged with relatively minor offenses, including traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University, which gathers immigration enforcement data. Only a modest number have committed serious crimes. In other words, few migrant detainees are dangerous.

. . . .

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

Read the complete editorial at the link.

Unfortunately, it’s no surprise to migrants and their advocates that Biden and Harris said one thing about human rights to get elected and did the opposite once in office. The list of broken promises and betrayals of fundamental legal and human values is long and enraging.

With yet more USCIS fee increases apparently in the offing — more money for less service and diminished quality — perhaps DHS should be required to reprogram money and resources from the “New American Gulag” to USCIS adjudications. Might also cut down on litigation and IG investigations, not to mention detainee deaths.

Like most of the Biden Administration’s self-inflicted immigration/human rights/racial justice failures, this isn’t “rocket science.” A Committee appointed by DHS Secretary Johnson during the Obama-Biden Administration recommended that private immigration detention be ended. That was more than six years ago. See, e.g.https://wp.me/p8eeJm-7j.

Additionally, you don’t have to be a lawyer or a deep thinker to grasp that conditions unsuitable for convicted felons shouldn’t be inflicted on so-called “civil detainees” most of whom are just awaiting justice from a system that consistently and illegally treats them as “less than human!”

🇺🇸Due Process Forever!

PWS

12-01-22

🤯JUST WHEN YOU THOUGHT BIDEN ADMINISTRATION IMMIGRATION POLICIES COULDN’T GET DUMBER, SURPRISE! — Administration Struggles To Cajole “Allies” Into Leading Armed Invasion Of Haiti To Save America From “Invasion” Of Black Refugees!🏴‍☠️— Naturally, US Would Remain On Sidelines While Others Do “Dirty Work!” 🤮

Dead Haitians
American poses with dead Haitian revolutionaries after being killed by US Marine machine gun fire – 10-11-1915.jpg. Past US armed invasions of Haiti to protect our interests haven’t done much to improve the lives of the Haitian people.
Public Realm

I’m a fool to do your dirty work

Oh yeah

I don’t wanna do your dirty work

No more

I’m a fool to do your dirty work

Oh yeah

— Dan, Steely, “Dirty Work” 

https://www.google.com/search?q=dirty+work+lyrics&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari

NY Times: As Haiti Unravels, U.S. Officials Push to Send in an Armed Foreign Force

https://lnkd.in/eg9VM88S

 

As Haiti Unravels, U.S. Officials Push to Send in an Armed Foreign Force

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

U.S. seeks to prompt armed invasion of Haiti by OTHER countries to protect US from Haitian refugees seeking freedom and a new life! What could possibly go wrong?

Nothing shakes up brave US security officials like some unarmed Black individuals in leaky boats risking their lives to “breathe free” and to contribute to the U.S. economy in the process!

Really! There must be about “two Democrats in the world” who think this crackpot scheme is a good idea. Unfortunately, they are employed by the Biden Administration and in charge of “immigration policy!”

Sorry, Casey, but I have to keep saying it: “Can’t anyone here play this game?” Apparently not!

Casey Stengel
“Casey Stengel might understand the Biden Administration’s immigration policies. The rest of us not so much.”
PHOTO: Rudi Reit
Creative Commons

🇺🇸Due Process Forever!

PWS

11-30-22

🇺🇸THE GIBSON REPORT — 11-29-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — HEADLINER: After Two Years Of Dithering & Ongoing Human Rights Abuses, Biden Administration Heading For Failure In Re-Instituting Rule Of Law For Legal Asylum Seekers @ S. Border, According To Many Experts!

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

pastedGraphic.png

 

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

 

Biden administration preps for a rocky end to Trump-era immigration rule 

Politico: Experts in the immigration field say they’re expecting a stressful and chaotic transition when a court-ordered deadline to end the Trump directive is hit, one that could drive a new rush to the border and intensify GOP criticism. See also States move to keep court from lifting Trump asylum policy.

 

U.S. talking to Mexico, other countries to facilitate return of Venezuelan migrants 

Reuters: The United States is in talks with Mexico and other countries to facilitate the return of Venezuelan migrants to their homeland, a senior U.S. official said in a call with reporters on Tuesday.

 

ICE Detains More Individuals 

TRAC: The South Texas Family Residential Center in Dilley, Texas, which currently houses single adults (mostly females) has more than doubled the number of individuals it is holding since September. ICE reports this facility run by CoreCivic now has the largest average daily population of detainees (1,562) in the country

 

Homeland Security chief could face impeachment in GOP-led House if he does not resign, Kevin McCarthy warns 

CBS: McCarthy also threatened to use “the power of the purse and the power of subpoena” to investigate and derail the Biden administration’s immigration and border policies, saying Republican-led committees would hold oversight hearings near the U.S.-Mexico border.

 

LITIGATION & AGENCY UPDATES

 

CA2 CAT Remand: Lopez De Velasquez V. Garland 

LexisNexis: “Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture.”

 

CA2 on CAT, Honduras: Garcia-Aranda v. Garland 

LexisNexis: “Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim.”

 

3rd Circ. Says Jargon, Other Flaws Didn’t Prejudice CAT Bid 

Law360: The Third Circuit has backed a decision denying a Dominican man’s bid for deportation relief based on his fear of being tortured, saying the procedural flaws he claimed tainted his proceedings — including the use of legal jargon and a videoconferencing glitch — did not prejudice him.

 

8th Circ. Finds Persecution Evidence Lacking In Asylum Bid 

Law360: An English-speaking Cameroonian lost her chance to stay in the U.S. after the Eighth Circuit ruled that she failed to provide enough evidence showing that military officers had attacked her for her presumed support of Anglophone separatists.

 

CA9 Appeal Waiver Remand: Phong v. Garland 

LexisNexis: “Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance.”

 

No Second Bite At Bond Needed For Detainee, 9th Circ. Says 

Law360: A divided Ninth Circuit on Monday ruled that the federal government was not constitutionally required to provide a Salvadoran immigrant a second bond hearing amid his prolonged detention during removal proceedings, while also bearing the burden to show he was a flight risk or danger to the community.

 

Immigrants, DHS settle case seeking activist targeting info 

AP: The U.S. Department of Homeland Security has agreed to pay a Vermont-based immigrant advocacy organization $74,000 in legal fees to settle a lawsuit seeking information about whether advocates were being targeted by immigration agents because of their political activism.

 

USCIS Extends and Expands Fee Exemptions and Expedited Processing for Afghan Nationals 

USCIS: Today, U.S. Citizenship and Immigration Services announced it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals.

 

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 

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

Folks, it’s about re-instituting the law and screening system for legal asylum seekers which was in effect, in one form or another, for four decades before being illegally abrogated by the Trump Administration’s abusive use of Title 42. Outrageously, after promising to do better during the 2020 election campaign, the Biden Administration has “gone along to get along” with inflicting massive human rights violations under the Title 42 facade until finally ordered to comply with the law by U.S. District Judge Emmet G. Sullivan last month.

One of Judge Sullivan’s well-supported findings was that the scofflaw actions by both Trump and Biden officials had resulted in knowingly and intentionally inflicting “dire harm” on legal asylum applicants:

Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”

Contrary to the “CYA BS” coming from Biden Administration officials, making the law work at the Southern Border requires neither currently unachievable “reform” legislation nor massive additions of personnel! It does, however, require better personnel, expert training, accountability, smarter use of resources, and enlightened, dynamic, courageous, principled, expert leadership currently glaringly lacking within the Biden Administration. 

The Administration’s much ballyhooed, yet poorly conceived, ineptly and inconsistently implemented, “revised asylum regulations” have also failed to “leverage” the potential for success, thus far producing only an anemic number of “first instance” asylum grants. This is far below the rate necessary for the process significantly to take pressure off the backlogged and dysfunctional Immigration Courts, one of the stated purposes of the regulations! Meanwhile, early indications are that Garland’s ill-advised regulatory time limits on certain arbitrarily-selected asylum applications have further diluted quality and just results for EOIR asylum decisions. That, folks, is in a system where disdain for both of these essential judicial traits is already rampant!

It’s not rocket science! It was well within the capability of the Biden Administration to establish a robust, functional asylum system had it acted with urgency and competency upon taking office in 2021:

  • Better Asylum Officers at USCIS and Immigration Judges at EOIR — well-qualified asylum experts with practical experience in the asylum system who will timely recognize and grant the many valid asylum claims in the first instance;
  • Cooperative agreements with NGOs and pro bono organizations to prescreen applications in an orderly manner and represent those who can establish a “credible fear;”
  • A new and improved BIA of qualified “practical scholars” in asylum law who will establish workable precedents and best practices that honestly reflect the generous approach to asylum required (but never carried out in practice or spirit) by the Supremes in Cardoza-Fonseca and the BIA itself in its long-ignored and consistently misapplied precedent in Mogharrabi;
  • An orderly refugee resettlement program administered under the auspices of the Feds for those granted asylum and for those whose claims can’t be expeditiously granted at the border and who therefore must present them in Immigration Court at some location away from the border.

The Biden Administration has nobody to blame but themselves for their massive legal, moral, and practical failures on the Southern Border! With House GOP nativist/restrictionists “sharpening their knives,” Mayorkas, Garland, Rice, and other Biden officials who have failed to restore the legal asylum system shouldn’t expect long-ignored and “affirmatively dissed” human rights experts and advocates to bail them out!

The massive abrogations of human rights, due process, the rule of law, common sense, and human decency that the GOP espouses — so-called enforcement and ineffective “deterrence” only approach — will NOT resolve the humanitarian issues with ongoing, often inevitable, refugee flows! 

But, the Biden Administration’s inept approach to human rights has played right into the hands of these GOP White Nationalist politicos. That’s an inconceivable human tragedy for our nation and for the many legal refugees we turn away without due process or fair consideration of their life-threatening plight! These are refugees — legal immigrants — who should be allowed to enter legally and help our economy and our nation with their presence.

If we want refugees to apply “away from the border,” we must establish robust, timely, realistic refugee programs at or near places like Haiti, Venezuela, and the Northern Triangle that are sending us refugees. In the Refugee Act of 1980, Congress actually gave the President extraordinary discretionary authority to establish refugee processing directly in the countries the refugees are fleeing. This was a significant expansion of the UN refugee definition which requires a refugee to be “outside” his or her country of nationality. Yet, no less than the Trump and Obama Administrations before, President Biden has failed to “leverage” this powerful potential tool for establishing orderly refugee processing beyond our borders!

Meanwhile, down on the actual border, a place that Biden, Harris, Mayorkas, Garland, Rice, and other “high level architects of failed asylum policies” seldom, if ever, deign to visit, life, such as it is, goes on with the usual abuses heaped on asylum seekers patiently waiting to be fairly processed. 

A rational observer might have thought that the Biden Administration would use the precious time before Dec. 22, 2022, reluctantly “gifted” to them by Judge Sullivan, to pre-screen potential asylum seekers already at ports of entry on the Mexican side. Those with credible fear and strong claims could be identified for orderly entries when legal ports of entry (finally) re-open on Dec. 22. Or, better yet, they could be “paroled” into the U.S. now and expeditiously granted asylum by Asylum Officers.

This would reduce the immediate pressure on the ports, eliminate unnecessary trips to backlogged Immigration Courts, and expedite these refugees’ legal status, work authorization, and transition to life in the U.S.

I have no idea what the Biden Administration has done with the time since Judge Sullivan “gifted” them a stay. The only noticeable actions have been more BS excuses, blame-shifting, and lowering expectations. 

But, in reality, by their indolent approach to humanitarian issues and the law, in the interim the Administration has consciously left the fate of long-suffering and already “direly-harmed” legal asylum seekers to the Mexican Government. According to a recent NBC News report, the Mexican Government forcibly “rousted” many awaiting processing at a squalid camp near the border and “orbited them’ to “who knows where.” https://www.nbcnews.com/now/video/mexican-authorities-evict-venezuelan-migrants-from-border-camps-155516485544

Judge Sullivan might want to take note of this in assessing how the Biden DOJ has used the “preparedness time” that he reluctantly granted them following his order.

🇺🇸 Due Process Forever!

PWS

11-29-22

⚖️ APTLY-CAPTIONED U.S. v. TEXAS WILL TEST SUPREMES’ WILLINGNESS TO STAND UP AGAINST TRUMP’S OUTLAW FEDERAL JUDGES & RACIST GOP STATE AGs!

Trump Judges
Trump Federal Judges Tilt Against Democracy
Republished under license

https://apple.news/AT659B9r2TJqCsmk0-8ONZw

A Trump judge seized control of ICE, and the Supreme Court will decide whether to stop him

Judge Drew Tipton’s order in United States v. Texas is completely lawless. Thus far, the Supreme Court has given him a pass.

By Ian Millhiser | November 27, 2022 8:00 am

In July, a Trump appointee to a federal court in Texas effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within US borders. Although Judge Drew Tipton’s opinion in United States v. Texas contains a simply astonishing array of legal and factual errors, the Supreme Court has thus far tolerated Tipton’s overreach and permitted his order to remain in effect.

Nearly five months later, the Supreme Court will give the Texas case a full hearing on Tuesday. And there’s a good chance that even this Court, where Republican appointees control two-thirds of the seats, will reverse Tipton’s decision — his opinion is that bad.

The case involves a memo that Secretary of Homeland Security Alejandro Mayorkas issued in September 2021, instructing ICE agents to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law.

A federal statute explicitly states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities,” and the department issued similar memos setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017.

Nevertheless, the Republican attorneys general of Texas and Louisiana asked Tipton to invalidate Mayorkas’s memo. And Tipton defied the statute permitting Mayorkas to set enforcement priorities — and a whole host of other, well-established legal principles — and declared Mayorkas’s enforcement priorities invalid. This is not the first time that Tipton relied on highly dubious legal reasoning to sabotage the Biden administration’s immigration policies.

. . . .

Even when the law offers no support for the GOP’s preferred policies, in other words, the Court permits Republicans to manipulate judicial procedures in order to get the results they want. The Texas attorney general’s office can handpick judges who they know will strike down Biden administration policies, and once those policies are declared invalid, the Supreme Court will play along with these partisan judges’ decisions for at least a year or so.

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

Once the GOP got the upper hand on the Federal Bench, the “traditional” conservative case for “judicial restraint” went straight down the tubes under an assault by righty ideologues eager to “do in” precedents, laws, and Executive policies that don’t fit their “out of the mainstream” political agenda, no matter how thinly reasoned or often counterfactual their “cover” might be.

And, as usual, Dems have been slow on the uptake about getting younger, staunch defenders of democracy and our Constitution on the bench to counteract the right-wing’s Article III takeover. 

As this article points out, the Supremes’ questionable “shadow docket” is manipulated by the Court’s righty majority improperly to favor GOP scofflaw tactics, even where they ultimately can’t concoct a legal basis to uphold them on the merits.

⚖️🗽👩🏻‍⚖️Better judges for a better America!

🇺🇸 Due Process Forever!

PWS

11-28-22

⚖️THE GIBSON REPORT — 11-21-22 — CompiledBy Elizabeth Gibson, Managing Attorney, NIJC — HEADLINERS: Garland’s Tardy Rebuke Of Sessions’s 2018 Wrong Precedent Limiting IJ Termination Authority Likely Too Little, Too Late To Save EOIR — As GOP House White Nationalist Absurdists Abandon Economy, Inflation To Push For More Crimes Against Humanity Directed At Black and Brown Folks @ S. Border, Administration’s Failure To Respect Human Rights, Restore Legal Asylum System, Leverage Refugee Processing Leaves Dems With “No Defense!”

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

pastedGraphic.png

 

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

 

USCIS: Recommendations for Paper Filings to Avoid Scanning Delays

 

NEWS

 

Biden Is Still Separating Immigrant Kids From Their Families

Texas Observer: But as the case of Felipe shows, immigration officials have continued to separate parents and children in violation of the policy. From the start of the new administration to August 2022—the latest month for which data has been published—U.S. authorities have reported at least 372 cases of family separation.

 

Judge orders end to Trump-era asylum restrictions at border

AP: Within hours, the Justice Department asked the judge to let the order take effect Dec. 21, giving it five weeks to prepare. Plaintiffs including the American Civil Liberties Union didn’t oppose the delay.

 

Democrats confront bleak odds for immigration deal before 2023

Politico: Party leaders are pushing hard for legislation aiding the undocumented population known as “Dreamers” before Republicans take the House. But GOP senators have little interest. See also House Judiciary GOP Highlights First Oversight Targets.

 

Quality vs Quantity: How Does Sitting on the Dedicated Docket Impact the Judging Process?

TRAC: The outcome for asylum seekers has long been influenced by the identity of the immigration judge assigned to hear their case. This continues to be true as documented by TRAC’s just released judge-by-judge report series, now updated through FY 2022. In Arlington, Virginia, judge denial rates ranged from 15 percent to 95 percent. In Boston, judge denial rates varied from 17 percent to 93.5 percent. In Chicago, they ranged from 16 percent to 90 percent, while in San Francisco one judge denied just 1 percent of the cases while another denied 95 percent.

 

ICE lifted its ban on family visits, but relatives still struggle to see loved ones

NPR: Individuals held in immigration detention were barred from visits with relatives and friends for more than two years during the pandemic — far longer than federal prisons. In May, ICE lifted the ban, but immigrant advocates and people in detention centers argue that social visits have not been fully nor consistently reinstated.

 

Second immigrant bus arrives in Philadelphia from Texas, sent by Gov. Greg Abbott

Philly Inquirer: A second bus carrying immigrants from Texas arrived in Philadelphia Monday morning, a twice-in-six-days sequel that propelled the city to offer fresh welcome to more weary, uncertain travelers from the border.

 

Cubans, Nicaraguans drive illegal border crossings higher

AP: Fewer Venezuelans came after the the Biden administration introduced new asylum restrictions on Oct. 12, but increasing arrivals from other countries more than offset that decline, according to figures released late Monday. See also Mexico steps up immigration controls in south; Cuba, U.S. to hold second round of migration talks in Havana.

 

Senate: Migrants subject to unnecessary medical procedures

AP: U.S. immigration authorities didn’t do enough to adequately vet or monitor a gynecologist in rural Georgia who performed unnecessary medical procedures on detained migrant women without their consent, according to results of a Senate investigation released Tuesday.

 

The Public Has Never Seen The U.S. Government Force-Feed Someone — Until Now

Intercept: According to ICE’s Performance-Based National Detention Standards, whenever there is a “calculated use of force,” staff are required to use a handheld camera to record the incident. The Intercept, with Kumar’s consent, requested the video through the Freedom of Information Act. After ICE refused to turn over the footage, The Intercept filed a lawsuit and ICE subsequently agreed to turn over the footage, but the agency redacted the faces and names of everyone who appears in it, aside from Kumar.

 

Ten years of hurt: how the Guardian reported Qatar’s World Cup working conditions

Guardian: A multi-country investigation by the Guardian finds at least 6,500 migrant workers from south Asia have died in Qatar in the 10 years since it was awarded the right to host the World Cup.

 

LITIGATION & AGENCY UPDATES

 

Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022)

AG: (1)  Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled. (2)  Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration  of  Appeals  may  consider  and,  where  appropriate,  grant  termination  or  dismissal  of  removal  proceedings  in  certain  types  of  limited  circumstances,  such  as  where  a  noncitizen  has  obtained  lawful  permanent  residence  after  being  placed  in  removal  proceedings,  where  the  pendency  of  removal  proceedings  causes  adverse  immigration consequences for a respondent who must travel abroad to obtain a visa, or where  termination  is  necessary  for  the  respondent  to  be  eligible  to  seek  immigration  relief before United States Citizenship and Immigration Services.

 

Biden Admin. Restores Immig. Courts’ Power To Nix Removals

Law360: The Biden administration on Thursday swept aside a Trump-era decision that mostly stripped immigration judges of their power to end removal proceedings, restoring immigration courts’ ability to terminate some deportation cases while it devises new policy.

 

Judge Allows Biden 5 Weeks To Wind Down Title 42

Law360: A federal judge on Wednesday granted “with great reluctance” the Biden administration’s request for a five-week stay of his previous day’s order to end expulsions of migrants under Title 42, a public health provision the Trump administration began using at the start of the pandemic.

 

Split 4th Circ. Orders Rehear Of Removal In Light Of Dimaya

Law360: A split Fourth Circuit panel ordered the U.S. Board of Immigration Appeals to reconsider a Jamaican man’s removal order, criticizing the agency’s reasons for rejecting his claims that he diligently sought reversal of his order following a Supreme Court ruling.

 

NY IJ Asylum Victory; Guatemala; Feminist Political Opinion

LexisNexis: Michael Shannon writes: “I wanted to share a very good written decision from IJ Barbara Nelson, who granted asylum to my client based on her actual and imputed feminist political opinion under Hernandez-Chacon v. Barr.”

 

Feds Get OK For Psych Exams Of Migrant Parents

Law360: The federal government got the green light from an Arizona federal judge to conduct psychological examinations of asylum-seeking parents suing for damages for the alleged emotional trauma from being separated from their children at the southwestern U.S. border.

 

AILA and Partners Send Letter to USCIS, EOIR, and OPLA on Biometrics Appointments

AILA: AILA and partners sent a letter to USCIS, EOIR, and OPLA addressing the unnecessary hurdles non-detained people in removal proceedings face in securing a biometrics appointment prior to their merits hearing.

 

USCIS Notice of Continuation of TPS Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal set to expire on 12/31/22, through 6/30/24. (87 FR 68717, 11/16/22)

 

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

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

Miller Lite
After two years of “drinking the koolaid,” the party might be over for Mayorkas & Garland, as McCarthy & his insurrectionist/White Nationalist zanies “move in for the kill.”

Two years of ineptness, failure to clean house at DOJ and DHS, unkept promises to advocates, lack of guts to quickly reverse Trump’s massive scofflaw program of racist-inspired human rights abuses, arrogant “tuning out” of experts, lack of engagement and presence at the border have been largely ignored by Dems in both Houses. Indeed, other than a hearing on the Article 1 bill before Chair Lofgren (at which Garland was not required to appear and explain his due-process-denying mess and abject failure to reform EOIR), Dems failure to conduct meaningful oversight of the Administration’s mishandling of refugee programs, asylum, detention, asylum seeker resettlement, and Immigration Courts will be “coming home to roost” as insurrectionist, racists from the House GOP take aim at “snuffing” humanity and abolishing the rule of law! 

Two years of inept, immoral, “Miller Litism” from the Administration leaves Dems with no defense and no supporters of their actions. Nativist restrictionists wanted “100% kill” @ border! Experts wanted a return to the rule of law, orderly processing, and due process. The Biden Administration delivered neither!

We tried to tell them, but they wouldn’t listen! No,  McCarthy and his insurrectionist White Nationalist zany-haters have the floor. Just have to hope that historians are fully documenting the lies and Neo-Nazi views that these GOP hacks will be promoting — to help future generations understand how America “went off the rails” in the 21st century! Understandably, the GOP would rather focus on Biden’s failed immigration policies than on the rampant gun violence, hate crimes, child abuse, forced births, and dumbing down of America at the heart of their vile agenda!

🇺🇸Due Process Forever! The GOP’s “New McCarthyism,” Never!

PWS

11-23-22

⚖️ “SIR JEFFREY” CHASE & CAMILA BUSTOS TAKE ON TOPIC OF CLIMATE REFUGEES IN LATEST “JUST SECURITY!”

Camila Bustos Clinical Supervisor in human rights practice at the University Network for Human Rights, Visiting Assistant Professor of Human Rights at Trinity College. PHOTO: Just Security

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

https://www.justsecurity.org/84092/tackling-climate-change-displacement-at-cop27/

As severe weather patterns intensify, climate change will continue to displace communities across the globe. The World Bank estimates that there could be more than 143 million people internally displaced by slow-onset disasters in Latin America, Sub-Saharan Africa, and Southeast Asia by 2050. Populations with the least capacity to respond and adapt to a changing climate are more likely to suffer from the worst impacts.

States have a responsibility to ensure that individuals displaced because of climate change impacts are treated with respect and dignity. Yet international law does not recognize climate displacement as a subject warranting special protection or status. The 1951 Refugee Convention only recognizes persecution on account of five protected grounds (nationality, race and ethnicity, political opinion, religion, or particular social group), leaving those fleeing environmental disasters under circumstances not attributable to those specified reasons without protection.

Despite the urgent need for action, governments have been slow in creating pathways to protect climate-displaced people. If anything, increasing militarized approaches to migration flows and national security rhetoric has permeated mainstream discourse on climate migration. Discussions about “economic migrants” and which groups are deserving of international protection distract from real solutions that can provide relief and uplift the dignity of individuals displaced by climate. Also concerning is the fact that authoritarian governments have leveraged the ongoing United Nations Climate Change Conference (COP27) to either greenwash their image or exclude environmental advocates from accessing the climate talks.

Although climate migration is not on its official agenda, COP27 offers an opportunity for international climate negotiators and advocates to tackle the issue in three ways: (1) promote changes in domestic legal frameworks that will protect internally displaced populations; (2) raise awareness of how existing legal protections under asylum frameworks intersect with climate change; and (3) guarantee climate finance pledges are met by mobilizing funds dedicated to adaptation and mitigation.

. . . .

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Read Jeffrey’s and Camila’s article “at the link.” Another classic example of timely “practical scholarship” written in plain English and accessible to a wide range of readers.

It’s discouraging, but not surprisingly, that nations, including ours, wasting billions on gimmicks to AVOID their obligations under the existing, inadequate Geneva Refugee Convention and Protocol are not anxious to engage on the real effects of climate migration. But individuals facing death under sand or under water as our climate changes are NOT going to go quietly and submissively into the night. 

Nations, like ours, whose politicians think that power, cruelty, denial, and misinformation — the “head in the sand” approach — will win the future eventually must confront the realities of climate change and human migration whether they find it convenient and politically advantageous or not. On the other hand, those nations that are able to recognize both the power and inevitability of migration, and are smart enough to “go with the flow,” rather than futilely attempt to “dam it up” or divert it will eventually gain the upper hand.

🇺🇸Due Process Forever!

PWS

11-21-22

ALERT: Judge Sullivan “Reluctantly” Grants DHS Temporary Stay Until Dec. 22, 2022 To Reinstate Rule Of Law For Asylum Seekers!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/judge-permanently-enjoins-cdc-border-blockade-title-42-as-of-dec-22-2022

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Let’s look at this in perspective. Biden ran in 2020 on a platform of ending Title 42 and restoring asylum processing at the border. Almost two years later, after illegally returning hundreds of thousands of asylum seekers without any process at all, his Administration still lacks a coherent, transparent plan to implement asylum law at the border. This wasn’t “rocket science” as there had been an operating asylum system at the border for approximately four decades, since the enactment of the  Refugee Act of 1980, until Trump illegally ended it.

After more than a year of dawdling, the Administration eventually, reluctantly, set a May 23, 2022 date to “lift” the illegal Title 42 “blockade,” giving GOP nativists more than ample time to block it.

In the meantime, they squandered time, money, and goodwill thinking of ways to actually extend the illegal removals. Their “defense” of  lifting Title 42 was, predictably, half-hearted and inept. Not surprisingly, they were enjoined by nativist right wing judges. Reportedly, many Administration officials breathed a “sigh of relief” that the GOP nativists and their “wholly owned judges” had “bailed them out” from having to actually restore the asylum system and make good on their campaign promises.

Now, another six months have gone by. Garland and Mayorkas still are “not ready for prime time.” Sounds like they thought their “regime of illegal returns” would last forever!

Casts doubt on the good faith of their claim that they wanted to end Title 42 in the first place. Almost all Administrations, once in office, get enamored of the idea that “because it’s only immigrants” they don’t have to treat them as humans. What’s another month of law violations after two years and hundreds of thousands of human rights abuses?

I have little confidence that there will be a functional, due process compliant, asylum system on Dec. 22 at the border. I’m not aware that DHS and EOIR even have the properly trained qualified personnel to correctly and efficiently apply asylum law. There is no known plan for working with the pro bono bar to insure representation and prioritize the many potentially grantable cases.

There is certainly a mind-boggling “leadership void” at both DHS and DOJ on refugee, asylum, and human rights issues. The ill-advised “gimmicks” and “corner-cutting” that Garland and Mayorkas have substituted for competence and expertise in “recently arrived” asylum cases have resulted in elevated denials, hindered representation, and alienated the pro bono bar and human rights NGOs. The latter have far more expertise in asylum law and better ideas on how to efficiently and fairly process refugees and asylees than anyone at either DHS or EOIR. Yet, the experts have intentionally been “frozen out” of the decision-making process.

Additionally, and stunningly, Garland has gone out of his way to alienate and demoralize the already stressed and overextended immigration bar with a insane dose of  “Aimless Docket Reshuffling.” Setting “D-Day” for reinstating the law, three days before the Christmas holiday, also seems highly problematic. What could possibly go wrong with a system run by politicos who have spent two years avoiding providing fair hearings to asylum seekers?

In the vacuum created by the Biden Administration’s incompetence and lack of leadership, racist GOP governors have taken control of “asylum resettlement” and conducted it in ways calculated to cause the most disruption, cruelty, and suffering for the political pawns (actually humans) that Biden has abandoned.

This does not sound like a “dressed for success” plan to restore a fair and efficient asylum system. But, after two years of adapting and using clearly illegal methods instead of competently handling human rights issues, the Biden group has gotten very used to  “programmed failure” and shifting the blame to Trump (out of office since Jan. 20, 2021), the hapless victims, and their lawyers.

I hope I’m wrong. But, I strongly suspect that it’s going to take more than Judge Sullivan’s order to end the disingenuous “Miller Lite” approach to immigration within the Biden Administration and usher in an era of expertise, competence, integrity, and courage in addressing human rights.

🇺🇸Due Process Forever!

PWS

11-18-22

 

 

🇺🇸 SANE, COMPASSIONATE CONSERVATIVE WHO STOOD AGAINST GOP’S EMBRACE OF TRUMPISM, HATE, LIES, GONE FAR, FAR TOO SOON — Michael Gerson (1964 – 2022)

Michael Gerson
Michael Gerson
1964 – 2022
Columnist
Washington Post

Here’s Karen Tumulty’s moving and heartfelt tribute to her colleague from today’s WashPost:

https://www.washingtonpost.com/opinions/2022/11/17/michael-gerson-faith-america-better/

One of the biblical injunctions sometimes cited by Michael Gerson, who died Thursday at the age of 58 after a long battle with cancer, comes from the New Testament book of Colossians: “Let your conversation be always full of grace, seasoned with salt, so that you may know how to answer everyone.”

That advice works not only for Christian believers such as he was, but also in the sometimes brutal political world in which he made his mark. He was a presidential speechwriter whose own words were, indeed, singularly seasoned and notably full of grace. For the past 15 years, he enriched the pages of this newspaper as a columnist for the Opinions section.

Michael Gerson from 2013: Saying goodbye to my child, the youngster

But civility, as Mike also noted, does not preclude tough-mindedness. Nor should it be mistaken for a lack of principles or perspective. His own were rooted in the faith that fueled and defined his involvement with politics, and he was scorching in his assessment of his fellow evangelicals when theirs took what he saw as a more cynical turn. In a September essay, he wrote these supposedly conservative Christians “have broadly chosen the company of Trump supporters who deny any role for character in politics and define any useful villainy as virtue. In the place of integrity, the Trump movement has elevated a warped kind of authenticity — the authenticity of unfiltered abuse, imperious ignorance, untamed egotism and reflexive bigotry.”

“This,” Mike wrote, “is inconsistent with Christianity by any orthodox measure.”

 

Mike and I were colleagues and friends whose paths crossed pretty regularly. One place we spent time together was at semiannual conferences in Florida known as the Faith Angle Forum, where people gather to discuss religion and politics.

It was during one of those meetings in 2014 that, for the first and only time, I saw Mike get angry — really angry.

 

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I was seated next to him for a session on religious conflict and the future of the Middle East, in which one of the speakers was Elliott Abrams, a fellow George W. Bush White House veteran who had served as deputy national security adviser for Middle East policy.

“It used to annoy me enormously when President Bush, for whom I was working, would say Islam is a religion of peace,” Abrams said, “because the real response to that is ‘Where is your theology degree from?’ ”

As Abrams continued along those lines — at one point claiming the “average American” was justified in thinking “this is crap … because all these people who are doing beheadings are Muslims” — I could feel Mike grow tense in the chair next to me. He waited his turn to be called upon, and then he confronted his former colleague.

“We praise Islam, and every president from now on will praise Islam on religious holidays because there are millions of peaceful citizens who hold this view,” Mike said. “It’s also a theologically sophisticated view, as opposed to what you’re arguing … every tradition, religious tradition, has forces of tribalism and violence in its history, background, of theology, and every religious tradition has resources of respect for the other.”

He added: “That is a great American tradition that we’ve done with every religious tradition that comes to the United States, included them as part of a national enterprise and praised them for their strongly held religious views and emphasized those portions that are most compatible with those ideals.”

As deep as his own Christian religious beliefs were, Mike was tolerant, accepting, even admiring of those who prayed differently. And while he was by and large a social conservative, Mike knew that not every question involving faith and truth could be resolved along the bright battle lines of the culture wars, or literally be set in scripture.

He celebrated gay pride month and argued that our scientific understanding of the genetic basis of sexual orientation has come a long way since the Apostle Paul’s time. But he also believed that religious institutions, including schools and charities, should have leeway to shape their own standards.

And Mike was open about the times in his life when he had his own doubts about what God had in mind for him. In 2019, he spoke frankly and publicly about being hospitalized for depression, delivering a powerful sermon at the National Cathedral and then a column for The Post.

A few days earlier, Mike and I had lunch. The speechwriter who had written so many words for others told me he was nervous about baring himself so publicly, and he asked if I would read a draft. He also confided that he had been living in a shadow where, at times, he wondered whether those who meant the most to him would be better off — unburdened — if he weren’t around.

In his sermon, he put it this way: “I suspect that there are people here today — and I include myself — who are stalked by sadness, or stalked by cancer, or stalked by anger. We are afraid of the mortality that is knit into our bones. We experience unearned suffering, or give unreturned love, or cry useless tears. And many of us eventually grow weary of ourselves — tired of our own sour company.”

Mike combined his lived faith with his gift for expression to offer a hand to others — showing that they are not alone in the dark. “Even when strength fails, there is perseverance,” he said in his sermon. “And even when perseverance fails, there is hope. And even when hope fails, there is love. And love never fails.”

Now, his unearned suffering has ended, and those he touched, including many who never met him in person, will so deeply miss Michael Gerson’s company. His grace was a blessing, and we need it more than ever.

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Go the above link for pictures and a selective compendium of Mike’s writings.

Mike was a voice for what modern American conservatism could and should have been: “a conservatism of the common good that argues that we need to orient our policies towards people that might not even vote for us.”

  https://www.washingtonpost.com/obituaries/2022/11/17/michael-gerson-speechwriter-post-dies/

I enjoyed reading Mike’s thoughtful, well-expressed, views in the WashPost, even when I disagreed with him. In particular, I agreed with his call-out of “false Christians:” Evangelicals who aligned themselves with the most un-Christian President in history and his vile “secular theology” of hate, lies, racism, selfishness, cruelty, and degradation of humanity.

Mike will be missed.

PWS

11-18-22

☠️🤯🤮🚫 AFTER WINNING YEARS-LONG BATTLE TO STOP ILLEGAL REFUGEE REMOVALS BY TRUMP & BIDEN, WEARY HUMAN RIGHTS ADVOCATES FACE DAUNTING NEW CHALLENGE: Garland’s Dysfunctional Due-Process-Denying “Courts” — Key Empirical Info Lacking, But We Do Know One Important Thing: Garland’s Latest Docket “Gimmick” — Time Limits — Sharply Reduces Chances Of Success, From Probable Grant (52%) To Likely Denial! — Quality Control & Grotesque Inconsistencies Remain Unaddressed In Dem AG’s “Race To Deny” Legal Protection!🤮

Judge Roy Bean
“Judge” Roy Bean (1825-1903)
American Saloon Keeper & “Jurist”
Public Realm
His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”

Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:

https://trac.syr.edu/reports/702/

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Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge 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

If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here). 

And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.

Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court. 

It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims. 

This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally! 

Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!  

An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-process rights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).

Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!

How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s  “Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years. 

As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.

Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners! 

The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.  

Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!

Waiting for Godot
Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?”
https://creativecommons.org/licenses/by-sa/3.0

🇺🇸 Due Process Forever!

PWS

11-17-22