🏴‍☠️SUPREMES’ GOP MAJ. SLAMS GULAG DOOR SHUT ON REFUGEES IN “WITHHOLDING ONLY PROCEEDINGS” 👎🏽 — “NO BOND HEARINGS FOR YOU, ALIENS!” — Johnson v. Guzmán Chavez (6-3) — Oh, To Be A “Pipeline Builder” Endowed With Legal & Human Rights That Even Elite GOP Supremes Will Recognize!

Robert Barnes
Robert Barnes
Supreme Court Reporter
Washington Post

https://www.washingtonpost.com/politics/courts_law/supreme-court-deported-immigrants-penneast-pipeline/2021/06/29/3e83164e-d8dc-11eb-8fb8-aea56b785b00_story.html

This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

By Robert Barnes

June 29 at 5:22 PM ET

. . . .

In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.

At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.

One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.

Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.

The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.

The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.

Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”

The case is Johnson v. Guzman Chavez.

. . . .

Here’s the “full text” of the decision:

19-897_c07d

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

Nice summary, Robert! You can read the rest of Barnes’s report at the link. Indeed, Justice Breyer’s cogent question quoted in the article remains unanswered by the wooden legal gobbledygook in the majority decision, devoid of much understanding of how the dysfunctional Immigration Courts and the DHS “New American Gulag” actually operate and dismissive of what it actually means to be a refugee seeking to exercise legal rights in today’s world.

At issue: The right of non-criminal foreign nationals who have established a “reasonable fear” of persecution or torture if deported to apply for bond pending Immigration Court hearings on the merits of their cases. Getting a bond hearing before an Immigration Judge does not in any way guarantee release; just that the decision to detain or release on bond will be based on the individual facts and circumstances. Individuals released from detention have a much better chance of obtaining counsel and gathering the documentation necessary to win their cases. They are also much less likely to be “coerced” by DHS detention into surrendering viable claims and appeal rights.

Majority’s response: These “aliens” have neither rights nor humanity that any life-tenured GOP-appointed judge is bound to respect.

Alternative: There is a readily available alternative statutory interpretation, adopted by the 4th Circuit and the dissent, that would recognize the human and legal rights of vulnerable refugees seeking legal protection and give them hearings on continuing custody in substandard conditions (in some instances, conditions in the “DHS New American Gulag” fall well below those that would be imposed on convicted felons).

You can’t win ‘em all: The Round Table was one of many organizations filing an amicus brief on behalf of the refugees and in support of the position adopted by the 4th Circuit and the dissent. While we were unsuccessful on this one, at least we are on the “right side of history.” 

Creative suggestion: Detainees should incorporate, perhaps as a pipeline company, or better yet a gun rights’ group, so that they would have legal rights and be treated as “persons” (e.g., “humans”) by the Supremes’ GOP majority.

Next steps:

  • Advocates should prevail on the Biden Administration to change the regulations to give this limited subclass of applicants for protection a chance to seek bond before an Immigration Judge;
  • Advocates should keep up the pressure on the Biden Administration and Garland to appoint better judges at EOIR: progressive practical experts, who know how to grant legal protection efficiently and fairly and who will establish appropriate legal precedents to help these cases move through the EOIR system on the merits in a timely and fundamentally fair manner consistent with due process. The length of time it takes “Withholding Only” cases to move through the Immigration Courts has lots to do with: unfair, coercive detention practices by DHS; poor judging and bad precedents at EOIR; incompetent “judicial administration” and politicized “Aimless Docket Reshuffling” @ EOIR by DOJ politicos and their EOIR “retainers.”

Long term solution:

  • Support and vote for progressive legislators who will revise the immigration laws to do away with the unnecessary and wasteful  “New American Gulag;”
  • Vote progressive candidates for President and the Senate: political officials committed to putting better Federal Judges on the bench at all levels — “practical scholars” with real experience representing the most vulnerable in society and who will tirelessly enforce due process, equal protection, human rights, and fundamental fairness for all persons regardless of race, religion, or status; judges who understand and will seriously reflect on the “real life” human consequences of their decisions.  Better judges for a better America!

🇺🇸Due Process Forever!

PWS

06-30-21

HISTORY: YOUNGER THEN THAN NOW! — “Sir Jeffrey” Chase & Me @ The International Association of Refugee Law Judges’ Seminar in Nijmegen, The Netherlands, 1997

“Sir Jeffrey and Me
“Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

Well, we’re not as young as we were. But, we’re still working together to raise awareness and advance the principles of the U.N.Convention & Protocol on the Status of Refugees and to restore due process and fundamental fairness to the dysfunctional Immigration Courts through all of our amazing colleagues on the Round Table of Former Immigration Judges.

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

 

🇺🇸Due Process Forever!

PWS

06-27-21

“DUH” OF THE DAY: GOP WHITE NATIONALIST RACISM & STUPIDITY, BIDEN ADMINISTRATION BUMBLING LEAD TO ONGOING BORDER CHAOS: “For people like Medina, neither restrictive immigration policies nor dangerous journeys through several countries, border walls, or even statements from politicians deter them from seeking to rebuild their lives in the United States.”

Maria Ramos Pacheco
Maria Ramos Pacheco
Bilingual Reporter
Dallas Morning News
PHOTO: ElPasomatters.com

https://www.dallasnews.com/news/immigration/2021/06/25/threat-of-death-in-their-homelands-continues-to-push-migrants-toward-us-mexico-border/

Maria Ramos Pacheco reports for the Dallas Morning News:

CIUDAD JUÁREZ, Mexico — While Vice President Kamala Harris said Friday the goal of her trip to El Paso was to understand the “root causes” of the rising influx of migrants from recent months, just across the border Honduran migrant Manuel Medina had a simple explanation for why thousands of people from other countries will continue to try to reach the United States: To stay alive while fleeing countries where their families are threatened by crime and violence.

“I did not leave my country and my wife because I wanted to. [Rising] crime forced me to leave everything; the only thing I want is for my family and me to be safe,” said Medina, 37, who left Honduras in May 2019 after receiving threats from gang members.

Amid a chorus of criticism coming mainly from Republican politicians, Harris made her first trip to the U.S. Southern border flanked by the Secretary of Homeland Security, Alejandro Mayorkas; Sen. Dick Durbin, D- Ill; and El Paso Rep. Verónica Escobar.

Amid a chorus of criticism coming mainly from Republican politicians, Harris made her first trip to the U.S. Southern border flanked by the Secretary of Homeland Security, Alejandro MayorkasSen.

For people like Medina, neither restrictive immigration policies nor dangerous journeys through several countries, border walls, or even statements from politicians deter them from seeking to rebuild their lives in the United States.

Medina has lived for two years in this city’s El Buen Samaritano shelter, managed by a religious organization, along with his 15-year-old son Nahúm Medina. Their asylum petition was initially rejected in 2019 and he stayed in Ciudad Juárez under the Migrants Protection Protocols, waiting for a second chance.

The MPP or “Remain in Mexico” program was created in 2019 by the Trump administration, which forced people seeking asylum to remain in Mexico. As of May, there were 71,002 active cases.

. . . .

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

Read the rest of Maria’s article at the link.

Desperate people do desperate things! Duh!

You’ve heard it before on Courtside:

https://immigrationcourtside.com/2021/06/24/%e2%9a%a0%ef%b8%8f%f0%9f%9a%b8v-p-harris-is-going-to-the-border-she-should-talk-with-the-real-victims-of-her-governments-illegal-wrong-headed-immoral-and-ineffective-border-deterrence-p/

Indeed, since the day of inception in Dec. 2016, Courtside has been very consistent in speaking truth to bigots and misguided inept policy makers:   

https://immigrationcourtside.com/2016/12/31/family-detention-raids-expediting-cases-fails-to-deter-scared-central-americans/

Restrictionism, racism, nativism, cruelty, and scofflaw behavior will only continue to make things worse. And, AG Merick Garland, staffing your “courts” with “Miller Lite” holdovers and Trump toadies won’t stop the downward spiral of American justice on your watch!       

🇺🇸Due Process Forever!

PWS

06-27-21

🇺🇸⚖️🗽DT-21 SPEAKS AGAIN! — All The News “They” Don’t Want You To Hear From Deep Inside The Bowels Of The Dysfunctional EOIR Bureaucracy! — Garland Moves In Slow-Mo As Democracy Crumbles & Voldemort’s Power Grows!🆘

Deep Throat
Deep Throat
Parking Garage
Is DOJ/EOIR “Management” staking out every one of these in the DELMARVA area to catch “DT-21?” Is that why they don’t have time to reform EOIR?  — Creative Commons
EOIR Tower
The EOIR Tower in Falls Church might appear shiny from the outside, but inside it’s still just about as opaque as the lives of those caught up in Garland’s Star Chambers!

1) The Richmond video “court” is opening soon to hear more cases in secret without public access.

2) Several IJs working from home are now hearing cases by VTC from their residences. But, there’s no provision for those hearings to be open to the public contrary to the regulations. More VTC just means more problems.

3) EOIR has hired 10 or 11 new IJs but hasn’t disclosed the names publicly. Can “Dandy Dan” Kowalski & other news-hounds smoke out the names again?

4) At least one inexcusable, major setback on long overdue progressive judicial leadership @ EOIR! Unfortunately, the AG decided not to remove Wetmore as Chairman and his probation period has passed. 

So, are we stuck with a Miller/Barr/Trump toady “plant” in charge of a “court” that probably has more to do with racial and gender justice in America than any “judicial” (using the term lightly) body short of the Supremes and that “gets it wrong” — often dead wrong — in well-publicized bad opinions “outed” by the Article IIIs on a regular basis?  No, doesn’t make sense! 

Progressives, the NDPA, and anybody who cares about due process and equal justice in America should be raising hell with the Administration until we get the change we voted for! 

“Passing probation” doesn’t guarantee anyone a particular SES position or a quasi-judicial position at EOIR. Just ask legions of past DOJ “Hallwalkers!” 

Garland was sitting around the Ivory Tower while the NDPA was fighting in the trenches for human lives and the survival of Americans democracy. That’s a big reason why Garland, Biden, Harris, and the rest of the Administration have their jobs now! Don’t stand for an immigration bureaucracy and justice system controlled and populated by disciples and plants of “Gauleiter Miller,” “Billy the Bigot,” and “Gonzo Apocalypto.”

5) On the much brighter side, Courtside has confirmed from several sources that the long-extinguished flames of due process, fundamental fairness, best practices, humanity, compassion, and intellectual courage should soon be re-ignited in the opaque darkness and “rabbit warrens” of the 24th Floor of the Tower where the BIA hangs out. 

Will the “walls  of bias and intentional exclusion of the best and brightest American justice has to offer from outside government” that has plagued the BIA and demeaned American Justice for the past two decades finally be cracked? Will that crack become a breach that eventually becomes a flood of scholarship, fairness, efficiency, respect, and teamwork that will transform a “Tower of Darkness” in to a “Beacon of Justice” that can be seen from coast to coast?

6) Stay tuned! And, keep demanding better, much much better, from Garland, Monaco, Gupta, Clarke, and the rest of the Biden immigration, civil rights, human bureaucracy at DOJ! They seem to think that “elections only have consequences” in immigration and human rights when the GOP wins. 

Evidently, they view themselves as above the fray just treating EOIR like another piece of their dysfunctional DOJ bureaucracy. Nothing very proactive or bold! Just let the abuses be unearthed by others and dribble out a bit at a time.Then do a little damage control and “message massaging.” 

That’s a prime reason why, despite representing the majority of Americans, and having access to better ideas, the Dems have had trouble governing, retaining power, and turning their agenda into action over the past half-century!  It’s also a prime reason why humanity is suffering in our dysfunctional Immigration “Courts,” in a broken DHS that continues to run Gulags and has shamefully retaliated against NDPA members fighting for justice, and in the inexcusable human carnage at our borders fueled by the DOJ’s participation in corruption, intellectual dishonesty, and the illegal suspension of the rule of law! 150 days in and still no functioning asylum system? Come on man!

Five years ago, after retiring, I tried to tell the Clinton folks that not appointing a progressive immigration/human rights expert to be Attorney General would be a huge mistake. Obviously, that became a “moot point” in November 2016.

Ironically, however, the Trump Administration got my message in a negative way. They turned the DOJ over to radical White Nationalist nativists determined to use the negative power of bureaucracy and immigration to batter down the foundations of Americans democracy and spread the gospel of racism, misogyny, and unbridled xenophobia. And,  it worked! Big time!

I’m certainly not the only one who vainly tried to tell the Biden Administration NOT to repeat the same mistakes at Justice. Better candidates for AG, folks like the Castro brothers, Chairman Zoe Lofgren, Rep. Jamie Ruskin, and Dean Kevin Johnson were out there. Real, courageous, dedicated progressive leaders and due process mavens! Folks who would have shaken up EOIR, gotten rid of the deadwood and incompetence, cut the unnecessary backlog, instituted best practices, and reestablished a robust, functioning asylum system at the border by now! Folks with the proven backbone to stand up for justice, against all threats, internal and external! Folks who would take seriously their oaths “to protect the Constitution against all enemies, foreign and domestic!”

The slow and ineffectual pace of personnel and other achievable internal reforms at EOIR continues to be an insult to those who are the future of American democracy — if American democracy indeed has a future! That’s still up in the air!

We can see the effect of delay in making the necessary bold progressive immigration and human rights reforms in VP Harris’s foundering performance at the border. No rule of law, no program for fairly and efficiently adjudicating asylum, no open ports of entry, no coherent message on the realities of human migration, no order, kids in bad placements, Border Patrol agents “apprehending” folks who only want their prompt, fair asylum screening from Asylum Officers! What an (avoidable) mess!

The nativist opposition hasn’t folded their tents! Stephen Miller & co. are energized by Garland’s failure to heed the advice of and bring in the expertise of progressives at EOIR. He’s like “Voldemort” — every day Garland dawdles, Miller gets stronger.

Voldemort
His power grows every day that Garland dawdles and progressives find themselves still playing defense, rather than running the show under tone deaf “management” that owes its very existence to them and their support! After 8 years of “lockout” by Obama — yielding a quite predictable human rights and legal disaster — are the folks who revived democracy and kept the fires burning in Immigraton Court REALLY willing to put up with another four years of THIS? Are Dems REALLY THIS DUMB (not to mention ungrateful)? 
By Blanca Toth, OLYMPUS DIGITAL CAMERA
Creative Commons

Keep the outrage and opposition to intransigence and failure to bring reform to EOIR coming! NDPRers, my time on the stage is winding down! It’s YOUR future and YOUR CHILDREN’S future on the line today! 

Opaque procedures, regressive leadership, secret hearings, Miller cronies, bad precedents, lack of progressive jurisprudence, Article III embarrassments and travesties, mindlessly “expedited” dockets, Aimless Docket Reshuffling, idiotic due-process denying production quotas and “performance work plans,” contempt for advocates and experts, defense of the indefensible, and treating human lives and advocates as “fungible” at EOIR are NOT OK!

Keep the resistance building! Be outraged! Turn up the decibels until even Garland and the West Wing can’t ignore the uproar!

🇺🇸Due Process Forever!

PWS

06-25-21

⚠️🚸V.P. HARRIS IS GOING TO THE BORDER: SHE SHOULD TALK WITH THE REAL VICTIMS OF HER GOVERNMENT’S, ILLEGAL, WRONG-HEADED, IMMORAL, AND INEFFECTIVE BORDER DETERRENCE POLICIES — Avoid The CBP “Dog & Pony Show,” & The GOP’s Cowardly “Gunboat Cruz” — Cross Over The Border, View The Human Rights Catastrophe We Have Created, Understand People Have A Right To Seek Legal Refuge, & Fix The Legal Asylum System At Ports Of Entry & Immigration Courts With Humane, Practical Experts! — “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.” — Stop Blaming, Shaming, & Dehumanizing The Victims & Start Fixing Our Asylum System & Solving The Problems That Force Them To Migrate!

“Floaters”
“Sadly, over the last two decades the US has been unable to get beyond this vision of ‘deterrence’ of legal asylum seekers.“ — 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)
Vice President Kamala Harris
Vice President Kamala D. Harris
Vice President of the United States. — “So far, she hasn’t gotten beyond the mistakes of the past, either. Taking a tour with CBP won’t help.”
(Official Senate Photo)

https://www.americamagazine.org/politics-society/2021/06/17/vice-president-kamala-harris-us-mexico-border-immigration-unaccompanied

J.D. Long-Garcia writes in America Magazine:

Last week, Ms. Harris traveled to Guatemala to meet with President Alejandro Giammattei and expressed the Biden administration’s goal to “help Guatelmalans find hope at home.” During a press conference on June 7, she told Guatemalans thinking of making the journey north to the United States: “Do not come. Do not come.”

pastedGraphic.png“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”

If Ms. Harris does travel to the border, Father Murphy said, she should be sure to make a visit to the Mexican side. “If she just stays on her side, she’s not going to find much,” he said.

In Tijuana, Ms. Harris would see a camp of 2,000 asylum seekers near the port of entry, Father Murphy said. “If she looked a little further, she would see the people who are victims of violence in Tijuana and Mexicali and other places,” he said. Migrants may be eager to escape bad situations in their home countries, Father Murphy said, but they often do not understand how difficult conditions at the border are “until they’re stuck in the middle of [a border city] with no place to go.”

“You can’t understand [border realities] by talking to government officials. You have to talk to the people who are working with migrants and hear about the suffering.”

At diminished capacity because of the pandemic, migrant shelters are full. The United States has started to accept some vulnerable people, like families with children with an illness or those being persecuted because of their sexual orientation, Father Murphy said. But there are also hundreds deported every day.

He believes if the vice president did decide to visit the border, it would be worth her while. “You can’t understand [border realities] by talking to government officials,” Father Murphy said. “You have to talk to the people who are working with migrants and hear about the suffering.”

. . . .

Donald M. Kerwin
Donald M. Kerwin
Executive Director
Center for Migration Studies

Donald Kerwin, the executive director of the Center for Migration Studies in New York, also noted that people have a right not to migrate—to stay in their home country. He sees immigration policy as an arena for a fruitful convergence of Catholic social teaching, international law and contemporary human rights principles.

The Biden administration’s recognition of the forces that drive migration should be applauded, but it can address root causes while re-establishing humane asylum policies at the border.

“States are responsible for ensuring that people can flourish at home,” he said. “But it’s an empty right at this point in many communities in the Northern Triangle countries. They’re facing impossible conditions, caused by natural disasters, climate change, gang violence and extraordinary poverty. So people have a right to flee those impossible conditions and seek lives that are worthy of human dignity. In some cases, that means leaving their countries.”

When they do leave their home countries, people have the right to seek protection wherever they can find it, Mr. Kerwin said. “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.”

The United States needs a functioning refugee resettlement system, an asylum system and robust humanitarian programs to address the conditions in Central America that are driving people to migrate, he said. “They’re not in place right now,” Mr. Kerwin said, “and until they are in place, people will reluctantly, at a terrible cost…continue to migrate.”

If Ms. Harris visits the border, Mr. Kerwin suggested she speak with migrants that have entered the United States, starting with the children. “Find out why they’ve come, what drove them to the United States and also see what their situation is currently, in often overcrowded facilities,” he said. “At that point, it would be clear as day that these folks are not a problem. These folks fled terrible problems, but they themselves are not the problem.”

Earlier this month, more than 20 bishops, Vatican representatives and leaders of Catholic organizations met for an emergency immigration meeting at Mundelein Seminary, outside of Chicago. Mr. Kerwin, who attended the meeting, said organizers displayed notes written by immigrant children, often addressed to God.

“It’s clear from reading these notes that these are lovely children, who miss their parents and worry about them and are in difficult situations that are not of their own making. And that the United States should do right by them,” he said. “And the right thing is to protect them and reunify them with family members.”

Chloe Gunther, America intern, contributed to this story.

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

Read the full article at the link.

Politicians of both parties are averse to the truth. They don’t have the courage and backbone for it! But the truth is quite simple, if somewhat “inconvenient.”  

Unless and until we can solve the problems driving refugees to flee the Northern Triangle, we will have to take more of them. We should welcome them through an orderly legal system, including a robust, properly staffed, and honestly administered legal refugee and asylum system. 

Alternatively, we could continue our current policies of immorally and illegally killing some on the journey, “snuffing” some in the desert (where their bodies might never be found and “counted”), and enriching smugglers and cartels who will eventually get many determined survivors into the interior. 

There, they will join our highly exploitable, yet politically expedient for both parties (for differing reasons), “extralegal population.” A  limited number will be “in the wrong place at the wrong time” and be arbitrarily removed by ICE, usually at costs that far exceed any demonstrable benefits. Even fewer will commit misconduct leading to their arrest and removal.

But the bulk of them will blend in somehow and do what’s necessary for themselves and their families to survive, as has been happening for decades and generations. They will also enrich and improve our nation in ways both predictable and unpredictable. Some will eventually find it possible and advantageous to return to their nations of origin, most won’t. 

It would be far better for both the migrants and our nation, not to mention humanity as a whole, if we included the bulk of those forced to come here in our legal immigration system. But, whether we are enlightened enough “to do it the right way” or not, they will come as long as the alternatives are starvation, death, unspeakable abuse, and unending despair. 

Migration is both our oldest and most persistent human phenomenon and an essential survival skill for humanity. It’s going to take more than inane walls, cruel and illegal imprisonment in American Gulags, unworkable laws, mindless, yet expensive, enforcement, nativist rhetoric, bad judges, and cowardly politicians sending “don’t come” messages to make them “die in place.” Our politicians might be not be bright or brave enough to face reality — but, I guarantee that the forced migrants we like to dehumanize and look down upon are much smarter, braver, more aware, and far more creative, adaptable, and capable than we think!

🇺🇸🗽⚖️Due Process Forever!

PWS

06-24-21

 

THE GIBSON REPORT — 06-21-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group! — Lots Of Interesting Items Under “Top News,” Some Good, Some Not So Much!

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

TOP NEWS

 

The Justice Department Overturns Policy That Limited Asylum For Survivors Of Violence

NPR: In a pair of decisions announced Wednesday, Attorney General Merrick Garland is vacating several controversial legal rulings issued by his predecessors — in effect, restoring the possibility of asylum protections for women fleeing from domestic violence in other countries, and families targeted by violent gangs.

 

Advocates mark DACA’s 9th anniversary, urge Congress to act

AP: A pending federal court case in Texas is challenging whether the program’s creation was legal. If the challenge is successful, it could end protections, adding urgency to those pressing Congress for a more lasting solution.

 

White House eyes ending migrant family expulsion by July 31

Axios: The policy known as Title 42 has resulted in tens of thousands of migrant family members, including asylum seekers, being sent away — as well as thousands of kids then separating from their families to cross into the United States alone.

 

U.S. speeds visas for vulnerable Afghans as pullout looms, but Congress wants more

Reuters: As the U.S. military completes its withdrawal from Afghanistan in the coming weeks, the Biden administration says it is adding staff to hurry up the visa process for Afghans who worked for the U.S. government and want to flee to avoid Taliban reprisals.

 

NYC’s Latino Leaders Split Over the Best Mayoral Candidate for Immigrants

CityLimits: As they continue on the campaign trail, contenders of both parties who remain in the race speak openly about citizens’ concerns, such as crime, police reform, affordable housing, education, health, jobs and the Big Apple’s recovery from the COVID-19 pandemic. Latino voters, however, still feel that they have not heard concrete proposals regarding immigrants.

 

ICE Discussed Punishing Immigrant Advocates For Peaceful Protests

Intercept: Internal ICE records and emails, as well as a deposition by an ICE officer in a court case, show the agency referring to an advocacy group as a “known adversary” and closely surveilling the immigration and civil rights activists’ activities, both online and in person.

 

Desperate for Covid Care, Undocumented Immigrants Resort to Unproven Drugs

NYT: Health and consumer protection agencies have repeatedly warned that several of these treatments, as well as vitamin infusions and expensive injections of “peptide therapies” sold at alternative wellness clinics for more than $1,000, are not supported by reliable scientific evidence.

 

Biden Signals Big Changes to Legal Immigration and Asylum Law with Spring Regulatory Agenda

AIC: Although not every proposed rule put on the agenda will end up being finalized, the agenda signals an administration’s priorities and its goals for pursuing changes to our immigration system through executive action.

 

LITIGATION/CASELAW/RULES/MEMOS

 

DOJ Vacates Matter of A-B- and Matter of A-B-II

DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) AILA Doc. No. 21061639

 

DOJ Vacates Matter of L-E-A- II

DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)AILA Doc. No. 21061640

 

OIL Memo: Impact of Attorney General decisions in Matter of L-E-A-and Matter of A-B-

AAG: Please review any pending cases that may be affected by the Attorney General’s vacatur of L-E-A-II, A-B-I,  and A-B-II and take appropriate steps in light of that development, including seeking remands in appropriate cases to allow the Board to reconsider asylum claims based on this change in the law.

 

CA2 Certifies Question of Whether New York Petit Larceny Constitutes a CIMT to State Court of Appeals

The court certified to New York State Court of Appeals the question of whether an intent to “appropriate” property requires an intent to deprive the owner of property permanently or under circumstances where their property rights are substantially eroded. (Ferreiras Veloz v. Garland, 6/7/21) AILA Doc. No. 21061635

 

3rd Circ. Won’t Halt Deportation Of Jamaican Woman

Law360: A split Third Circuit panel on Thursday refused to halt deportation proceedings for a Jamaican woman who pled guilty to defrauding the elderly in a lottery scam, ruling in a precedential decision that she didn’t prove she was likely to face retribution from the scam’s ringleader if sent back to her native country.

 

CA5 Says Government May Revoke Citizenship of Former Salvadoran Military Officer Involved in Extrajudicial Killings

The court held that although the defendant, a former military officer, refused to shoot civilians during the Salvadorian Civil War, the fact that he “assisted” and “participated in the commission of” extrajudicial killings permitted his denaturalization. (United States v. Vasquez, 6/11/21) AILA Doc. No. 21061737

 

CA6 Says IJs and BIA Have Authority to Grant Administrative Closure to Allow Noncitizens to Apply for Provisional Unlawful Presence Waiver

The court concluded that 8 CFR §212.7(e)(4)(iii), together with 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. (Garcia-DeLeon v. Garland, 6/4/21) AILA Doc. No. 21061634

 

CA6 Holds That Petitioner Failed to Show Prejudice Due to Immigration Court’s Procedural Error of Improper Change of Venue

The court found that while the Memphis Immigration Court violated procedural rules in transferring the petitioner’s hearing to the Louisville Immigration Court, that violation was a procedural question relating to venue, not jurisdiction to hear the case. (Tobias-Chaves v. Garland, 6/8/21) AILA Doc. No. 21061636

 

CA9 Remands Case Involving Defective NTA Under Pereira in Light of Recent Supreme Court Decision

The court granted the petition for review and remanded the case to the BIA in light of the U.S. Supreme Court’s recent decision in Niz-Chavez v. Garland. (Lorenzo Lopez v. Garland, 6/8/21) AILA Doc. No. 21061643

 

CA9 Reverses Denial of Deferral of Removal Where BIA Improperly Engaged in De Novo Review

The court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error, and found that the record established that the petitioner had met her burden to show it was more likely than not she would be tortured if removed to Mexico. (Soto-Soto v. Garland, 6/11/21) AILA Doc. No. 21061644

 

10th Circ. Says Samoan Citizenship Question Not For Courts

Law360: A split Tenth Circuit panel on Tuesday reversed a Utah federal judge’s order finding that American Samoans are birthright U.S. citizens, holding that the issue belongs in the hands of Congress, not the courts.

 

11th Circ. Says Rules Require New Review Of Asylum Bid

Law360: In a decision that established several court precedents, the Eleventh Circuit has revived a Sri Lankan man’s bid for asylum, ruling that both an immigration judge and the Board of Immigration Appeals failed to properly reconsider his asylum application after allowing him to stay in the United States.

 

DC Circ. Says Asylum Policies Beyond Its Purview

Law360: The D.C. Circuit ruled Friday that it lacks jurisdiction to revive asylum-seekers’ challenge to how border officers carry out a policy that requires migrants to seek protections in other countries they pass en route to the U.S.

 

Resources Related to Lawsuit Challenging New DHS Asylum EAD Rules

AILA: DHS filed a motion for partial summary judgment in district court on all the plaintiffs’ claims regarding the 30-day timeline repeal rule, which was published on June 22, 2020.

 

DHS Asks Judge Not To Impose Asylum Work Permit Deadline

Law360: The Biden administration has asked a Maryland federal judge to keep intact a Trump-era asylum work rule that gives the U.S. Department of Homeland Security more time to process work permits, saying the increased flow of asylum-seekers justifies the change.

 

Migrants Fault USCIS Interpretation Of 10-Year Entry Ban

Law360: Three Mexican nationals have asked a Colorado federal court to declare that U.S. Citizenship and Immigration Services unlawfully denied their green card applications by finding them inadmissible under a 10-year bar on reentering the United States up to 20 years after they left the country.

 

USCIS Updates Policy Manual on the Bona Fide Determination Process for Victims of Qualifying Crimes and EADs and Deferred Action for Certain Petitioners

USCIS provided guidance in the Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitioners. Comments and feedback is due by July 14, 2021. AILA Doc. No. 21061433

 

DHS and DOS Issue Joint Statement on Expansion of Access to the Central American Minors Program

DHS and DOS issued a joint statement on the second phase of the Central American Minors (CAM) program’s reopening. Eligibility now includes legal guardians and parents and U.S.-based parents or legal guardians with pending asylum application or pending U visa petition filed before 5/15/21. AILA Doc. No. 21061631

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, June 21, 2021

Sunday, June 20, 2021

Saturday, June 19, 2021

Friday, June 18, 2021

Thursday, June 17, 2021

Wednesday, June 16, 2021

Tuesday, June 15, 2021

Monday, June 14, 2021

 

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

Thanks Elizabeth! As previously noted, I remain skeptical of Biden Administration plans to “reform” asylum law without bringing in the progressive human rights experts who can handle the job! 

Most needed “reforms” — like bringing in progressive judges, replacing the BIA, bringing in progressive managers and executives, slashing the largely self-created EOIR backlog, working with NGOs to provide universal representation to asylum seekers and other vulnerable individuals, eliminating unnecessary detention, issuing positive precedents to guide IJs and Asylum Officers, bringing on more Asylum Officers and offering them better training (see, e.g., VIISTA @ Villanova), restoring Administrative Closing, implementing e-filing at EOIR, expanding the Central American Minors Program and other refugee programs in Central America, and many others are “hiding in plain sight.” 

The “blueprints” are already about there — in bulk! All that’s missing is the dynamic new progressive leadership to implement them and insure compliance. 

Also, as I’ve pointed out before, no Administration in history has had the benefit of so much empirical data, practical scholarship, and “ready for prime time” workable solutions for such well-documented and glaring problems. The asylum and EOIR “fixes” are both highly doable and can produce immediate positive results with more to follow! 

But, not necessarily the way the Biden Administration is going about it, with far too many of those needed to turn “rhetoric into reality” still on sidelines in the private sector. In the meantime, folks who have already proved beyond a reasonable doubt that they can’t fix the system remain in key positions.

For Pete’s sake, several of my Georgetown Law students rattled off some of these solutions in class yesterday, and asked me why nobody was working on them. I told them I couldn’t figure out why the Biden Administration was so “slow on the uptake” with so many resources and experts out here in the private sector!

One of my most obvious ideas — hire my three colleagues, Georgetown Professors Phil Schrag, Andy Schoenholtz, and Temple Associate Dean Jaya Ramji-Nogales who recently wrote “instant immigration classic” The End of Asylum and earlier wrote the classic “bad government” expose Refugee Roulette — on a six month consulting contract to come in and fix EOIR and the Asylum Office.  

It’s not so much regulatory reform that’s needed (although to be sure improvements can be made), but rather bringing in progressive leadership and better judges in key positions at DHS, DOJ, and EOIR to insure that due process is maximized, best practices are instituted, and recalcitrant personnel still committed to the Trump/Miller White Nationalist agenda are placed in other jobs where they can’t overtly damage our justice system.

Not “rocket science!” 🚀 But, it’s not going to be solved by a “regulatory agenda” either! 

🇺🇸Due Process Forever!

PWS

06-23-21

‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

https://www.jeffreyschase.com/blog/2021/6/21/first-steps

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

The latest from the Hon. “Sir Jeffrey:”

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

First Steps

On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1  Matter of A-B-,  issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2  Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3  And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4

Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being.  Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment.  If final rules are eventually published, it will occur well into next year.

As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.

As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5  That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6  While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.”  In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone.  Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave.  While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.

As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7  While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.

For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country.  While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.

First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone.  In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8  However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.

The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9  And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset.  The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10  Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.

But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection.  In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.

The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous.  However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.

The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County.  The Court explained that the test

incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.11

In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12  But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.

Had the proper test for nexus been employed in L-E-A-, asylum would have been granted.  Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist.  However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13

As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course.  The problem is compounded by the particular composition of the BIA at present.  For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims).  Three had an asylum denial rate in excess of 98 percent.14

This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-.  This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state.  The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.

One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy.  Might it have been because of her gender?

Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward.  Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.

Copyright 2021, Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”); Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”).
  2. 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”).
  3. 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).
  4. 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).
  5. 26 I&N Dec. 388 (BIA 2014).
  6. The regulations under consideration at that time were never issued.
  7. 27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).
  8. UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.
  9. James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.
  10. Hathaway and Foster, supra.
  11. Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).
  12. Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
  13.  L-E-A- I, supra at 47.
  14. See TRAC (Transactional Records Access Clearinghouse) Immigration Judge Reports https://trac.syr.edu/immigration/reports/judgereports/.Republished with permission.

 

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

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 
    • No regulation can bring decisional integrity and expertise to a body that lacks both! 
    • Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
      • Progressive judges appointed to BIA: 0
      • Progressive judges appointed to Immigration Court: 0
      • Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
      • Billy Barr Selected Immigration Judges Appointed: 17
      • “Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
      • Number of BIA precedents decided in favor of respondent: 2
      • Number of BIA precedents decided in favor of DHS: 9

That’s right, folks: Billy Barr and Stephen Miller have had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense? 

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!

Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

PWS

06-22-21

🏴‍☠️☠️⚰️🤮👎IT JUST KEEPS GETTING WORSE @ GARLAND’S BIA — Plethora of Errors, Mischaracterizations, Misogyny, and Abuses Emanate From Garland’s Deadly, Out Of Control Star Chambers In Falls Church — How Many Deaths & Embarrassments Is It Going To Take For  Judge G. To Finally Pull The Plug 🔌 On This Dangerous, Incompetent Band Of Scofflaws?  — Issue = Asylum For Rape Victim/Abused Widow In India!

Woman Tortured
“When will it end, Judge G? When will it ever end?” –“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/21/18-72786.pdf

Kaur v. Garland, 9th Cir., 06-21-21, published

PANEL:Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Salvador Mendoza, Jr.,* District Judge.

OPINION BY: Judge Mendoza

STAFF SUMMARY:

Granting Ravinder Kaur’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in concluding that Kaur failed to establish material changed circumstances to warrant an exception to the time limitation on her motion to reopen, and in concluding that she failed to establish prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.

Kaur sought to reopen her removal proceedings based on a combination of changed personal circumstances – the death of her abusive husband and his family’s threats that they would kill her if she returned to India because she was responsible for his death, and changed country conditions – including worsening conditions in India for women and widows.

The panel held that the Board mischaracterized the record and erred in concluding that Kaur presented evidence of only changed personal circumstances in support of reopening. The panel explained that while a self-induced change in personal circumstances does not qualify for the changed circumstances exception, that principle cannot apply rigidly when changed circumstances in the country of origin, while personal to the petitioner, are entirely outside her control, as was the case here. The panel further

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

   

KAUR V. GARLAND 3

explained that even where any change in personal circumstances is voluntary and did not originate in the country of nationality, the changed circumstances exception applies where changes in personal circumstances are made relevant due to changes in country conditions. The panel wrote that Kaur’s husband’s death, and his family’s death threats, were made relevant by increased violence in India against women, and in particular against widows. The panel further wrote that, contrary to the Board’s determination that Kaur provided evidence of only generalized conditions, Kaur presented evidence demonstrating that the prevalence and severity of human rights violations against women and widows had materially worsened in many respects.

The panel held that the Board also erred in concluding that Kaur failed to establish prima facie eligibility for asylum and withholding of removal relief. First, the panel concluded that the Board erred in determining that Kaur failed to establish that a protected ground, including her membership in a family social group, would be one central reason, or a reason, for the harm she fears. The panel wrote that a person may share an identity with a persecutor, and if a member of a particular social group is persecuted by other members of that same group because those members perceive the applicant as being “insufficiently loyal or authentic” to that group, she has been persecuted on account of a protected ground. Second, the panel concluded that the Board erred by requiring Kaur to show that her similarly situated family members had been mistreated. The panel explained that the safety of similarly situated members of the family who remained in the country of origin may be pertinent to a claim of future persecution, but does not itself disprove it, and in this case, the Board relied on the safety of Kaur’s daughter, who was not similarly situated. Third, the

 

4 KAUR V. GARLAND

panel concluded that the cultural context and Kaur’s evidence established more than a mere personal vendetta.

The panel held that the Board erred in concluding that Kaur failed to establish prima facie eligibility for CAT protection. First, the panel held that the Board erred in applying a “more likely than not” standard, rather than requiring Kaur to show a “reasonable likelihood” of meeting the statutory requirements for CAT protection. Moreover, the panel concluded that the Board abused its discretion in determining that Kaur did not meet the government consent or acquiescence requirement. The panel pointed out that Kaur presented evidence that her husband’s family is wealthy and has the means of carrying out their threats, that India suffers from widespread corruption, and that officials respond ineffectively to crimes, especially those against women. Based on that evidence, the panel concluded that the Board did not have substantial evidence to dismiss Kaur’s fears as speculation.

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

This is outrageous! In addition to raising issues about Garland’s failure to replace the “Killer BIA” with real progressive judges who are experts in human rights, due process, and immigration law, as almost every expert recommended, it raises serious concerns about Associate AG Vanita Gupta’s inexplicable failure to bring in litigation competence at OIL. Presenting and defending this mess as acceptable performance by DOJ quasi-judicial officials raises very serious ethical questions about both the “judges” and the attorneys defending their obviously defective, bias-based, anti-asylum, anti-female work product.   

As many of us have been saying ever since the election, the “thorough housecleaning” at DOJ can’t wait! There is plenty of evidence to get the government lawyers participating in this mockery of justice out of leadership and decision-making positions, at a minimum! The fact that this case was argued under the Trump regime does not change the unethical performance at OIL or the incompetence of the BIA. Folks who “go along to get along” with violations of law and ethics, particularly in support of a White Nationalist agenda, should not be holding responsible Government legal positions. PERIOD!

Every individual and group who believes in due process, equal justice, gender fairness, good government, humanity, racial justice, and legal ethical norms should be demanding that Garland, Monaco, Gupta, and Clarke change leadership at EOIR, immediately relieve and replace (even if on a temporary basis) the BIA, and bring ethics, expertise, and competence to OIL. 

Kristen Clarke, some the most outrageous “civil rights abuses” in America here taking place right at the DOJ — at EOIR and OIL! Others are “hidden in plain sight” at DHS, particularly in their “New American Gulag.” You’re NOT going to solve voting rights, police misconduct, or any other civil rights problem in America without first getting the DOJ’s house in order. And, that means standing up to your dawdling and, to date, remarkably ineffective “political bosses” and demanding immediate change!

It’s YOUR REPUTATION, along with the lives of refugee women like Ms. Kaur, that are on the line here!

🇺🇸 Due Process Forever!

PWS

06-21-21

💡NOLAN RAPPAPORT @ THE HILL SAYS BIDEN DIDN’T GO FAR ENOUGH WITH HIS CENTRAL AMERICAN MINORS’ (“CAM”) PROGRAM — He’s Right!

Nolan Rappaport
Family Pictures
Nolan Rappaport
Opinion Writer
The Hill

Biden’s program for migrant children doesn’t go far enough

By Nolan Rappaport

Former President Barack Obama established the Central American Minors (CAM) Program in December 2014 to provide in-country refugee processing for children in the Northern Triangle Countries (El Salvador, Guatemala, and Honduras) as a safe, legal, and orderly alternative to them making the dangerous journey to the United States to apply for asylum.

 

But Obama only made the program available to Northern Triangle children who had a parent who was already physically present in the United States and had lawful status.

 

The Trump administration phased out the CAM program in fiscal 2018 because “the vast majority of individuals accessing the program were not eligible for refugee resettlement.”

 

On March 10, 2021, the Biden administration announced that it had restarted the CAM program to reunite children from the Northern Triangle countries with parents who are lawfully present in the United States. Biden also wants to save Northern Triangle children from having to make the dangerous journey to the United States in the hands of smugglers.

 

That’s a noble intent: The trip across the border is incredibly dangerous.

 

On June 15, 2021, Biden announced an expansion of the CAM program which specified that parents and legal guardians lawfully present in the United States may apply on behalf of the children — this now includes parents or legal guardians in the following legal status categories: Permanent Resident Status; Temporary Protected Status; Parole; Deferred ActionDeferred Enforced Departure; and Withholding of Removal.

 

According to David Bier, a research fellow at the Cato Institute, this is a great improvement over requiring children to come to the United States in the hands of smugglers; however, it remains to be seen whether it will dissuade families from sending their children here with smugglers.

 

Biden’s CAM program may be more generous than the Obama administration’s CAM program, but I think Sen. Chuck Grassley (R-Iowa) was right when he observed that illegal crossings were not reduced when the Obama administration tried this program years ago, and there’s no reason to think it will have that effect now.

 

Moreover, Biden should know that his revised CAM program is not going to be an effective alternative to making the dangerous journey with smugglers. His administration has acknowledged that only 40 percent of the children from the Northern Triangle who were apprehended at the border this year had a parent in the United States.

 

I don’t understand why he didn’t make it available to all Northern Triangle children who have a persecution claim. He didn’t have to limit the program to children who have parents or guardians in the United States.

 

Read more at https://thehill.com/opinion/immigration/559334-bidens-program-for-northern-triangle-children-doesnt-go-far-enough

 

Published originally on The Hill.

 

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

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

Thanks, Nolan! Go on over to The Hill and read Nolan’s complete article.

Nolan’s proposal sure seems like good government and common sense to me. This expanded policy should be relatively non-controversial. Like Nolan, I don’t understand why the Biden Administration is “missing the obvious here.” Every step helps in better and more humanely managing Central American asylum applications. I’ll bet there are even qualified retired immigration officials from USCIS and Immigration Judges and BIA staff from DOJ who would be willing to return as “rehirees” and travel to Central America to work on a program like Nolan proposes.  

Gotta “pick the low hanging fruit,” as Nolan suggests!

🇺🇸Due Process Forever!

PWS

06-21-21 

🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!

 

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Roger B. Taney, Chief Justice, Supreme Court, March 1857, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

“Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.”

Justice Samuel Alito, Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)

Dred Scott
Dred Scott (circa 1857)
Public Realm — Black asylum seekers and other migrants aren’t celebrating the continuing disgraceful “Dred Scottification of the other” in Mayorkas’s “New American Gulag” and Garland’s “Miller Lite” Immigration “Courts” that aren’t “courts” at all!

 

 

Rowaida Abdelaziz
Rowaida Abdelaziz
Immigration Reporter
PHOTO: Twitter

https://www.huffpost.com/entry/institutional-racism-immigration-system_n_60cbc554e4b0b50d622b66d7

By Rowaida Abdelaziz in HuffPost:

Yacouba, a political activist in Ivory Coast, knew if he didn’t immediately flee his home country, he wouldn’t survive.

After being threatened, attacked and tortured by people sympathetic to those in power, Yacouba fled his country in 2018. He went to Brazil for a few years, then made a perilous trek through Peru, Ecuador, Colombia, Panama, Costa Rica, Honduras and Mexico before finally arriving in the United States.

The journey was one of the two most challenging periods of his life. The second was being detained as a Black immigrant in the U.S.

As the nation celebrates Juneteenth — a day commemorating the emancipation of African Americans who had been enslaved in the United States — as a federal holiday for the first time, Black Americans and immigrants are fighting to dismantle institutional racism, including within the immigration system. Black immigrants are disproportionately detained, receive higher bond costs, and say they face racist treatment within detention centers.

Recognizing and celebrating the emancipation of slaves is vital, activists say ― but continuing to take down systemic racism needs to come with it.

“From an immigration perspective, Black immigrants face disproportionate levels of detention and exclusion,” Diana Konate, policy director at the advocacy group African Communities Together, said Thursday on a press call. “These can be life-threatening, as Black immigrants often get deported back to unsafe and dangerous conditions. While we celebrate the victories, we keep in mind that a lot of work remains.”

. . . .

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

Read the rest of Rowaida’s article at the link.

Every day that Garland, Monaco, Gupta, and Clarke drag their collective feet on ending “Dred Scottification,” racial bias, and xenophobia at EOIR diminishes their credibility on all racial and social justice issues. To date, Garland has appointed zero (O) progressive judges at EOIR, has only scratched the surface of the White Nationalist bias in decision-making in the Immigration Courts, and has failed to re-establish due process and the rule of law for Blacks and other migrants of color at the border.

Justice Alito and his colleagues in the majority disgracefully basically “dressed up” the core of Dred Scott dehumanization and bias in “21st century faux constitutional gobbledygook and intentional, disingenuous fictionalization!” Make no mistake: asylum seekers applying at our borders with their lives and humanity at stake are “persons” subject to our jurisdiction and are entitled to full Constitutional due process and statutory rights that are being denied to them every day, currently by the Biden Administration.

While Alito & Co. are wrong, DEAD WRONG in all too many cases, nothing in their dishonest and misguided “jurisprudence” prevents Garland from providing due process to individuals, regardless of status, in Immigration Court and to ending the racism and dehumanization underneath both the mess at EOIR and the cowardly abdication of duty by the Supremes’ majority in Thuraissigiam! In human rights, you either solve the problem or become part of it. And, experts, journalists, and historians are making a permanent record of the actions of the Supremes and the Biden Administration when democracy and racial justice are under stress!

You don’t have to look very far to “connect the dots” between Alito’s dismissive attitude toward the human rights of Asians and other asylum seekers of color and the increase in hate crimes directed against Asian Americans and unfair policing of African Americans. Once courts and government officials endorse “dehumanization of the other based largely on ethnicity” the “protections” and “distinctions” of citizenship tend to also vanish. If the lives of migrants of color can be declared worthless, what difference does citizenship mean for those of the same ethnic heritage that Alito deems below humanity? Obviously, the  Trump kakistocracy’s attack on migrants of color was just a “place holder” for their attack on the rights of all persons of color in America! 

How can Garland’s DOJ demand racial justice in state law enforcement while operating America’s most notorious “Jim Crow Court System?”

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism — He still “rules the roost” at Garland’s EOIR!

It’s time for all civil rights and civil liberties organizations to join forces in demanding an end to bias and “Dred Scottification of the other” in Garland’s disgracefully dysfunctional Immigration “Courts.” Not rocket science!🚀 Just human decency, common sense, available (yet ignored) progressive expertise, and Con Law 101!

🇺🇸Due Process Forever!

PWS

06-21-21

⚠️FIFTH CIRCUIT REMAND IS JUST FIRST OF MANY THAT WILL RESULT FROM BIA’S TOTALLY AVOIDABLE NIZ-CHAVEZ SCREW-UP! — Garland’s Backlog Likely To Mushroom Until He Cleans House @ EOIR! — “Culture of Denial” At BIA Crippling American Justice! — Garland Needs Qualified Judges & Professional Court Administrators @ EOIR, To Replace The “Continuing Clown Show!”🤡

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/unpub-ca5-niz-chavez-remand-villegas-de-mendez-v-garland

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

Dan Kowalski reports on LexisNexis Immigration Community:

Immigration Law

pastedGraphic.png

Daniel M. Kowalski

18 Jun 2021

Unpub. CA5 Niz-Chavez Remand: Villegas de Mendez v. Garland

Villegas de Mendez v. Garland

“The NTA sent to Villegas de Mendez does not contain the information required to trigger the stop-time rule. See id. at 1478-79, 1485; see also § 1229(a)(1)(A)-(G). Neither does the subsequent notice of hearing sent to her. Thus, she did not receive the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct. at 1485. The BIA consequently abused its discretion by committing an error of law. See Koon v. United States, 518 U.S. 81, 100 (1996); Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th Cir. 2019); Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). Therefore, the petition for review is GRANTED and the case is REMANDED to the BIA for further consideration in light of Niz-Chavez, 141 S. Ct. 1474, and consistent with this judgment.”

Hats off to Raed Gonzalez!

pastedGraphic_1.png

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

One major problem with constantly going with DHS interpretations is that many are both legally wrong and practical disasters. After the initial Pereira v. Sessions debacle the BIA had a chance to solve the problem. Instead, undoubtedly spurred on by the “deny everything culture” promoted by the Trump regime’s White Nationalist agenda, the BIA chose the worst possible legal interpretation with disruptive practical implications. Any real immigration expert could have seen this coming!

When was the last time in a potential “Chevron-type” situation that the BIA or the AG adopted the migrant’s proffered interpretation rather than DHS’s? Yet even with all the (in my view highly inappropriate) advantages conferred on the Government by the Supremes’ intellectual indolence in Chevron and its absurdist companion “Brand X,” Article III Courts, including the Supremes, reject BIA/AG interpretations on a regular basis. Pereira and Niz-Chavez are just two of the most prominent recent examples.

Moreover, because neither the AGs nor the BIA are respected experts in immigration and human rights, and, shockingly, none have significant experience representing individuals in Immigration Court, the mis-interpretations that they choose are often impractical and unworkable. This, in turn leads to confusion, unnecessary remands, and unmanageable backlogs, not to mention patent injustice and deadly results for the mere humans  caught up in this ongoing disaster! This is what “Dred Scottifcation” is all about!

The case highlighted above should have been reopened in 2017. In a “real” court system, with qualified judges, professional administration, and no political interference, it could have been completed by now. Instead, it’s no closer to completion than it was four years ago! 

But, lots of time and resources have been wasted in defending the BIA’s wrong attempt to deny reopening! This nonsense by the Government, NOT dilatory tactics by migrants and their attorneys trying to navigate this intentionally user-unfriendly and often illegal and illogical system, is what “builds backlog!”

Indeed, a wiser system would have turned preliminary adjudication of these cases over to USCIS so that only those that could not be granted and were not appropriate for prosecutorial discretion (“PD”) would have been sent to Immigration Court. Virtually none of the “non-LPR cancellation” cases are legitimate enforcement priorities. A similar approach was used with the NACARA program under better overall management. 

Instead, as a result of poor BIA decision-making and even worse “leadership” at the Trump DOJ, this case is no closer to a final resolution than it was in 2017. And, DHS and EOIR still haven’t systemically corrected the completely fixable practical problems that generated Pereira and Niz-Chavez in the first place. Nor have Garland and Mayorkas announced systemic plans for removing the unnecessary “cancellation backlog” from Immigration Court dockets even though they would be “low priorities” for ICE under the criteria announced by OPLA’s John Trasvina! 

That’s why we have unmanageable backlogs! And they will continue until Garland cleans house at EOIR, brings in a diverse group of qualified expert judges, and empowers them to act independently, stand up to the frequent nonsense pushed by DHS, and “laser focus” on due process for individuals and instituting and enforcing best practices! 

One of the most obvious of those “best practices,” totally missing from Garland’s mismanaged Immigration Courts to date, would be returning “docket control” to local Immigration Courts and ending the “Aimless Docket Reshuffling” by EOIR Headquarters and DOJ politicos that has helped generate the out of control backlog. 

Many cancellation of removal cases could and should be “administratively closed.” But, inexplicably, Garland has yet to revoke Sessions’s ridiculously wrong Matter of Castro-Tum, and restore to Immigration Judges their power to administratively close cases. That’s notwithstanding that Castro-Tum has been rejected in whole or in part by every Circuit Court of Appeals to consider it.

How long is Garland going to continue to “sponsor” inferior, non-independent, pro-DHS “judging” and amateurish, politicized mismanagement that is destroying our entire legal system?

🇺🇸Due Process Forever!

PWS

06-20-21

🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

Circus
This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm

https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf

Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published

PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.

OPINION: JILL PRYOR, Circuit Judge

KEY QUOTE:

Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.

§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.

Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore

1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).

2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.

 2

USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32

manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.

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

Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR  yet another chance to deny for specious reasons (as they have already done twice). This  idiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations! 

The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):

A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987). 

Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”  

I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?

Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better. 

Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted and  promoted by Garland at DOJ is all about!

A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!

This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better! And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum. 

This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!

Nor is this a Circuit renowned for critical analysis or holding the Government to a high standards in immigration cases. Indeed, the Eleventh Circuit itself bears some responsibility for this mess! They are well aware of the anti-asylum bias and poor decision-making emanating from the Atlanta Immigration Court, within their jurisdiction, and have chosen to ignore it. See, e.g., https://immigrationcourtside.com/2019/04/22/11th-circuit-judge-adelberto-jose-jordan-outs-the-atlanta-immigration-court-for-equal-protection-charade-in-a-dissenting-opinion-in-my-view-ms-diaz-r/

Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!

And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland! 

Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!

Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!

It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage! 

NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!

Star Chamber Justice
Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!”  — Public realm

🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!

PWS

06-19-21

NDPA STALWART JASON “THE ASYLUMIST” DZUBOW 🌟 QUOTED IN AP ARTICLE ABOUT REPEAL OF A-B- & L-E-A-!

Jason Dzubow
Jason Dzubow
The Asylumist

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a9dc6320-82bc-4db8-bb6b-cfba11a536cb

AP reports:

The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.

Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.

“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”

Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.

Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.

. . . .

In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.

One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.

Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.

Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.

“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”

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

Read the full article at the link.

You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!

I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again! 

Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!

Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony. 

To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.

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

Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.

At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!

But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it. 

However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR! 

Amateur Night
Time for this long-running show at DOJ/EOIR to end!   PHOTO: Thomas Hawk
Creative Commons
Amateur Night

 

🇺🇸Due Process Forever!

PWS

06-18-21

👍🏼UNHCR welcomes US decision to restore protections from gang and domestic violence

 

UNHCR welcomes US decision to restore protections from gang and domestic violence

UNHCR, the UN Refugee Agency, welcomes the U.S. government’s decision announced 16 June to reverse legal rulings introduced several years ago that effectively made people forced to flee life-threatening domestic and gang violence in their home countries ineligible from being able to seek safety in the United States.

“These rulings have put the lives of vulnerable people at risk,” said Matthew Reynolds, UNHCR Representative to the United States and the Caribbean, after the U.S. Justice Department announced that the legal rulings known as Matter of A-B- and Matter of L-E-A- had been vacated in their entirety.

“Today’s decisions will give survivors fleeing these types of violence a better chance of finding safety in the United States and being treated with the basic compassion and dignity that every single person deserves. UNHCR welcomes this important humanitarian step,” Reynolds said.

UNHCR, he added, also welcomes the U.S. administration’s commitment to bringing its asylum system into line with international standards and specifically to writing new rules on determining membership of a “particular social group,” one of five grounds spelled out in the 1951 Refugee Convention defining who is entitled to international protection as a refugee.

“In keeping with international standards, a simple and broad definition of ‘particular social group’ is an essential part of a fair and efficient asylum system,” Reynolds said, adding that UNHCR stands ready and willing to support the asylum review and rulemaking process in any way requested by the U.S. government.

ENDS 

This Press Release is available here.

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UNHCR, the UN Refugee Agency: 70 years protecting people forced to flee.

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The unethical and illegal “bogus precedents” issued by Sessions and Barr have cost lives! Much of the damage done to date is irreparable. So is the continuing damage resulting from the Biden Administration’s failure to reopen ports of entry to legal asylum seekers.

🆘A functioning asylum system at ports of entry, establishing a viable refugee program in or in the region of the Northern Triangle, and a wholly reformed, due process oriented EOIR with real judges who understand how to fairly and efficiently evaluate and grant asylum under the very generous standard enunciated by the BIA in Matter of Mogharrabi but never in fact uniformly applied in practice will reduce the number of individuals crossing the border between ports of entry to seek refuge. We also need the help of NGOs in providing representation to those arriving and resettlement assistance for those “screened in” for hearings. 

Right now, we have no legal asylum system at our border despite very clear statutory language commanding it. That’s a BIG problem that must be addressed immediately! Clearly, the Biden Administration must cooperate with and seek help from human rights experts now outside Government including the UNHCR. 

As I’ve said before many times, expert human rights leadership needs to be brought into their Biden Administration to “kick some tail,” eradicate incompetence and bias, and fix EOIR and the asylum system. 

The NDPA needs to keep the pressure building for more immediate, common sense reforms to our asylum system and a legitimate EOIR of experts who function independently from DHS enforcement and politicos.

🇺🇸⚖️Due Process Forever!

PWS

06-17-21

🆘COME ON, MAN! — BIDEN ADMINISTRATION MUST REFORM THE IMMIGRATION COURTS TO FIX THE ASYLUM SYSTEM! — New BIA, Better Judges, Practical Precedents, Slashed Backlogs Needed, Not More “Built To Fail” Gimmicks! — Stop Screwing Around, Bring In The Human Rights/Due Process Experts, & Empower Them To Fix The EOIR Mess! — After Garland’s Important First Step, Biden Administration Threatens To “Take Points Off The Board” With Wacko Proposal That Due Process/Human Rights Experts Hate! — Stop The Nonsense & Fix EOIR Before More Innocents Die!

L

From Human Rights First: 

PUSHING FOR A MORE JUST ASYLUM SYSTEM

 

Friday marked three years since former Attorney General Jeff Sessions declared that people fleeing gender-based violence, gang brutality, and other human rights violations are undeserving of protection — in the reprehensible decision known as Matter of A-B-.

 

Human Rights First and over 70 organizations of the Welcome With Dignity campaign urged the Biden administration to end Trump-era cruelty and restore fairness to the asylum process.

 

Today, news broke that the Department of Justice had vacated Matter of A-B-, a welcome move that will help protect refugees who are persecuted by violent gangs, suffer domestic abuse, or are endangered because of their family ties.

 

 

Amid news that the Biden administration is considering issuing an interim final rule in asylum processing that may cut back vital due process protections, Human Rights First led over 40 organizations in a letter calling on the administration to adjust course and provide the requisite notice and comment period for the rule.

 

 

 

This week, Human Rights First also applauded the Biden administration’s plans to expand the categories of people who can petition to bring children to safety in the U.S. through the Central American Minors Program (CAM) to include asylum seekers and others.

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Unlike the Administration folks pushing this misguided policy, I’ve actually worked in and on our asylum system for nearly five decades. I’ve seen it from the inside and the outside. I’ve been to the border. I’ve adjudicated lots of asylum cases at both the trial and appellate levels. I’ve seen them at the border, the interior, and places in between. I’ve worked through every past “asylum emergency” and experienced, and sometimes had to defend or oppose, the failed policies of Administrations of both parties over the past four decades.   

  • Reviewing asylum claims on records created by non-judicial officials doesn’t work! Because of the importance of credibility, a de novo hearing is required! The last misguided attempt to do what the Biden Administration apparently intends failed with respect to “Asylum Only” cases at the BIA more than two decades ago and resulted in transfer of the function to the Immigration Courts;
  • I have the greatest respect for Asylum Officers. But, perhaps because so many individuals were unrepresented at the Asylum Office and because of the defects in developing the record, the majority of Asylum Office referrals I experienced in 13 years on the Arlington Immigration Court resulted in grants of asylum after full hearings! Sometimes, after full hearing and/or full documentation, the grants were so obvious that they were agreed upon or uncontested by ICE Counsel;
  • Yes, many cases coming from the border could be granted by the Asylum Office without referral to Immigration Court! But, referral of non-granted cases to a radically reformed and better EOIR for a full de novo hearing is absolutely necessary for due process and fundamental fairness. Anything less is “built to fail” and will endanger lives to boot!
  • We need a BIA of real asylum experts to provide and enforce informed, legally correct, and practical asylum precedents for both Asylum Officers and Immigration Judges. Only experts who have experienced and resisted the current illegal and impractical “denial-based” EOIR system — an intentional perversion of the Supreme Court’s generous decision in Cardoza-Fonseca and a complete mockery of the BIA’s implementing precedent in Matter of Mogharrabi — should be on the reformed BIA. Time to break up the “denial club” in Falls Church, eradicate disgraceful “Asylum Free Zones” in poorly-functioning, anti-asylum Immigration “Courts” throughout the country, and re-establish the rule of law, due process, fundamental fairness, and human dignity at EOIR!  (Fair application of asylum laws to protect rather than reject would also reduce the many cases unnecessarily clogging the Court of Appeals that could and should easily have been granted at a fair, functional, expert EOIR!)
  • Preserving a right to meaningful judicial review of denials by the independent Article III Judiciary is also absolutely essential to due process.

The Administration needs to bring in experts with asylum expertise and actual Immigration Court experience — folks like Karen Musalo of CGRS, Judge Ilyce Shugall, Michelle Mendez of CLINIC, Temple Law Associate Dean Jaya Ramji-Nogales, and retired Judge Paul Grussendorf (who additionally served as an Asylum Officer and has written a book about the shortcomings of both systems) — to solve the problem. That must include getting rid of the deadwood, the folks who don’t understand the problem, and those who see asylum policy wrongly as a “deterrent,” rather than an essential part of our legal immigration system!

Getting rid of the atrocious “precedents” in Matter of A-B- and Matter of L-E-A- is just a start! The asylum system needs help from progressive experts. The NDPA must keep up the pressure on the Administration to stop fumbling and dawdling and bring in the now-missing progressive expertise and dynamic leadership to solve the problems that threaten our democracy!

Yes, not everybody qualifies for asylum or another form of protection. But, you can “bet the farm” that in an honest, expert, properly functioning, due-process-oriented EOIR many more would qualify than under the current broken, biased, and disgraceful charade of justice still going on @ Justice! And, even those who don’t ultimately qualify deserve to be treated fairly, respectfully, and as human beings — “persons” under the Due Process Clause, because that’s exactly what they are!

🇺🇸Due Process Forever!

PWS

06-17-21