"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Navigating Trauma: Tips for Attorneys and Their Clients: Free webinar Mar. 30 1 pm ET
Interested in learning how to deal with trauma in your clients and vicarious trauma you might suffer in sensitive cases like asylum, domestic violence, and violent crimes? Sign up for a free webinar entitled “Navigating Trauma: Tips for Attorneys and Their Clients” this Wednesday March 30, from 1-2 pm Eastern time.
Dr. JoAnn Difede, Director of the Program for Anxiety and Traumatic Stress Studies and a Professor of Psychology in Psychiatry at Weill Cornell Medicine, and Dr. Michelle Pelcovitz, Assistant Professor of Psychology in Psychiatry at Weill Cornell Medicine, will teach you how to recognize and deal with trauma. They will also provide self-care tips. Stephen Yale-Loehr, Professor of Immigration Law Practice at Cornell Law School and co-chair of the New York State Bar Association (NYSBA) Committee on Immigration Representation, will moderate.
The webinar is sponsored by NYSBA, Cornell Law School, Proskauer, Immigrant Justice Corps, the Association of Pro Bono Counsel, and other organizations. NYSBA will provide 1.0 MCLE credit of professional practice for attendees.
Anyone can register for the free webinar; you don’t have to be a NYSBA member. NYSBA members can register at https://nysba.org/events/navigating-trauma-tips-for-attorneys-and-their-clients/. If you aren’t a NYSBA member, set up a free account at https://nysba.org. Then input your name and email address so NYSBA can send you the Zoom link. The price is set up for free, so it will automatically be $0.00 when you add the program to your cart and check out. You can also call the NYSBA membership center at 800-582-2452 to register via phone. The program will be recorded, and attendees will receive handouts.
Stephen Yale-Loehr
Professor of Immigration Law Practice, Cornell Law School
Faculty Director, Immigration Law and Policy Program
Faculty Fellow, Migrations Initiative
Co-director, Asylum Appeals Clinic
Co-Author, Immigration Law & Procedure Treatise
Of Counsel, Miller Mayer
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Feeling stressed? Burned out? “Aimless Docket Reshuffling,” poor quality IJ decisions, and a “Trump holdover BIA” stacked with “appellate judges” who almost never see an asylum case they aren’t eager to deny got you down? Tired of having the exact same facts and arguments win in one case and lose in the next! Angry about Garland’s latest due process killing gimmick — more “expedited asylum procedures?”
Welcome to “business as usual” in the “Not so Wonderful” World of Merrick Garland’s EOIR!☠️
To practice before the dysfunctional Immigration Courts and USCIS in the “Biden Era,” members of the NDPA are going to need “coping skills” in addition to legal expertise to “fight the good fight” against systemic injustice, indifference to common sense and best practices, and endemic incompetence!
Check this out!It’s free!
Remember: It’s only human lives and the future of humanity that are at stake here! Why should Garland and his ivory tower lieutenants take it seriously, just because YOU do?
🇺🇸Due Process Forever!
PWS
03-25-22
*⚠️IMPORTANT DISCLAIMER: “Courtside” is solely responsible for the content of this promotion. It has not been approved for public consumption by the webinar sponsors, the FDA, or anyone else of any importance whatsoever!
Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.
Battle-scarred ghost town bears mute witness to Mexico’s drug wars
“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“
Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.
Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.
Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.
The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.
Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.
In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.
Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.
“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.
The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.
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Read the full article at the link.
Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration.We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers. Good policy?
Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.
There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.
The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!
Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!
What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:
“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”
. . . .
“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).
Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:
Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.
“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.
To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!
Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are “weak?” They wouldn’t?
Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.
Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts” were “weaponized” into “asylum killing grounds.”
Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club” — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.
Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!
Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!
Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!
We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).
Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”
Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!
Report on Boston Asylum Office finds disproportionately low acceptance rates, bias against applicants
The office serving asylum seekers in and around Maine has the second lowest approval rate in the nation, according to a report by Maine immigrant advocacy groups.
The Boston Asylum Office has the second lowest acceptance rate of any office in the nation, and granted asylum to only 11 percent of its applicants in 2021, according to a report by Maine legal aid organizations handling immigration cases and advocates for reform.
The report says the office that serves asylum seekers in and around Maine is plagued by bias and burnout, and that its low grant rate is “driven by a culture of suspicion” toward asylum seekers.
The process of seeking asylum in the United States begins with an application to U.S. Citizen and Immigration Services. Applicants must prove they are fleeing a country in which they previously suffered persecution or were at risk of persecution based on race, religion, nationality, membership in a particular social group or political opinion.
Applications go through asylum offices first, which can either grant asylum from the outset or refer an application to an immigration court for a judge to consider.
Jennifer Bailey, an attorney for the Immigrant Legal Advocacy Project and one of the report’s authors, said almost all asylum seekers she works with eventually obtain asylum status through immigration court, after failing to be granted asylum at the Boston Asylum Office. But the court process can take years, and, while they’re waiting, applicants aren’t able to access federal student aid, social services or educational opportunities. Even worse, they spend that time away from their families, who can still be at risk.
“It’s not uncommon for people’s (families) left at home to die while they’re waiting, or to be lost within the violence,” Bailey said.
Collaborating with the Immigrant Legal Advocacy Project on the report were the Refugee and Human Rights Clinic at the University of Maine School of Law, the ACLU of Maine and a visiting lecturer at Amherst College in Massachusetts who spent eight years waiting on a decision from the Boston Asylum Office and was ultimately denied in May 2021. Today, he and his family live in Canada.
During its first five years, the Boston office – which opened in 2015 and processes about 5,600 applications a year – granted roughly 15 percent of its asylum applications on average, the report states. Meanwhile, offices in San Francisco and New Orleans were accepting asylum requests at rates that were more than three times higher. Nationally, the acceptance rate from 2015 to 2020 was 28 percent, the report says.
The report acknowledged that asylum officers who approve or refer cases to court face a “complex and essential” list of responsibilities. Being overworked and having less time to consider cases often results in asylum officers sending more referrals to immigration court, said some former officers cited in the report.
Meanwhile, supervising officers play an “outsized” role in the asylum-granting process, according to the report. If an asylum officer recommends granting asylum and the supervisor disagrees, the officer could face retaliation in the form of more work or a negative performance evaluation, the report states.
PRESUMPTION OF FRAUD
The report’s authors contend that their research “strongly suggests” that Boston’s asylum office doesn’t consider applications from a neutral stance, “but rather presumes they must be fraudulent or pose a security threat.” Of 21 trainings for asylum officers mentioned in the report, 14 were focused on fraud detection. Former officers told the report’s authors that constantly hearing concerns about fraud and credibility made them think such problems were more prevalent than they were.
“They’re telling their story, which, no matter what, can involve this unimaginable trauma of torture and violence or sexual violence or death,” Bailey said of asylum seekers. “Put yourself in that position and imagine how hard it is to talk about the worst thing that’s ever happened to you in your life, and having this officer – who has the power to help you and your family – say ‘No, I don’t believe you.’”
According to the report, bias and skepticism in the office extend to certain countries. The Boston Asylum Office granted only 4 percent of asylum applications from the Democratic Republic of Congo from 2015 to 2020, even though the U.S. has acknowledged significant human rights violations in that country, including unlawful killings and torture, the report says. The office granted only 2 percent of its applications from Angola, another country where there is known abuse.
The Newark Asylum Office in New Jersey, which also serves some of New England, granted asylum to 17 percent of its applicants from Angola and 33 percent of its applicants from the Democratic Republic of Congo.
English-speaking applicants are nearly twice as likely to be granted asylum as non-English speakers, who are referred to immigration court 80 percent of the time, the report says. Asylum-seekers who can speak English are referred to immigration court just under 60 percent of the time.
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Read the rest of Emily’s fine article at the link.
I did lots of DRC cases over 13 years on the trial bench! Most had lawyers and were extremely well-documented. Often ICE didn’t oppose grants (prior to Trump).
In Arlington, with agreement from the parties, they were candidates for the “short docket.” Nearly all the DRC cases “referred” from the Arlington Asylum Office were granted upon “de novo” review in Immigration Court.
This is a prime example of how our asylum system seriously regressed under Trump and has not been fixed by Garland and Mayorkas! No wonder our Immigration Courts are hopelessly and unnecessarily backlogged with an astounding 1.6 million pending cases. Bad judging, systemic anti-asylum bias, lack of competence, and gross mismanagement by DOJ and DHS are taking a toll on democracy and humanity!
Pathetically and disingenuously, USCIS tries to blame their malfeasance and lack of competence on “the pandemic.” That drew one of the more perceptive public comments I’ve seen recently:
Pandemic restrictions didn’t create bias in other asylum offices – that’s a totally inadequate excuse.
For sure! Just like it’s a pretext for the elimination of our legal asylum system at the border that Garland disgracefully defends! Think that the “anti-asylum culture” problem ends with USCIS? Guess again?
Former Attorney General Jeff “Gonzo Apocalypto” Sessions was never bashful about sharing his White Nationalist, nativist, xenophobic falsehoods and myths about asylum seekers with his “captive” Immigration Judges. That’s right, for those not “in the know,” amazingly the “courts” that are supposed to provide expert legal precedents on asylum law and give a “fresh look” to those cases not granted by the Asylum Office aren’t “courts” at all as most Americans know them. They are run by the chief law enforcement official of the United States, the Attorney General, even though they are called “Immigration Courts.”
Sessions actually made the following statement, unsupported by any hard evidence, to a group of his wholly owned “judges” on October 12, 2017:
“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
At the same time, he announced that he was, on his own motion and over the objection of the DHS and the applicant, “undoing” the leading BIA precedent recognizing gender-based harm as a ground for asylum. For a good measure, he also warned his supposedly, but not really, “fair and impartial judges” that he expected them to strictly apply precedent — HIS precedents, that is. In other words, start cranking out those asylum denials or your career might be in peril!
Some judges chose to resign or retire. Some kept on doing their jobs conscientiously, legitimately “working around” Sessions’s poorly reasoned and factually inaccurate anti-asylum precedents. Many, however, chose to “go along to get along” with the anti-asylum program — some happily (there were reportedly some cheers and applause when Sessions announced his cowardly assault on vulnerable refugee women of color), some not.
So clearly wrong and totally off-base was Sessions’s assault on asylum-seeking women, primarily those of color, that even the otherwise timid and reticent AG Merrick Garland had to reverse it during his first year in office and restore the prior BIA precedent. However, there has been no further guidance from the BIA on properly and generously applying this potentially favorable, life-saving precedent.
President Biden charged Garland and Mayorkas with developing regulations on gender-based claims by October 2021. Obviously, that date has come and gone with the regulations still MIA!
Think that promoting a culture of xenophobia, racism, and overt bias has no effect? During the Trump Administration, although conditions for refugees, and particularly for refugee women, worsened over that time, the Immigration Court asylum grant rate fell precipitously — from more than 50% during the mid-years of the Obama Administration to only 23% during FY 2020, the last full year of the Trump regime.
The Immigration Courts and especially the BIA were “packed” by Sessions and his successor “Billy the Bigot” Barr with questionably qualified “judges” perceived to be willing to do their nativist bidding. Inexplicably, Garland has been unwilling to “unpack” them, despite these being DOJ attorney positions in the “excepted service,” NOT life-tenured Federal Judges.
Consequently, life or death asylum decisions today depend less on the legal merits of an applicant’s case than they do on the particular Immigration Judge assigned, the composition of the BIA “panel” on appeal, the Federal Circuit in which the case arises, and even the composition of the panel of U.S. Circuit Judges who might review the case.
They also depend on whether the applicant is fortunate enough to have a lawyer (not provided by the USG). Any unrepresented, often non-English-speaking asylum seeker has little or no chance of negotiating the intentionally arcane, opaque, unnecessarily hyper technical, and “user unfriendly” asylum system in Immigration “Court” without expert help.
Almost every week, the Circuit Courts of Appeals publish major decisions pointing out elementary legal and factual errors by the BIA’s “deportation railroad.” But, that’s just the tip of the iceberg! The vast majority of life-threatening errors by the Immigration Courts go uncorrected as the applicants are unable to pursue their cases to the Courts of Appeals or are “duressed” by DHS detention in substandard conditions into giving up viable claims.
Check out some of these denial rates by ten of Barr’s BIA appointees who previously served as Immigration Judges. Those judges are listed with their asylum denial rates, according to Syracuse University’s 2021 TRAC Reports:
Michael P. Baird (91.4%),
William A. Cassidy (99%),
V. Stuart Couch (93.3%),
Deborah K. Goodwin (91%),
Stephanie E. Gorman (92%),
Keith Hunsucker (85%),
Sunita Mahtabfar (98.7%),
Philip J. Montante, Jr. (96.3%),
Kevin W. Riley (90.4%),
Earle B. Wilson (98.2%)
Gee, these guys make even the artificially high nationwide asylum denial rates (76%) resulting from Trump’s all-out assault on due process and the rule of law look low by comparison! Gosh, only one of these Dudes was even within 10% (just barely) of that already outrageously high, artificially “reverse engineered” national denial rate.
Yet, inexplicably, these virulently anti-asylum judges continue to serve and negatively shape asylum law under Garland! Even “pre-Trump,” most of them avoided granting any asylum, in the face of precedents supposedly requiring generous application of the law in accordance with U.N. guidance and recognizing gender-based persecution as real.
So, it’s little surprise that no meaningful positive guidance or helpful interpretation has come from Garland’s BIA that might lead to expedited and consistent asylum grants to the many meritorious asylum cases now buried in his burgeoning 1.6 million case Immigration Court backlog! No wonder civil rights, human rights, equal justice, and Constitutional law experts consider Garland to be a failure as AG!
To date, Garland has appointed only one BIA Appellate Judge out of 21! That was to fill an existing vacancy. Judge Andrea Saenz is a superbly qualified asylum expert with scholarly credentials, “real life” experience representing asylum seekers in Immigration Court, clerking experience in those courts, and proven intellectual and practical leadership capabilities.
But, we need a “BIA of Judge Saenzes” — like yesterday! The talent is out there! But, Garland and his lieutenants have been too dilatory, tone deaf, and shockingly indifferent to these glaring due process, expertise, and racial justice issues to bring in the qualified judges and judicial administrators to fix his unjust, unfair, and grotesquely inefficient “courts.” Thus, the dysfunction grows, festers, and eventually destroys, maims, and kills! Is this really an appropriate “legacy” for a Dem Administration?
Today, in a WashPost OpEd, Krish O’Mara Vignarajah, President & CEO of Lutheran Immigration and Refugee Service, points out:
Why are members of this outrageous “protection deniers’ club” still on Garland’s broken and biased Immigration Court bench? You don’t have to be a human rights scholar or Constitutional law expert to see that there is something seriously wrong here that Garland is sweeping under the rug!
Yes, the best answer is an independent Article I Immigration Court, free from the mismanagement and political shenanigans of the DOJ, with a merit-based selection system for judges. But, that doesn’t absolve Garland from the responsibility to fix the existing system NOW before more lives are lost, futures ruined, and American justice irretrievably degraded!
The current racially discriminatory, scofflaw, patently unjust parody of a “court” system being run by Garland is as unacceptable as it is immoral!
Garland and Mayorkas have allowed this approach to asylum seekers to flourish on their watch. That raises serious questions about their suitability for their current positions! Albrecht Dürer, Public domain, via Wikimedia Commons
“Interim Regulations” Aren’t The Answer!
Today, the Biden Administration released new “Interim Asylum Regulations” that appear designed to fail. https://public-inspection.federalregister.gov/2022-06148.pdf. That’s because they don’t address the real competency, leadership, and legal problems plaguing the current system!
I won’t claim to have waded through every word of this entire 512-page mishmash of largely impenetrable bureaucratic gobbledygook. But, I can see it’s more tone-deaf micromanagement of the Immigration Court, along with the usual, arbitrary and capricious, unrealistic “off the wall” “time limits” that are guaranteed to make things worse, not better. It’s basically more of Garland’s “Aimless Docket Reshuffling” and his “Treadmill for Immigration Attorneys” that have already helped fuel unprecedented backlogs amidst wildly inconsistent results and a steady stream of life-threatening errors from his dysfunctional “courts.”
As if the answer to a poorly functioning, hopelessly self-backlogged, incompetent, biased, and unfair system is to “speed it up!” Come on, man! That suggests, quite incorrectly, that the primary problems in our asylum system are something other than lack of competence, integrity, expertise, and leadership at DHS and DOJ!
In reality, Garland’s defective “assembly line justice” at EOIR is already cutting so many corners and being so careless and “denial focused” that a steady stream of elementary legal errors show up in the Courts of Appeals every week. How is speeding up an already unfair and error plagued system going to make it better?
The real answer is to move the many grantable asylum cases that pass credible fear through the system correctly, fairly, on a reasonable, timely, predictable basis, with representation. That requires more and better trained Asylum Officers; different, better Immigration Judges who know how to recognize and grant asylum and keep the parties moving through the system; a new BIA of practical scholars who are due-process-oriented human rights experts to set favorable, practical asylum and procedural precedents and to keep IJs, AOs, and counsel for both sides in line; and close cooperation and advance coordination with the private bar and NGOs to insure representation of all asylum seekers.
This “interim regulation” avoids and obfuscates the necessary personnel replacement, attitude adjustment, and changes to the “culture of denial and deterrence” required in the Executive Branch for our asylum system to work! I predict colossal failure!
Get ready to litigate, NDPA! This is an “in your face,” largely unilateral, insulting approach. Rather than respecting your expertise, dedication, abilities, and counsel in fundamentally changing this system, Mayorkas and Garland intend arrogantly to “shove it down your throats and the throats of asylum seekers” with their inferior personnel, a toxic culture of denial, bad attitudes, and poor lawyering! Accept the challenge to resist!`
The portrayal and treatment of Ukrainians fleeing war and of Haitian, Central American and Mexican asylum seekers also fleeing deadly violence could not be more different
By Nikolái Ingistov-García
. . . .
Over the course of that weekend, I watched how the Ukrainian refugee crisis grew day by day. I read that Airbnb was paying for thousands of refugees to stay in their rooms. Thousands of Europeans in dozens of countries opened their doors to Ukrainians. I was encouraged but bothered at the same time. Media outlets all over the world from the left, right and center praised the courage of these refugees, and some reporters called them heroes.
An overwhelming majority of my students in my classes at UCR are Latino. Several of them are refugees from Latin America, and a few are “Dreamers.” I asked if any of them noticed anything with this growing refugee crisis in Eastern Europe, and several were quick to point out the double standard.
A few weeks before Putin’s invasion of Ukraine started, my class watched interviews about the forced sterilization of Latina refugees at an immigration detention center in Georgia. We discussed the Latino children fleeing Honduras, El Salvador and Guatemala who are being held in U.S. Immigration and Custom Enforcement detention centers to this day. The double standard in the me-dia’s portrayal of the Ukrainian refugees in Europe compared with the images of Haitian, Central American and Mexican migrants at the Mexican border was obvious to everyone in my class.
I thought about the tens of thousands of refugees fleeing Ukraine and the tens of thousands of refugees who have had to flee their homes in Central America, Mexico and other parts of Latin America because of wars, dictatorships, gang warfare and cartel terrorism. Refugees and migrants who are uprooted from their homes all go through trauma whether they come from Latinoamérica or Eastern Europe.
The images of people fleeing Ukraine shook me as I remembered my family’s histories from Ukraine and Mexico, with both sides leaving their homelands for a better life.
. . . .
Ukraine and Mexico came together to form my family in the borderland of Los Angeles. My Chicano-Mexican-Russian-Ukrainian border-crossing identity hurts as I watch Putin’s war unfold while more waves of Latin American and, very recently, Ukrainian refugees arrive at the Tijuana-U.S. border. My hope is that out of this tragedy, future refugees that come to the Mexican border, whether they are from Honduras or Ukraine, are treated with equal dignity — which all of them deserve.
Nikolái Ingistov-García is a lecturer in Spanish languageand Latin American Studies at UC Riverside.
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Ukrainian refugees are “courageous heroes.” Meanwhile, equally brave and deserving refugees of color from Haiti, Latin America, and Africa are dehumanized, degraded, and removed to potential death or danger without a thought and in violation of law.
They are often called by the misnomer “illegal migrants” — or worse! Ironically, however, the refugees arriving at Southern Border, even if not “invited,” are exercising internationally and domestically recognized legal rights to apply for asylum and other legal protections from involuntary return, some mandatory!
Of course, as intelligent humans, they don’t wait in vain or line up for “imaginary invitations” that will never come! We have no viable refugee programs for Haiti, Africa, and Latin America. Indeed, after four years of Trump and one of Biden we barely have any refugee programs anywhere! Even worse, we have immorally and illegally closed legal ports of entry to asylum seekers. So, having left refugees no viable legal avenues for seeking refuge in the U.S., a right guaranteed by both statute and international convention, we dehumanize and degrade them for using the only “self-help” methods available! Talk about chutzpah!
It’s actually folks like Vice President Harris, Secretary Mayorkas, AG Garland, and his band of scofflaw lawyers at the DOJ who are the “illegals” in this scenario. The Biden Administration is hardly the first to turn refugee and asylum laws as well as the Due Process and Equal Protection Clauses of our Constitution on their heads.
The Trump regime gloried in violating the law and mistreating refugees simply for the cruelty, racism, and hate involved. Shockingly, with a some exceptions, life-tenured Federal Judges gave them a pass — particularly at the Supremes which developed their own “special double standard” to dehumanize and “Dred Scottify” immigrants of color!
The Biden Administration sweeps their own gross misconduct and racially charged “double standards” under the rug! Under Garland, the DOJ has “gone along to get along” and even disgracefully defended illegal, immoral, and deadly removals without any process at all. In doing so, they have advanced some of the same discredited myths and disingenuous pretexts developed by Miller, Sessions, Barr and the Jim Crow White Nationalist nativists!
The “mainstream media” give excruciatingly detailed coverage of the humanitarian plight of Ukrainian refugees. Meanwhile, the similar humanitarian plight of vulnerable equally deserving refugees of color, like Ukrainians many of them desperate women and children, gets little coverage outside of a few specialized reporters.
Of course, beyond the rhetoric, the Biden Administration has actually done very little to help even Ukrainian refugees beyond hollow expressions of sympathy and using them as “props” in the “war of words” with Putin. Leadership is a combination of rhetoric backed with action!
Our refugee and asylum systems are in shambles, without the leadership and expertise in place to respond to either predictable refugee flows or humanitarian catastrophes in a practical and effective way. That needs to end! But, unfortunately, its hard to see the current, spineless (non) leadership from Harris, Mayorkas, Garland, and others in this Administration getting the job done!
Although most senior Biden Administration officials work hard to avoid the border and confronting scenes like this, trauma, death, destruction, and dehumanization of the world’s most vulnerable will remain as indelible parts of their toxic legacies. “Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Carrying on and defending this guy’s cruel, inhuman, deadly, dishonest, and illegal policies wasn’t part of the Biden-Harris campaign pledge. Or was it? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
“For two years, the U.S. government has illegally blocked and expelled people seeking refuge at the southern U.S. border despite U.S. laws and treaties created to protect them. Since March 20, 2020, the U.S. Department of Homeland Security (DHS) has used orders from the Centers for Disease Control and Prevention (CDC), purportedly issued under Title 42 of U.S. law, to prevent asylum seekers from requesting U.S. asylum and returning thousands to persecution, torture, and other horrific violence. In March 2022, the U.S. Court of Appeals for the D.C. Circuit found that the use of Title 42 to expel people to places where they would face persecution or torture is likely illegal, violating U.S. refugee laws and international treaty obligations.
The grave human rights abuses faced by people turned away under Title 42 continue to mount every day that U.S. officials allow this policy’s use to evade refugee law. Human Rights First has now tracked at least 9,886 kidnappings, torture, rape, and other violent attacks on people blocked in or expelled to Mexico due to the Title 42 policy under the Biden administration – a new record of suffering.
Flouting refugee protection laws as a response to the COVID-19 pandemic is not and never was justified as a public health measure. Initially issued by the CDC under orders from senior Trump administration officials and despite objections by CDC experts, the Biden administration has continued the policy for migration policy and/or political reasons, according to various reports. CDC Director Dr. Rochelle Walensky re-issued a new version of the Title 42 order in August 2021, and has subsequently repeatedly extended it. The CDC must review whether to continue, modify, or end the Title 42 order by March 30, 2022.
Epidemiologists and medical experts have exhaustivelyestablished that Title 42 does not protect public health, and in fact exacerbates the spread of COVID-19. The claimed public health justification for the Title 42 order has become even more transparently unjustified as the administration lifts other pandemic-related international travel restrictions and with mask mandates lifted in all 50 U.S. states. In March 2022, the CDC partially terminated the Title 42 order as to unaccompanied children following a federal court ruling that would have compelled the resumption of expulsions of unaccompanied children. In a notice explaining the decision, the CDC cited declining COVID-19 cases nationwide, including in communities along the U.S.-Mexico border, increased vaccination rates in the United States and countries of origin, and widespread availability of COVID-19 testing and other mitigation measures at facilities receiving migrants. Despite these factors applying equally to all people seeking refuge in the United States, the CDC has so far disingenuously maintained the Title 42 order to expel families and adults.
At this shameful second anniversary of the Title 42 policy, the Biden administration continues to illegally turn away asylum seekers without access to the U.S. asylum system. It is carrying out dangerous expulsions to countries refugees have fled, including: El Salvador, Guatemala, Haiti, Honduras, and Mexico, as well as expelling some Venezuelans to Colombia. The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families. While some Ukrainians fleeing the Russian invasion have been allowed to cross into the United States at southern border ports of entry, Customs and Border Protection (CBP) continues to cite Title 42 to illegally block others and to discriminatorily turn away many asylum seekers of other nationalities and races who have often been waiting for months or years in danger in Mexico to seek U.S. asylum protection.
The Biden administration must immediately end this disastrous policy and restart the asylum processes required under U.S. law along the border, including at ports of entry, as Human Rights First has recommended. In recent weeks, dozens of members of Congress have publicly called for an end to the Title 42 policy with Senate leadership condemning the Biden administration’s decision to continuing sending asylum seekers “back to persecution and torture” as “wrong.” The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.
How will Harris, Mayorkas, Garland, Walenksy, and other senior Biden Administration officials who have spinelessly furthered these inexcusable, illegal, abusive, and deadly anti-humanitarian policies deal with their toxic legacies? Also, Deputy AG Lisa Monaco, Associate AG Vanita Gupta, SG Liz Prelogar, and Assistant AG for Civil Rights Kristen Clarke stand out as irresponsible, “look the other way,” fundamentally flawed public officials who have failed to “rise to the occasion” in the time of democracy’s and humanity’s greatest needs! Carrying out “Miller Lite,” Jim Crow, xenophobic, racially targeted policies, often endorsing false narratives and using obvious pretexts, directed against some of the world’s most courageous, vulnerable humans, deserving of humane treatment and fair access to refuge, is “NOT OK!”
Perhaps the most telling observation about our exercise in national failure is this:
The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.
It’s not rocket science! All it would have taken to get his right would be some political courage and empowering those with the skills and vision to change the way we treat refugees, asylees, and other immigrants!
“The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.
One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of a new Form G-28 and refuses to speak with the alternate attorney. In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.
Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.
Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.
Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria
The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022), https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.
Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).”
Asylum attorneys have been facing a longstanding mental health crisis. The pandemic, sweeping regulatory changes, and uncertainty created deeper dimensions of stress in an already chaotic immigration system. To address this crisis, in 2020, Professors Lindsay Harris and Hillary Mellinger surveyed over 700 immigration attorneys utilizing the National Asylum Attorney Burnout and Secondary Traumatic Stress Survey. Their groundbreaking study found that asylum attorneys displayed symptoms of burnout and Secondary Traumatic Stress (STS) at rates higher than immigration judges, social workers, hospital doctors, nurses, and prison wardens. Asylum attorneys reported burnout symptoms including not only depression, but boredom, cynicism, discouragement, and a loss of compassion. Notably, STS symptoms mirror Post-Traumatic Stress Disorder which include intrusive thoughts, traumatic nightmares, insomnia, chronic irritability, fatigue, trouble concentrating, and hypervigilance.
The ABA has a longstanding commitment to address and identify resources to ameliorate attorney well-being and mental health. While strides have been made, this panel seeks to build upon the study to facilitate a normative shift away from old mental health paradigms to a culture of openly discussing burnout and secondary trauma within law school settings, non-profits, government agencies, and law firms.
This webinar, moderated by Deena Sharuk, Senior Legal Advisor to the ABA Commission on Immigration (COI), along with experts Law Professor Lindsay Harris, Criminal Justice and Criminology Professor Hillary Mellinger, ABA COI Senior Staff Attorney Eloy Gardea, and Leora Hudak from Center for Victims of Torture will discuss the implications of the survey’s findings on lawyers, their clients, and the immigration system. The panelists will discuss concrete ways to shift the norms in the legal profession on an individual and institutional level for attorneys to build sustainable careers in this field.
Time: Apr 7, 2022 03:00 PM in Eastern Time (US and Canada)
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Of course, USCIS isn’t the only part of the dysfunctional immigration bureaucracy taking a toll on the heath of practitioners and their clients.
Over at EOIR, poor leadership, overly bureaucratized management, “Aimless Docket Reshuffling,” mindless enforcement “gimmicks,” a “Miller Lite” BIA, poor judicial selections by the Trump regime unaddressed by Garland, anti-immigrant/anti-asylum seeker “culture,” disdain for due process, disregard for best practices, endless largely self-generated backlogs, and lack of transparency continue to plague the system and torment advocates.
Unlike DOJ and EOIR, the ABA Panel conducting this webinar is made up of true subject matter experts and all-star practical scholars.
Deena Sharuk Senior Advisor ABA Commission on ImmigrationProfessor Lindsay Muir Harris UDC LawDr. Hillary Mellinger Assistant Professor Department of Criminal Justice and Criminology Washington State University PHOTO: WSUEloy Gardea Senior Staff Attorney ABA Commission on Immigration PHOTO: FacebookLeora Hudak Program Manager Center for Victims of Torture PHOTO: Linkedin
Leading Senate Democrats demanded that the Biden administration immediately end a Trump-era policy that blocks asylum-seeking migrants from crossing land borders into the United States, after lawyers said U.S. Customs and Border Protection expelled a single mother of three who had traveled from Ukraine to Mexico seeking refuge.
Senate Majority Leader Charles E. Schumer (D-N.Y.) cited the “desperate” Ukrainian family at a news conference Thursday and said he was deeply disappointed that the Biden administration has dragged out the Trump-era policy, which a federal appeals court in D.C. last week called “questionable.” The Trump administration issued the order two years ago under Title 42, which is the public health code. Since then, officials have expelled more than 1.6 million migrants to countries such as Haiti and Mexico.
“The United States is supposed to welcome refugees with open arms, not put them in additional danger by denying them a chance to plead their case and leaving them at the mercy of criminals and smugglers,” Schumer said, joined by advocates for immigrants. “Now’s the time to stop the madness.”
Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, added that the policy “has created life-threatening conditions” for migrants. He called on the Centers for Disease Control and Prevention, which issued the order under President Donald Trump and has extended it under President Biden, to rescind it.
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Sofiia, 34, who asked to be identified only by her first name because she has family sheltering in their basements in Ukraine, said in a telephone interview that her family had enjoyed a good life there. She worked as a Hebrew teacher and lived in her father’s house. They left as bombs grew closer.
“I was seriously afraid for my life and the life of my kids,” she said in English, one of four languages that she speaks.
She said she and her children — ages 6, 12 and 14 — flung suitcases stuffed with clothes and medicines into her old Citroen and drove straight to Moldova, the closest border, and then into Romania, where they traveled to Germany and caught a flight to Mexico. She said that they tried to enter legally twice, once by car and again by foot, and that officials rejected them both times, citing the Title 42 order.
“I was surprised that they don’t even want to listen,” she said. “I was trying to tell them that I have tests and I am vaccinated but they told me, ‘No, no, no, no, no.’”
She said she does not speak Spanish and was crying on the bridge in Mexico when lawyer Blaine Bookey spotted her. Bookey, the legal director of the Center for Gender and Refugee Studies at the University of California’s Hastings law school, was there with her students to aid Haitian migrants facing similar troubles.
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Bookey said Customs and Border Protection told her that they would consider admitting the Ukrainian family. They were planning to try again Thursday, she said, adding that shelters in Mexico are filled with other would-be refugees who are not eligible to enter.
“There’s families like this that are showing up at the border from all sorts of countries from similar levels of violence. They deserve process to apply for asylum,” Bookey said. “This case really brings it home for people how just problematic this policy is.”
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Read Maria’s full article at the link.
Rhetoric over action!
“Do as I say, not as I do!”
More cowardly performances from AG Garland and SG Prelogar who continue to “defend the indefensible,” putting politics over their constitutional duty to speak up for due process, human rights, racial justice, adherence to international conventions, and the rule of law.
The “COVID emergency” appears to be “over” everywhere in the U.S., even in areas with significant infection rates, EXCEPT for asylum seekers at the Southern Border who never were a major threat anyway.
“Saying no” to desperate Ukrainian mothers and children seeking refuge in the U.S. That’s ”law enforcement?” That’s how your tax dollars are being spent? Do these count as “border apprehensions?”
The Dem leaders are right to speak out. But, they waited far too long to do so. This travesty has been going on since Day 1 of the Biden Administration.
The only “hero” 🌟 here is Blaine Bookey and others like her who have the guts and courage to stand up for equal justice for all when politicos, judges, and public officials “tank!”
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Meanwhile, although the opposition to Biden’s scofflaw policy hasn’t restored the rule of law for most asylum seekers, it might have generated at least a modest reaction. CBS News reports that the CDC has revoked the (bogus) Title 42 authority to bar the entry of unaccompanied children seeking asylum.News: https://apple.news/Anfp9S-UAQFqT5PWRc-8u2A
In the early morning on Feb. 4, Jose boarded a packed airplane in Illinois filled with handcuffed immigrant detainees just like him. They were en route to another detention center in Oklahoma after theirs was ordered close. During the hour-and-35-minute flight, several people appeared ill, coughing and sniffling, but no one was able to socially distance. A few days later, Jose began experiencing the worst kind of sickness he had ever felt. He had contracted COVID-19. Jose joins the 1,126 other immigrants in Immigration and Customs Enforcement (ICE) detention who are currently being monitored and tested positive for the virus, representing a 395% surge in COVID-19 cases since January when there were only 285 reported cases.
“I was scared at one point. I’ve never been sick like that in my life,” Jose said. “I thought, ‘I’m going to die here.’”
Jose, who has asked to withhold his last name to protect his identity, is 25 years old and has lived in the U.S. since he came with his parents from Mexico at age seven; he has been in immigration detention for three months. He was originally detained in Illinois at McHenry County Jail, but when Illinois Gov. J.B. Pritzker signed the Illinois Way Forward Act, banning private and county-run immigration detention, Jose was one of 17 people from McHenry County Jail transferred to the Kay County Jail in Oklahoma.
“We really want to focus on getting releases and getting folks out of detention, instead of transfers to another facility,” said Gabriela Viera, advocacy manager at the Detention Watch Network. “We need to continue shutting down facilities until we are in a place where there are no more facilities for people to be transferred to.”
Another person in a different immigrant detention center, Jorge, was transferred from a facility in New York to Krome Detention Center in Homestead, Florida. According to advocates from the Queer Detainee Empowerment Project, he was exposed to COVID-19 and tested positive for the virus. Jorge has confirmed widespread reports that there is a complete disregard for the virus within the detention center, with no access to hand sanitizer or vaccines.
According to the National Immigrant Justice Center, both McHenry County Jail and the Jerome Combs Detention Center in Kankakee County experienced COVID-19 outbreaks among the ICE population at the time of these transfers. Advocates, public health experts, and members of Congress raised the alarm to Chicago Field Office Director Sylvie Renda in the days before the transfers about the risks of moving people to jails out of state under these circumstances, but ultimately, about 30 people were transferred from McHenry and Kankakee to Oklahoma, Indiana, and Texas.
“There was no distance between us,” Jose said. “When we got there, they just put us all in the dorm room.”
About four days after arriving in Oklahoma, Jose began feeling sick. His body ached, his sinuses were congested, and he had difficulty standing, especially during routine phone calls where there are no chairs provided. The extreme cold at night only worsened his symptoms, and he developed body shivers, chest pain, and a fever. He put in two requests to see the medic before he was finally tested for COVID-19 and confirmed that he had the virus.
“They’re not testing people regularly, and they’re not socially distancing, they’re not providing people with sufficient hygiene products,” said Diana Rashid, National Immigrant Justice Center’s managing attorney, who is representing Jose in his release request. “The spread is just going to continue.”
The medic gave him fever-reducing medication and vitamin D. He was returned to his 20-person pod and was told to remain in his bunk and try to self-isolate within his dorm room the size of a small basketball court.
“I thought they were going to move me to a cell alone,” Jose said. “But, they just left me in the room. I think I even got someone else sick.”
Jose is now recovering and feels better, but at least one other person has tested positive, with a total of nine positive cases in the detention center, according to ICE. But, Jose says that number may be even larger due to underreporting. When a person tests positive, they are put under quarantine for 10 days, meaning they cannot interact with other pods. Even worse, they are not taken out of their rooms for their court hearings, postponing an already delayed process and forcing them to stay in detention longer than necessary. According to Rashid, it would take about two to four weeks to get the first hearing in Chicago’s immigration court after a person is first detained.
“Everyone’s cases stalled for those who are in quarantine,” said Rashid.
Jose, who has been in quarantine for a majority of his detention, says that people are getting frustrated and desperate with the continued prolonging of their cases. Some are even considering signing the removal papers out of desperation.
“I just want to go ahead with my court proceedings and get out of here,” said Jose. “I want to make it to the light at the end of the tunnel.”
Immigration advocates hope more states will follow Illinois and close their detention centers. A total of 41 people were released from these jails during January in Illinois, but they believe that everyone, including Jose, should have been released on the current ICE enforcement memo guidelines. Advocates are also continuing to push for Congress to cut funding for immigration detention and enforcement and hope to invest in vital programs that uplift their communities instead, like health care, affordable housing, and education.
Prism is a BIPOC-led non-profit news outlet that centers the people, places, and issues currently underreported by national media. We’re committed to producing the kind of journalism that treats Black, Indigenous, and people of color, women, the LGBTQ+ community, and other invisibilized groups as the experts on our own lived experiences, our resilience, and our fights for justice. Sign up for our email list to get our stories in your inbox, and follow us on Twitter, Facebook, and Instagram.
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Assistant Attorney General, Civil Rights, Kristen Clarke looks for civil rights violations by state and local governments. Yet, she studiously ignores those being committed in broad daylight by her boss’s dysfunctional and biased Immigration Courts and the immigration detention empire he enables, supports, and defends.
As Alexandra’s report notes, one well-known result of prolonged detention in intentionally unsafe and substandard conditions is to “duress” individuals into giving up legal rights. Could there be a clearer violation of our Constitution going on right under Garland’s nose? I doubt it! But, no stand against these clear abuses. It’s as if “Gonzo” Sessions, “Billy the Bigot” Barr, and “Gauleiter” Stephen Miller were still calling the shots for Garland!
“The New American Gulag” (“NAG”) operates right under the noses of civil rights honcho Kristen Clarke and her boss AG Merrick Garland with their blessing. Indeed, they have “embedded courts” in the NAG! So much for the Biden Administration’s commitment to civil rights. GULAG PHOTO: Public Realm.
Almost from the “git go,” the Biden Administration has avoided dealing effectively and honestly with the “second (or third) class justice system” being inflicted by the DOJ, disproportionately targeting individuals of color and ethnic communities in America! It’s a rather glaring case of “do as I say, not as I do” that doesn’t appear to have escaped the notice of some Trump Article III judges. They turn the DOJ’s spineless “Dred Scottification” and “Miller Lite” actions and arguments back against them to undermine racial justice, fundamental fairness, and truth in all areas.
In a truly revolting🤮, yet highly revealing, interview with Savannah “Why Am I Giving Air Time To This Bad Dude” Guthrie on today’s Today Show, “Billy the Bigot” Barr made it clear that he considers corruption, lies, fascism, racism, and the final destruction of American democracy a “small price to pay” to fight the “real problem:” Progressive, humane, values-based governance in the common public interest.
But, somehow, Garland and others in the Biden Administration see no reasons to take a stand against this dangerous nonsense!
Remember folks, BTB is the overt racist who casually and glibly told Lester Holtthat “Black Lives Matter” is the “Big Lie!” He knows there will be no accountability for GOP enablers like him! Who’s the next “exclusive” for the NBC News crew, the Grand Dragon of the KKK? And, you can bet that if empowered again, the GOP will have no problem reviving the “White Nationalist Clown Show”🤡 @ DOJ.
That leaves the fight for the future of our nation to the NDPA and others who believe that America doesn’t necessarily have to spiral downhill into a “MAGAland” grave, ⚰️ but could actually become something better than we are today! It’s not a given that we can build a better nation and a better world, but it is a possibility.
Will the next generation stand up for a better future for everyone, or fulfill the nasty, backward-looking vision of lies, hate, and intolerance that BTB and the rest of the GOP right have mapped out for them?
Trump Judges Are Now a Threat to America’s National Security
The 5th Circuit let a lone judge order the deployment of unvaccinated SEALs. High-ranking officers say the decision puts the world at risk.
MARCH 1 2022 6:55 PM
On Monday, the 5th U.S. Circuit Court of Appeals issued a stunning decision transferring control over the Navy’s special operations forces from the commander-in-chief to a single federal judge in Texas. The 5th Circuit’s decision marks an astonishing infringement of President Joe Biden’s constitutional authority over the nation’s armed forces, directing him to follow the instructions of an unelected judge—rather than his own admirals—in deploying SEALs. High-ranking military personnel have testified under oath that this power grab constitutes a direct threat to the Navy’s operational abilities. As Russia invades Ukraine and declares a nuclear alert, Donald Trump’s judges are actively threatening America’s national security.
Like so many lawless cases in the 5th Circuit, this dispute began in the courtroom of U.S. District Judge Reed O’Connor. A notorious George W. Bush nominee, O’Connor is best known for attemptingto abolish the Affordable Care Act in 2018, then getting reversed by a 7–2 vote at the Supreme Court last year. So when 35 Navy Special Warfare service members refused to comply with Biden’s COVID-19 vaccine mandate for the armed forces, they brought their case to O’Connor. These service members—mostly SEALs, all represented by the far-right First Liberty Institute—claimed that their religious beliefs barred them from getting the shots. (Some said they heard “divine instruction not to receive the vaccine”; others asserted that the mRNA vaccines altered “the divine creation of their body by unnaturally inducing production of spike proteins.)
O’Connor predictably sided against Biden in January, granting a preliminary injunction of staggering scope on the grounds that the mandate violates the Religious Freedom Restoration Act. He awarded himself sweeping authority over the assignment of the plaintiffs, forcing the Navy to deploy them with operational units. When several plaintiffs were denied transfer to a duty station, they asked O’Connor to sanction the government for allegedly violating his order; he promptly ordered the Justice Department to explain why it should not be punished for failing to deploy these service members. (O’Connor has not yet decided whether to impose sanctions.)
As of today, this lone judge continues to oversee the plaintiffs’ assignments, forcing the Navy to train, equip, and deploy unvaccinated troops—with granular specificity as to their exact stations and duties.
Never before in the history of the United States has one district court judge exercised so much control over the armed forces. The Constitution assigns this authority to Congress and the president. There are certainly legal limits on executive discretion, including due process and constitutional safeguards against invidious discrimination. Right-wing lawyers have typically been loath to acknowledge any restrictions on the president’s war powers. Indeed, the conservative legal movement has endorsed a near-limitless vision of the commander-in-chief: Republican presidents, lawyers, and judges have argued that the Constitution allows the president to deploy troops without congressional approval, indefinitely detain enemy combatants, and exclude entire classes of immigrants from the country. But now it seems they draw the line at a simple vaccine requirement—even though all service members were already required to have at least nine vaccines upon enlistment.
Setting aside this hypocrisy, O’Connor’s order violated a fundamental principle of judicial restraint: Federal courts have long held that specific military assignments are never subject to judicial review. O’Connor appears to be the first judge ever to rule that, in fact, the courts can compel the armed forces to deploy a specific service member to a specific location to perform a specific duty. If his court were in a sane circuit, this unprecedented intrusion on the president’s power would be quashed almost instantly.
In an unsigned opinion that bristled with hostility against the COVID-19 vaccine, this panel agreed that the mandate violated religious liberty. Noting that most service members are vaccinated, the panel declared that the Navy lacks the “paramount interests” necessary to overcome anti-vaxxers’ religious objections. It questioned the “efficacy” of the vaccine, noting that “the USS Milwaukee was ‘sidelined’ in December 2021 by a COVID-19 outbreak despite having a fully vaccinated crew.” (Unmentioned was the fact that the crew’s vaccination status prevented even more transmission and serious illness.) The panel then found that the Navy will not be “irreparably harmed” by O’Connor’s order. And it concluded that the “public interest” lies in keeping the plaintiffs unvaccinated.
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Don’t expect this lackadaisical attitude from the next far-right GOP Attorney General to “own” the U.S. Immigration Courts — America’s “retail level” judiciary! PHOTO: Wikipedia Commons
There isn’t anything that Biden and the Dems can do in the short run to change the scofflaw trajectory and composition of the 5th and the Supremes.
But, there is a powerful, nationwide, precedent-setting“Trump-oriented retail level ‘judiciary’” — with trial and appellate divisions and control over millions of lives and futures — that they have the power to immediately reform: The U.S. Immigration Courts “housed” within the DOJ’s EOIR!
Too bad for the rule of law and the future of democracy, not to mention the millions of individual human lives and futures at stake, that Garland and his lieutenants aren’t “up to” the job!
Progressives shouldn’t expect the same lack of will, defective focus, and clueless complacency the next time the radical GOP right takes over ownership of the DOJ! When it comes to the interrelated problems of immigration, human rights, civil rights, and immigration judicial reform in the 21st Century, fecklessness and underperformance are exclusive characteristics of Dem Administrations!👎🏽☹️🤯
On the line are millions of futures. Undocumented immigrants who fear being split from their American children and spouses, people facing persecution and death in their countries of origin, or those being sent to countries they haven’t seen in decades are all fighting for fair play and often literally their lives in courts ill-equipped to do them justice.
“Let’s make it absolutely clear: due process is suffering,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. “There’s just no way around that.”
Chishti said he sees all the hallmarks of a strong administrative law system suffering in the nation’s immigration courts, which are housed under the Department of Justice in the executive branch of the federal government, not within the judicial branch.
“It is a system in crisis,” he said.
After Trump made hardline anti-immigration policies pivotal to his 2016 presidential campaign, he flooded courts with judges more inclined to order deportations, Reuters reported.
His administration hired so many new immigration judges so hastily that the American Bar Association warned of “under-qualified or potentially biased judges”, many of whom had no immigration experience.
And as officials such as then-attorney general Jeff Sessions made sweeping proclamations that “the vast majority of asylum claims are not valid”, judges simultaneously confronted performance metrics demanding they each race through at least 700 cases a year.
People ranging from asylum seekers forced to wait in Mexico to unaccompanied children crossing the border on foot, to longtime undocumented residents with families stateside end up appearing in court, often without attorneys to help them parse the country’s byzantine laws.
In a process smacking of a zip code lottery, one judge in New York may grant nearly 95% of asylum petitions while colleagues in Atlanta almost universally deny similar requests, creating a patchwork of standards.
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Read Alexandra’s full report at the link.
Garland’s stubbornly indolent approach to racial justice and due process at “Justice” endangers the lives of millions of vulnerable humans! PHOTO: Wikipedia Commons
Not news to Courtside readers or the millions whose lives and futures are caught up in Garland’s totally dysfunctional morass! And, that doesn’t even include hundreds of thousands of migrants orbited to danger under bogus “border closure” gimmicks that Garland and his ethically-challenged DOJ continue to defend!
Lips Sewn Shut Public Realm — Biden’s continuation of Trump’s cruel and illegal abrogation of asylum laws at the border, inappropriately defended by Garland’s DOJ, drives desperate people to do desperate things.
Nicole Narea Immigration Reporter Vox.com — Her clear and cogent analysis stands in sharp contrast to the Biden Administration’s often muddled, incoherent, and self-contradictory policies on human rights and racial justice on America.
Migrants stranded in southern Mexico because of US and Mexican border policies are taking increasingly drastic measures to draw attention to their plight. On Tuesday, a dozen migrants staged a protest in which they sewed their lips together and went on a hunger strike.
They are among the thousands staying in what has become known as an “open-air prison” in the city of Tapachula on Mexico’s southern border with Guatemala. Migrants there have struggled to access food and shelter, and have reported being preyed on by government officials.
Facing pressure to find ways to limit the number of migrants requesting entry to the United States, Mexican immigration authorities will not permit the migrants to leave the city unless they have some form of legal immigration status allowing them to move freely through the country, such as asylum. Hundreds tried to escape last month, but were intercepted and detained by Mexican immigration authorities.
. . . .
The US could share the load by resuming processing of migrants at its own borders and allowing them to pursue claims to humanitarian protection, as is their legal right. Instead, it has offloaded its immigration responsibilities onto its neighbor.
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As usual, Nicole provides timely, astute, accessible analysis of complex problems. I highly recommend her complete article at the link above.
The Attorney General is supposed to stand up for the rule of law, human rights, and to “just say no” to defending illegal and improper policies. As many of us pointed out during the scofflaw tenures of Sessions and Barr, the AG’s fealty is supposed to be to the Constitution and the laws of the United States, which include treaties that we have ratified and incorporated into our laws. As human rights and legal rights continue to be ignored, deflected, and degraded at our borders and in Immigration “Courts” that don’t operate as “courts” at all in any commonly understood meaning of the term, where is Garland?
Under Trump, asylum seekers sent to Mexico were often confused and adrift, unsure how to find legal help or return for their U.S. court appointments. They were visible on the streets of Mexican border cities and were easy targets for criminal gangs.
Marysol Castro, an attorney with El Paso’s Diocesan Migrant and Refugee Services who provides legal aid to asylum seekers in MPP, said the program’s return under Biden was a “relief” to some, “because otherwise if you go to the border you’re getting expelled” under Title 42.
Castro said new enrollees in MPP have court dates with fast-tracked hearings, unlike asylum seekers who were placed into the program under Trump and are still stuck in Mexico “with no hope.”
Mexican authorities say they received assurances from the Biden administration that migrants placed in MPP would have improved access to legal counsel. But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.
More than two-thirds of MPP returns under Biden have been sent to Ciudad Juárez, where they are provided secure transportation through a State Department contract with the U.N. International Organization for Migration. The Mexican government houses them in a shelter set up in a converted warehouse in an industrial area of the city.
“The shelters are more restrictive,” said Victor Hugo Lopez, a Mexican official who helps oversee the program. “The migrants can request permits to go outside, but we try to keep them safe by keeping them inside.”
Dana Graber Ladek, the IOM chief of mission in Mexico, said her organization continues to oppose MPP on principle, even as it’s working with both governments to ameliorate conditions for those sent back.
“It still has a tremendous amount of negative impacts,” she said. “It’s not how asylum is supposed to work.”
Representation remains a problem, but also an opportunity, just as Nolan Rappaport said on The Hill! Fortunately, Professor Michele Pistone has been thinking in advance and has built a “scalable” program (VIISTA-Villanova) that already is turning out qualified grads who can become accredited representatives and could quickly be expanded. By coordinating scheduling of hearings with nationwide NGOs and pro bono groups and “leveraging” resources that might be available to get pro bono resources to the border without overtaxing them elsewhere with “Aimless Docket Reshuffling,” (“ADR”), the representation problem can be solved.
One good sign is that cases of those likely to be granted, Venezuela, Nicaragua, Cuba, have been prioritized which can help move dockets forward while reducing resource-wasting appeals and petitions for review. But, there is much more “low hanging fruit” here to be harvested, in my view:
Also prioritize many Haitian cases, domestic violence cases from Latin America, and family-based cases which, if represented and documented, should be relatively straightforward grants;
Replace the BIA with judges who are asylum experts and will issue the necessary positive guidance on granting asylum that will move dockets, promote consistency, and reduce appeals;
Why ignore the “waiting for Godot” cases left over from Trump’s intentionally “built to fail” program? Get them represented and scheduled for hearings;
End the failing and totally misguided “Dedicated Dockets” at EOIR. Instead, treat the MPP as the “Dedicated Docket;”
To keep backlog from further building, use ideas from the “Chen-Markowitz” plan to remove two “hopelessly aged” cases from the EOIR backlog docket for every MPP case “prioritized.” This could also free up some representation time. Go from ADRto “Rational Docket Management” (“RDM”), closely coordinated with the private bar and DHS!
Finally, keep in mind that directly contrary to the babbling of Paxton and other ignorant GOP White Nationalists, the purpose of asylum law is protection, not rejection! And, the generous standard of proof for asylum, recognized by the Supremes 35years ago, combined with existing regulatory presumptions of future persecution based on past persecution should, if honestly and expertly applied, favor asylum applicants (even if that hasn’t been true in practice). The U.S. legal system is supposed to be about guaranteeing due process fundamental fairness, and achieving justice, not to serve as a “deterrent,” “punishment,” or “enforcement tool.”
In the case of MPP, everyone in the program has already passed initial credible fear or reasonable fear screening!That means with well-qualified Immigration Judges possessing asylum expertise, new expert BIA judges, competent representation, and a focus on insuring justice by DHS Counsel, many, probably the majority of the MPP cases should be grants of asylum of other protection.
That will help clean out the camps, while addressing the serious “immigration deficit” that was engineered by Trump and Miller. It also allows refugees to become contributing members of our society, rather than rotting away and squandering their human potential in squalid camps in Mexico!
To date, most MPP cases havebeen denied with questionable due process, little obvious expertise, and a complete lack of positive, practical guidance by the BIA. This strongly suggests severe shortcomings and bias in the DHS/DOJ implementation of Remain in Mexico (“MPP”). But, it’s never too late to do better!
The Post article suggests that there have been some modest improvements in MPP under Biden. It’s time to take those to another level! The ideas and tools are out there. All that’s missing is the dynamic leadership, teamwork, and competent, creative., due-process-focused focused management.
We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.
One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.
Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.
Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.
As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.
During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.
We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.
Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.
immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good
By failing miserably on the first, the Administration has found itself flailing and failing on the rest.
Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.
Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.
“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?
How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR.
As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights!https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland
Folks, this is NOT “good government.” Not by a long shot!
There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR.
Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!
Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.”
But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!
I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but,EOIR must be the starting place for fixing them. There is no more time to lose!
It’s time for Garland to start worrying about running “America’s most unfair and dysfunctional courts,” defending grotesque human rights violations and scofflaw policies by his own Administration, and a DOJ that takes untenable and embarrassingly bad legal positions before the Federal Courts. Much as he’d like to pretend that “immigration doesn’t matter,” or expressed a different way “human lives don’t matter if they are only migrants,” he’s starting to get pressure from Congress, the Article IIIs, and NGOs to fix EOIR and “shape up” the DOJ’s lousy, sometimes unprofessional and ethically questionable, approach to immigration, human rights, and racial justice issues. Justice for immigrants is the starting point for achieving racial justice in America. PHOTO: Wikipedia Commons
Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!
(CNN)The Biden administration, unable to return an increasing number of Venezuelans arrested at the US-Mexico border to their home country, is now sending those migrants to Colombia if they previously resided there, according to two Homeland Security officials.
White House officials have grown increasingly concerned about the large numbers of single adults continuing to cross the US southern border, particularly from countries that Mexico won’t accept under a controversial Trump-era policy, two sources familiar with discussions said.
The flights of Venezuelans to Colombia, which have not been previously reported, marks another effort by the administration to try to stem the flow of migrants, pushing those who arrive further away from the US-Mexico border including those seeking asylum.
In December, US Customs and Border Protection encountered more than 13,000 single adults from Venezuela on the US southern border, compared with 96 in December 2020, according to agency data.
A humanitarian crisis and political instability have taken hold of Venezuela in recent years. Around 6 million people have fled the country, according to the United Nations, usually fleeing to other parts of Latin America which have also struggled during the pandemic.
There’s been bipartisan acknowledgment of the deteriorating situation in Venezuela. Last year, Sens. Marco Rubio, a Republican, and Bob Menendez, a Democrat, introduced a Senate resolution expressing alarm over the situation in the country.
Colombia also granted temporary legal status to Venezuelans who had fled there, allowing them to legally work in the country. But for those who opted to journey to the US-Mexico border to seek protections in the US, expulsion to Colombia now puts them thousands of miles away from the possibility of claiming asylum in the US.
The handling of the US-Mexico border has dogged the Biden administration since the early days of Joe Biden’s presidency as a growing number of migrants journey to the United States, fleeing deteriorating conditions in the western hemisphere. Republicans have recently seized on the releases of migrants — some of whom can’t be expelled because of their nationality — citing it as another example of what they describe as the administration’s poor management of the border.
Under a public health authority, known as Title 42, authorities can swiftly remove migrants encountered at the US southern border, effectively barring those seeking asylum from doing so and marking an unprecedented departure from previous protocol. The authority was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated.
The White House has repeatedly referred to the Centers for Disease Control and Prevention on the future of the policy, saying the agency deems it necessary given the Delta and Omicron variants.
Last Thursday, the Department of Homeland Security returned two Venezuelan nationals to Colombia, where they had previously resided, the department told CNN, adding that flights to Colombia are expected to take place “on a regular basis.”
“As part of the United States COVID-19 mitigation efforts, DHS continues to enforce CDC’s Title 42 public health authority with all individuals encountered at the Southwest border. However, DHS’s ability to expel individuals may be limited for several reasons, including Mexico’s ability and capacity to receive individuals of certain nationalities,” DHS said in a statement, adding that the department has removed migrants to third countries in the region where they had lived or had status.
DHS has also acknowledged the precarious situation in Venezuela by granting a form of humanitarian relief for Venezuelans already in the United States.
Still, the Biden administration has continued to rely on the public health authority and recently defended it in court — a move that received criticism from immigrant advocates and Democratic lawmakers. The latest decision to expel migrants from Venezuela — a country in crisis — to Colombia reveals a further dependence on the public health authority amid a growing number of Venezuelans arriving at the US-Mexico border.
In December, US Customs and Border Protection encountered 24,819 Venezuelans at the US southern border including single adults, families and minors, up from the previous month and continuing an increasing trend. As a point of comparison, in December 2020, CBP encountered only around 200 Venezuelan migrants, according to agency data.
While tens of thousands of migrants have been turned away at the US-Mexico border, some, like South Americans, aren’t accepted by Mexico and therefore those nationals largely can’t be expelled. Under the public health authority, DHS has removed migrants to Guatemala, Honduras, El Salvador and Brazil.
Some migrants from Venezuela crossed the border in Yuma, Arizona — often flying to an airport in Mexico and then crossing at a gap along the Colorado River, cutting the journey down to just days. It’s the most viable option for many Venezuelans and Brazilians, for example, who can’t obtain a visa that allows them to work in the US — or can’t afford the years-long wait for the legal immigration process. Mexico recently put new visa restrictions in place for Venezuelans traveling to Mexico.
The US has previously taken measures to try to lower the number of migrants at the US-Mexico border. Last year, the administration started flying migrants apprehended at the southern border and subject to the Trump-era border policy linked to the pandemic to the interior of Mexico.
Forced migration is real, no matter what fictions and myths Administrations of both parties use to deny it.
Pretending otherwise, and that lawless deportations and “deterrence” will materially change the forces that drive it, is both immoral and ultimately futile.
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
