"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”
Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!
Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have.
No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.
He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.
In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!
Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!
The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!
A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along”
When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytesas “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NYT: Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years.
CLINIC: U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli — an illegally appointed Trump official. Because of this agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents — eliminating the threat of deportation if their TPS protections are revoked in the future.
AL: U.S. Immigration and Customs Enforcement, also known as ICE, will discontinue use of the Etowah County Detention Center in Gadsden, and will limit the use of the three other southern detention facilities: Glades County Detention Center in Moore Haven, FL., Winn Correctional Center in Winnfield, LA., and Alamance County Detention Facility in Graham, N.C. See also Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds.
Roll Call: Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers… [T]he report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”
Border Chronicle: Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.
GBH: The Boston asylum office for U.S. Citizenship and Immigration Services granted only about 11% of applications last year, less than half the national average, according to a report released Wednesday.
Law360: A Massachusetts judge ordered an immigration attorney to pay $240,000 in penalties and restitution for filing frivolous and false asylum applications for undocumented Brazilian immigrants without their knowledge, according to a Thursday announcement from Massachusetts Attorney General Maura Healey.
More than half of the judges will be going to the Hyattsville Immigration Court (Maryland) and Sterling Immigration Court (Virginia, opening May 2022). The list includes Claudia Cubas (CAIR Coalition), Kristie Ann-Padron (Catholic Legal Services, Miami), Kyle A. Dandelet (Pro Bono Immigration Attorney at Cleary Gottlieb), Ayodele A. Gansallo (Hebrew Immigrant Aid Society of Pennsylvania), Joyce L. Noche (Immigrant Defenders Law Center), Christine Lluis Reis (Human Rights Institute at St. Thomas University College of Law), Carmen Maria Rey Caldas (IRAP), and others.
WaPo: Refugee workers said it was typical for recent refugees to focus at first on the possibility that they would be able to return quickly to their lives. But should the war drag on, more Ukrainians would seize on the chance to seek a haven in the United States, they said.
Law360: Immigration and environmental attorneys are increasingly banding together as advocacy groups on both the left and the right try to leverage environmental laws to influence immigration policy.
Law360: An Ohio federal judge on Tuesday blocked the U.S. Department of Homeland Security from considering a Biden administration mandate that had narrowed immigration enforcement priorities while making custody decisions, finding the policy overstepped sections of federal immigration law.
Lexis: On review, the United States District Court for the Eastern District of New York affirmed the denial under the “weapons bar” of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar’s application, adequately explained the unlawfulness of Kakar’s acts under United States law, and whether in doing so it considered his claim of duress. Because we are unable to discern USCIS’s full reasoning for denying Kakar’s application or to conclude that the agency considered all factors relevant to its decision, we conclude that its decision was arbitrary and capricious under the APA.
Law360: The Eleventh Circuit ruled Thursday that the Board of Immigration Appeals erred when finding that a man’s Florida conviction for marijuana possession rendered him ineligible for a form of deportation protection.
Law360: A Texas federal judge has denied the Biden administration’s bid to transfer a group of Texas sheriffs’ challenge to the administration’s immigration enforcement policies, rejecting the argument that none of the sheriffs in the judicial district has standing to sue.
AILA: Advance copy of DHS and DOJ interim final rule (IFR) on asylum processing. The IFR will be published in the Federal Register on 3/29/22 and will be effective 60 days from the date of publication, with comments accepted for 60 days.
AILA: DOS issued guidance on visas for Ukrainian children undergoing intercountry adoption or who previously traveled for hosting programs in the United States. The Ukrainian government is not currently approving children to participate in host programs in the United States. More details are available.
AILA: EOIR updated appendix O of the policy manual with adjournment code 22. The reason is “Respondent or representative rejected earliest possible hearing date,” and the definition is “Hearing adjourned due to respondent or representative rejecting earliest possible hearing date.”
AILA: HHS 60-day notice and request for comments on proposed revisions to the Family Reunification Packet of forms for potential sponsors of unaccompanied children. Comments are due 60 days after publication of the notice. (87 FR 16194, 3/22/22)
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The idea that the DHS “New American Gulag” (“NAG”) doesn’t restrict attorney access is absurd! A primary reason for detention in obscure, out of the way, hard to reach places like Jena, LA, Lumpkin, GA, amd Dilley, TX is to inhibit representation and increase the pressure on detainees to abandon claims and take “final orders of removal.”
That goes hand in hand with staffing these prisons with DOJ’s wholly owned judges who are renowned for denying bond and summarily denying most asylum claims. That a disproportionate number of these facilities are located in Federal Judicial Circuits five and eleven, notorious for anti-due process, anti-human-rights, anti-immigrant “jurisprudence,” is no coincidence either.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
With respect to the “categorical approach,” as my distinguished colleague Judge Jeffrey Chase has pointed out, EOIR has actually “institutionalized” resistance to and manipulation of this analysis to promote results unfavorable to immigrants and pleasing to DHS!
As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.
Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference. From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result. I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas. So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.
As both of these incidents show, the Biden Administration under Mayorkas and Garland has failed to bring accountability or intellectual honesty to many parts of the broken immigration justice system they inherited from the Trump regime. The disgraceful “atmosphere of unaccountability” continues to predominate at DHS and DOJ.
Claudia Cubas Hon. Claudia R. Cubas U.S. Immigration Judge Hyattsville (MD) Immigration Court Photo: berkleycenter.georgetown.edu
Claudia R. Cubas, Immigration Judge, Hyattsville Immigration Court
Claudia R. Cubas was appointed as an Immigration Judge to begin hearing cases in March 2022. Judge Cubas earned a Bachelor of Arts in 2005 from the University of St. Thomas, in Houston, and a Juris Doctor in 2008 from the University of Maryland Francis King Carey School of Law. From 2018 to 2022, she was the Litigation Director at the Capital Area Immigrants’ Rights (CAIR) Coalition in the District of Columbia. She held the following roles at the CAIR Coalition: from 2016 to 2018, Senior Program Director; from 2014 to 2016, Program Director; from 2013 to 2014, Supervising Attorney for the Legal Orientation Program; and from 2011 to 2012, Staff Attorney. From 2009 to 2011, she was an Equal Justice Works AmeriCorps Legal Fellow at the Central American Resource Center, in the District of Columbia. From 2008 to 2009, she was an Attorney in private practice. Judge Cubas is a member of the Maryland State Bar.
Hon. Ayodele Gansallo U.S. Immigration Judge Hyattsville (MD) Immigration Court PHOTO: Penn Law
Ayodele A. Gansallo, Immigration Judge, Hyattsville Immigration Court
Ayodele A. Gansallo was appointed as an Immigration Judge to begin hearing cases in March 2022. Judge Gansallo earned a Bachelor of Laws in 1985 from Leicester University, England. From 1985 to 1986, she attended the Guildford College of Law, and completed the program for Solicitors. She earned a Master of Laws from Temple University Beasley School of Law in 1998. From 2021 to 2022, she was the Co-Director of Legal Services with the Hebrew Immigrant Aid Society of Pennsylvania (HIAS PA), in Philadelphia. From 1998 to 2020, she was the Senior Staff Attorney with HIAS PA. From 1994 to 1997, she was the Legal Director and Policy Coordinator with The Joint Council for the Welfare of Immigrants in London. From 1992 to 1994, she was the Solicitor with the Greater Manchester Immigration Aid Unit in Manchester, England. From 1988 to 1989, she was a Solicitor with Michael Freeman and Co, in London. From 1987 to 1988, she was a trainee Solicitor with the London Borough of Islington, in London. Judge Gansallo is a member of the New York State Bar.
Hon Kyle A. Dandelet U.S. Immigration Judge NY (Federal Plaza) Immigration Court PHOTO: immigrantarc.org
Kyle A. Dandelet, Immigration Judge, New York – Federal Plaza Immigration Court
Kyle A. Dandelet was appointed as an Immigration Judge to begin hearing cases in March 2022. Judge Dandelet earned a Bachelor of Arts in 2004 from Georgetown University and a Juris Doctor in 2010 from Harvard Law School. From 2017 to 2022, he was the Pro Bono Immigration Attorney at Cleary Gottlieb Steen & Hamilton LLP (Cleary Gottlieb) in New York. From 2015 to 2017, he was a Senior Staff Attorney in Sanctuary for Families’ Immigration Intervention Project at the New York City Family Justice Center in the Bronx, New York. From 2010 to 2012, and from 2013 to 2015, he was a Litigation Associate with Cleary Gottlieb. From 2012 to 2013, he clerked for the Honorable Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York. Judge Dandelet is a member of the New York State Bar.
Notably, and in marked contrast to earlier selections, particularly under Trump, all the new judges appear to have prior immigration and/or judicial experience. Significantly, 20 appear to have prior experience representing individuals in Immigration Court and a number have immigration experience with both the private sector and DHS. Some have notable pro bono, human rights, or civil rights credentials. Fittingly for “Women’s History Month” and for the composition of the upcoming generation of new attorneys (55% of law students are now women), 17 of the new judges are women.
Obviously, with more than 600 Immigration Judges nationwide, 25 new judges, no matter how well-qualified, can’t solve all the problems of a failing, unfair, and badly “out of whack” system in the near future. But, every improvement in the delivery of justice on the trial level saves lives, inspires others, reduces unnecessary appeals and remands, and puts pressure on the BIA to pay attention to detail and stop just “regurgitating the discredited Sessions/Barr/DHS party line.” Although one perhaps wouldn’t know it from reading BIA decisions, the “legal times” are changing, even if the BIA often appears tied to the least happy aspects of the past.
I have known and admired the work of Judge Claudia Cubas for years. She appeared before me at the Arlington Immigration Court, helped keep our pro bono program humming along, and was a charismatic and inspirational role model for JLCs, interns, law students, and a new generation of due-process-oriented lawyers in the DMV metro area and beyond.
Judge Ayo Gansallo is another amazing legal scholar-advocate. We worked together with Professor Michele Pistone of Villanova on the VIISTA Villanova program for training more non-attorney representatives to assist asylum seekers. It was there that I was introduced to Understanding Immigration Law & Practice, the amazing textbook that she co-authored with Judith Bernstein-Baker. It jumped out at me as just the “practically oriented” book I was looking for! It has now become a staple of my Immigration Law & Policy class at Georgetown Law. The students love the “practical approach” with lots of real life examples and problems that we can work on in groups during class.
While I don’t personally know Judge Dandelet, he is a “personal hero” of my friend, RoundTable colleague, and fellow blogger Judge “Sir Jeffrey” Chase!That really tells me all I need to know about why he will be an intellectual leader and a “game changer” on the bench.
There appear to be many other fine, well-qualified judges on this list that I haven’t personally encountered on my trip through the world of immigration. But, I do look forward to becoming familiar with their work through the extensive feedback I get from members of the NDPA throughout America.
Congrats to all the new judges! Thanks for taking on the challenge. Insist on equal justice for all, respect for everyone (including attorneys) coming before the court, and timely scholarly excellence that focuses on correct results — tune out all the other BS that all too often infects EOIR and interferes with great judging. And, of course, most important: “Due Process Forever!” It’s the “name of the game” — the ONLY game in town!
Navigating Trauma: Tips for Attorneys and Their Clients: Free webinar Mar. 30 1 pm ET
Interested in learning how to deal with trauma in your clients and vicarious trauma you might suffer in sensitive cases like asylum, domestic violence, and violent crimes? Sign up for a free webinar entitled “Navigating Trauma: Tips for Attorneys and Their Clients” this Wednesday March 30, from 1-2 pm Eastern time.
Dr. JoAnn Difede, Director of the Program for Anxiety and Traumatic Stress Studies and a Professor of Psychology in Psychiatry at Weill Cornell Medicine, and Dr. Michelle Pelcovitz, Assistant Professor of Psychology in Psychiatry at Weill Cornell Medicine, will teach you how to recognize and deal with trauma. They will also provide self-care tips. Stephen Yale-Loehr, Professor of Immigration Law Practice at Cornell Law School and co-chair of the New York State Bar Association (NYSBA) Committee on Immigration Representation, will moderate.
The webinar is sponsored by NYSBA, Cornell Law School, Proskauer, Immigrant Justice Corps, the Association of Pro Bono Counsel, and other organizations. NYSBA will provide 1.0 MCLE credit of professional practice for attendees.
Anyone can register for the free webinar; you don’t have to be a NYSBA member. NYSBA members can register at https://nysba.org/events/navigating-trauma-tips-for-attorneys-and-their-clients/. If you aren’t a NYSBA member, set up a free account at https://nysba.org. Then input your name and email address so NYSBA can send you the Zoom link. The price is set up for free, so it will automatically be $0.00 when you add the program to your cart and check out. You can also call the NYSBA membership center at 800-582-2452 to register via phone. The program will be recorded, and attendees will receive handouts.
Stephen Yale-Loehr
Professor of Immigration Law Practice, Cornell Law School
Faculty Director, Immigration Law and Policy Program
Faculty Fellow, Migrations Initiative
Co-director, Asylum Appeals Clinic
Co-Author, Immigration Law & Procedure Treatise
Of Counsel, Miller Mayer
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Feeling stressed? Burned out? “Aimless Docket Reshuffling,” poor quality IJ decisions, and a “Trump holdover BIA” stacked with “appellate judges” who almost never see an asylum case they aren’t eager to deny got you down? Tired of having the exact same facts and arguments win in one case and lose in the next! Angry about Garland’s latest due process killing gimmick — more “expedited asylum procedures?”
Welcome to “business as usual” in the “Not so Wonderful” World of Merrick Garland’s EOIR!☠️
To practice before the dysfunctional Immigration Courts and USCIS in the “Biden Era,” members of the NDPA are going to need “coping skills” in addition to legal expertise to “fight the good fight” against systemic injustice, indifference to common sense and best practices, and endemic incompetence!
Check this out!It’s free!
Remember: It’s only human lives and the future of humanity that are at stake here! Why should Garland and his ivory tower lieutenants take it seriously, just because YOU do?
🇺🇸Due Process Forever!
PWS
03-25-22
*⚠️IMPORTANT DISCLAIMER: “Courtside” is solely responsible for the content of this promotion. It has not been approved for public consumption by the webinar sponsors, the FDA, or anyone else of any importance whatsoever!
Report on Boston Asylum Office finds disproportionately low acceptance rates, bias against applicants
The office serving asylum seekers in and around Maine has the second lowest approval rate in the nation, according to a report by Maine immigrant advocacy groups.
The Boston Asylum Office has the second lowest acceptance rate of any office in the nation, and granted asylum to only 11 percent of its applicants in 2021, according to a report by Maine legal aid organizations handling immigration cases and advocates for reform.
The report says the office that serves asylum seekers in and around Maine is plagued by bias and burnout, and that its low grant rate is “driven by a culture of suspicion” toward asylum seekers.
The process of seeking asylum in the United States begins with an application to U.S. Citizen and Immigration Services. Applicants must prove they are fleeing a country in which they previously suffered persecution or were at risk of persecution based on race, religion, nationality, membership in a particular social group or political opinion.
Applications go through asylum offices first, which can either grant asylum from the outset or refer an application to an immigration court for a judge to consider.
Jennifer Bailey, an attorney for the Immigrant Legal Advocacy Project and one of the report’s authors, said almost all asylum seekers she works with eventually obtain asylum status through immigration court, after failing to be granted asylum at the Boston Asylum Office. But the court process can take years, and, while they’re waiting, applicants aren’t able to access federal student aid, social services or educational opportunities. Even worse, they spend that time away from their families, who can still be at risk.
“It’s not uncommon for people’s (families) left at home to die while they’re waiting, or to be lost within the violence,” Bailey said.
Collaborating with the Immigrant Legal Advocacy Project on the report were the Refugee and Human Rights Clinic at the University of Maine School of Law, the ACLU of Maine and a visiting lecturer at Amherst College in Massachusetts who spent eight years waiting on a decision from the Boston Asylum Office and was ultimately denied in May 2021. Today, he and his family live in Canada.
During its first five years, the Boston office – which opened in 2015 and processes about 5,600 applications a year – granted roughly 15 percent of its asylum applications on average, the report states. Meanwhile, offices in San Francisco and New Orleans were accepting asylum requests at rates that were more than three times higher. Nationally, the acceptance rate from 2015 to 2020 was 28 percent, the report says.
The report acknowledged that asylum officers who approve or refer cases to court face a “complex and essential” list of responsibilities. Being overworked and having less time to consider cases often results in asylum officers sending more referrals to immigration court, said some former officers cited in the report.
Meanwhile, supervising officers play an “outsized” role in the asylum-granting process, according to the report. If an asylum officer recommends granting asylum and the supervisor disagrees, the officer could face retaliation in the form of more work or a negative performance evaluation, the report states.
PRESUMPTION OF FRAUD
The report’s authors contend that their research “strongly suggests” that Boston’s asylum office doesn’t consider applications from a neutral stance, “but rather presumes they must be fraudulent or pose a security threat.” Of 21 trainings for asylum officers mentioned in the report, 14 were focused on fraud detection. Former officers told the report’s authors that constantly hearing concerns about fraud and credibility made them think such problems were more prevalent than they were.
“They’re telling their story, which, no matter what, can involve this unimaginable trauma of torture and violence or sexual violence or death,” Bailey said of asylum seekers. “Put yourself in that position and imagine how hard it is to talk about the worst thing that’s ever happened to you in your life, and having this officer – who has the power to help you and your family – say ‘No, I don’t believe you.’”
According to the report, bias and skepticism in the office extend to certain countries. The Boston Asylum Office granted only 4 percent of asylum applications from the Democratic Republic of Congo from 2015 to 2020, even though the U.S. has acknowledged significant human rights violations in that country, including unlawful killings and torture, the report says. The office granted only 2 percent of its applications from Angola, another country where there is known abuse.
The Newark Asylum Office in New Jersey, which also serves some of New England, granted asylum to 17 percent of its applicants from Angola and 33 percent of its applicants from the Democratic Republic of Congo.
English-speaking applicants are nearly twice as likely to be granted asylum as non-English speakers, who are referred to immigration court 80 percent of the time, the report says. Asylum-seekers who can speak English are referred to immigration court just under 60 percent of the time.
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Read the rest of Emily’s fine article at the link.
I did lots of DRC cases over 13 years on the trial bench! Most had lawyers and were extremely well-documented. Often ICE didn’t oppose grants (prior to Trump).
In Arlington, with agreement from the parties, they were candidates for the “short docket.” Nearly all the DRC cases “referred” from the Arlington Asylum Office were granted upon “de novo” review in Immigration Court.
This is a prime example of how our asylum system seriously regressed under Trump and has not been fixed by Garland and Mayorkas! No wonder our Immigration Courts are hopelessly and unnecessarily backlogged with an astounding 1.6 million pending cases. Bad judging, systemic anti-asylum bias, lack of competence, and gross mismanagement by DOJ and DHS are taking a toll on democracy and humanity!
Pathetically and disingenuously, USCIS tries to blame their malfeasance and lack of competence on “the pandemic.” That drew one of the more perceptive public comments I’ve seen recently:
Pandemic restrictions didn’t create bias in other asylum offices – that’s a totally inadequate excuse.
For sure! Just like it’s a pretext for the elimination of our legal asylum system at the border that Garland disgracefully defends! Think that the “anti-asylum culture” problem ends with USCIS? Guess again?
Former Attorney General Jeff “Gonzo Apocalypto” Sessions was never bashful about sharing his White Nationalist, nativist, xenophobic falsehoods and myths about asylum seekers with his “captive” Immigration Judges. That’s right, for those not “in the know,” amazingly the “courts” that are supposed to provide expert legal precedents on asylum law and give a “fresh look” to those cases not granted by the Asylum Office aren’t “courts” at all as most Americans know them. They are run by the chief law enforcement official of the United States, the Attorney General, even though they are called “Immigration Courts.”
Sessions actually made the following statement, unsupported by any hard evidence, to a group of his wholly owned “judges” on October 12, 2017:
“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
At the same time, he announced that he was, on his own motion and over the objection of the DHS and the applicant, “undoing” the leading BIA precedent recognizing gender-based harm as a ground for asylum. For a good measure, he also warned his supposedly, but not really, “fair and impartial judges” that he expected them to strictly apply precedent — HIS precedents, that is. In other words, start cranking out those asylum denials or your career might be in peril!
Some judges chose to resign or retire. Some kept on doing their jobs conscientiously, legitimately “working around” Sessions’s poorly reasoned and factually inaccurate anti-asylum precedents. Many, however, chose to “go along to get along” with the anti-asylum program — some happily (there were reportedly some cheers and applause when Sessions announced his cowardly assault on vulnerable refugee women of color), some not.
So clearly wrong and totally off-base was Sessions’s assault on asylum-seeking women, primarily those of color, that even the otherwise timid and reticent AG Merrick Garland had to reverse it during his first year in office and restore the prior BIA precedent. However, there has been no further guidance from the BIA on properly and generously applying this potentially favorable, life-saving precedent.
President Biden charged Garland and Mayorkas with developing regulations on gender-based claims by October 2021. Obviously, that date has come and gone with the regulations still MIA!
Think that promoting a culture of xenophobia, racism, and overt bias has no effect? During the Trump Administration, although conditions for refugees, and particularly for refugee women, worsened over that time, the Immigration Court asylum grant rate fell precipitously — from more than 50% during the mid-years of the Obama Administration to only 23% during FY 2020, the last full year of the Trump regime.
The Immigration Courts and especially the BIA were “packed” by Sessions and his successor “Billy the Bigot” Barr with questionably qualified “judges” perceived to be willing to do their nativist bidding. Inexplicably, Garland has been unwilling to “unpack” them, despite these being DOJ attorney positions in the “excepted service,” NOT life-tenured Federal Judges.
Consequently, life or death asylum decisions today depend less on the legal merits of an applicant’s case than they do on the particular Immigration Judge assigned, the composition of the BIA “panel” on appeal, the Federal Circuit in which the case arises, and even the composition of the panel of U.S. Circuit Judges who might review the case.
They also depend on whether the applicant is fortunate enough to have a lawyer (not provided by the USG). Any unrepresented, often non-English-speaking asylum seeker has little or no chance of negotiating the intentionally arcane, opaque, unnecessarily hyper technical, and “user unfriendly” asylum system in Immigration “Court” without expert help.
Almost every week, the Circuit Courts of Appeals publish major decisions pointing out elementary legal and factual errors by the BIA’s “deportation railroad.” But, that’s just the tip of the iceberg! The vast majority of life-threatening errors by the Immigration Courts go uncorrected as the applicants are unable to pursue their cases to the Courts of Appeals or are “duressed” by DHS detention in substandard conditions into giving up viable claims.
Check out some of these denial rates by ten of Barr’s BIA appointees who previously served as Immigration Judges. Those judges are listed with their asylum denial rates, according to Syracuse University’s 2021 TRAC Reports:
Michael P. Baird (91.4%),
William A. Cassidy (99%),
V. Stuart Couch (93.3%),
Deborah K. Goodwin (91%),
Stephanie E. Gorman (92%),
Keith Hunsucker (85%),
Sunita Mahtabfar (98.7%),
Philip J. Montante, Jr. (96.3%),
Kevin W. Riley (90.4%),
Earle B. Wilson (98.2%)
Gee, these guys make even the artificially high nationwide asylum denial rates (76%) resulting from Trump’s all-out assault on due process and the rule of law look low by comparison! Gosh, only one of these Dudes was even within 10% (just barely) of that already outrageously high, artificially “reverse engineered” national denial rate.
Yet, inexplicably, these virulently anti-asylum judges continue to serve and negatively shape asylum law under Garland! Even “pre-Trump,” most of them avoided granting any asylum, in the face of precedents supposedly requiring generous application of the law in accordance with U.N. guidance and recognizing gender-based persecution as real.
So, it’s little surprise that no meaningful positive guidance or helpful interpretation has come from Garland’s BIA that might lead to expedited and consistent asylum grants to the many meritorious asylum cases now buried in his burgeoning 1.6 million case Immigration Court backlog! No wonder civil rights, human rights, equal justice, and Constitutional law experts consider Garland to be a failure as AG!
To date, Garland has appointed only one BIA Appellate Judge out of 21! That was to fill an existing vacancy. Judge Andrea Saenz is a superbly qualified asylum expert with scholarly credentials, “real life” experience representing asylum seekers in Immigration Court, clerking experience in those courts, and proven intellectual and practical leadership capabilities.
But, we need a “BIA of Judge Saenzes” — like yesterday! The talent is out there! But, Garland and his lieutenants have been too dilatory, tone deaf, and shockingly indifferent to these glaring due process, expertise, and racial justice issues to bring in the qualified judges and judicial administrators to fix his unjust, unfair, and grotesquely inefficient “courts.” Thus, the dysfunction grows, festers, and eventually destroys, maims, and kills! Is this really an appropriate “legacy” for a Dem Administration?
Today, in a WashPost OpEd, Krish O’Mara Vignarajah, President & CEO of Lutheran Immigration and Refugee Service, points out:
Why are members of this outrageous “protection deniers’ club” still on Garland’s broken and biased Immigration Court bench? You don’t have to be a human rights scholar or Constitutional law expert to see that there is something seriously wrong here that Garland is sweeping under the rug!
Yes, the best answer is an independent Article I Immigration Court, free from the mismanagement and political shenanigans of the DOJ, with a merit-based selection system for judges. But, that doesn’t absolve Garland from the responsibility to fix the existing system NOW before more lives are lost, futures ruined, and American justice irretrievably degraded!
The current racially discriminatory, scofflaw, patently unjust parody of a “court” system being run by Garland is as unacceptable as it is immoral!
Garland and Mayorkas have allowed this approach to asylum seekers to flourish on their watch. That raises serious questions about their suitability for their current positions! Albrecht Dürer, Public domain, via Wikimedia Commons
“Interim Regulations” Aren’t The Answer!
Today, the Biden Administration released new “Interim Asylum Regulations” that appear designed to fail. https://public-inspection.federalregister.gov/2022-06148.pdf. That’s because they don’t address the real competency, leadership, and legal problems plaguing the current system!
I won’t claim to have waded through every word of this entire 512-page mishmash of largely impenetrable bureaucratic gobbledygook. But, I can see it’s more tone-deaf micromanagement of the Immigration Court, along with the usual, arbitrary and capricious, unrealistic “off the wall” “time limits” that are guaranteed to make things worse, not better. It’s basically more of Garland’s “Aimless Docket Reshuffling” and his “Treadmill for Immigration Attorneys” that have already helped fuel unprecedented backlogs amidst wildly inconsistent results and a steady stream of life-threatening errors from his dysfunctional “courts.”
As if the answer to a poorly functioning, hopelessly self-backlogged, incompetent, biased, and unfair system is to “speed it up!” Come on, man! That suggests, quite incorrectly, that the primary problems in our asylum system are something other than lack of competence, integrity, expertise, and leadership at DHS and DOJ!
In reality, Garland’s defective “assembly line justice” at EOIR is already cutting so many corners and being so careless and “denial focused” that a steady stream of elementary legal errors show up in the Courts of Appeals every week. How is speeding up an already unfair and error plagued system going to make it better?
The real answer is to move the many grantable asylum cases that pass credible fear through the system correctly, fairly, on a reasonable, timely, predictable basis, with representation. That requires more and better trained Asylum Officers; different, better Immigration Judges who know how to recognize and grant asylum and keep the parties moving through the system; a new BIA of practical scholars who are due-process-oriented human rights experts to set favorable, practical asylum and procedural precedents and to keep IJs, AOs, and counsel for both sides in line; and close cooperation and advance coordination with the private bar and NGOs to insure representation of all asylum seekers.
This “interim regulation” avoids and obfuscates the necessary personnel replacement, attitude adjustment, and changes to the “culture of denial and deterrence” required in the Executive Branch for our asylum system to work! I predict colossal failure!
Get ready to litigate, NDPA! This is an “in your face,” largely unilateral, insulting approach. Rather than respecting your expertise, dedication, abilities, and counsel in fundamentally changing this system, Mayorkas and Garland intend arrogantly to “shove it down your throats and the throats of asylum seekers” with their inferior personnel, a toxic culture of denial, bad attitudes, and poor lawyering! Accept the challenge to resist!`
For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents.
DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance.
The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!
Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!
There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers! PHOTO: Wikipedia Commons
The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.
Catherine Rampell Opinion Columnist Washington Post
Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.
I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:
Deepa Fernandes Immigration Reporter SF Chronicle PHOTO: SF Chron
On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.
“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.
Come on, man! You’ve got to be kidding me!
Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according toAlexandra Meeks over at CNN:
ALexandra Meeks Current News Reporter CNN PHOTO: Linkedin
The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.
But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.
And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation.
Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!”
It’s not “rocket science.” 🚀 Not by a long shot!
No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”
And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/.
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly! PHOTO: Sean Choe, Creative Commons License
Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!
I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty.
It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks— personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional. PHOTO: Thomas Hawk Creative Commons Amateur Night
Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮
“Oh, Great and Exalted Masters at DHS Enforcement, how high would you like your humble servants here at the BIA to jump?” https://www.flickr.com/photos/rasputin243/ Creative Commons License
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel
BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.
WILSON, Appellate Immigration Judge: [Opinion]
For those interested in what the law actually says (clearly an “endangered minority” @ Garland’s BIA), here’s key language from Judge Greer’s dissent:
In my view, when an Immigration Judge elects to undertake the analysis set forth in our precedent under Matter of Y-L-, either independently or at the request of the DHS, and determines that the application is frivolous, then the plain statutory language requires the entry of a frivolousness finding as part of the Immigration Judge’s decision. But whether the Immigration Judge must conduct that analysis in the first place because the DHS requests it is a different question. This key distinction was recognized by the Second Circuit in stating that Immigration Judges “regularly exercise discretion when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 672 F.3d at 186.
Requiring the adjudicator, either independently or at the request of the DHS, to engage in this analysis because the respondent made a material misrepresentation upends current practice by creating a rigid structure not mandated by statute. It equates adverse credibility with frivolousness, which I view as conflicting with the case law. It also removes discretion from the Immigration Judge and transfers it to the DHS. Accordingly, the majority’s interpretation constitutes an unwarranted expansion of the frivolousness provisions.
Although the majority casts this question in terms of whether an Immigration Judge may “ignore” a mandatory bar to asylum, the question is whether the Immigration Judge has the authority to make a judgment about pursuing a frivolousness inquiry. This Immigration Judge did not ignore a request from DHS to consider frivolousness. Rather, she entertained it and made an independent judgment not to proceed based on particular facts and circumstances in this case after deliberation. As discussed, the DHS did not question the judgment she made, which is a critical distinction; rather the DHS questions the ability of the Immigration Judge to make this judgment at all.2
I interpret the language and structure of the statute and development of relevant case law, combined with the sequencing of the frivolousness inquiry and its consequences, to demonstrate the discretionary nature of the frivolousness inquiry. And, absent any challenge to how the Immigration Judge exercised her discretion in this case, which I consider to have been waived, I would dismiss the appeal.
2 The relevant factors for the Immigration Judge to assess in making a threshold determination whether to invoke the frivolousness inquiry are a separate issue not implicated by the posture of this case.
*********************
BIA to IJs: “When our overlords @ DHS tell you to jump, your duty is to say ‘how high, my masters!’”
Here, a correct (basically, uncontested on the merits, as Judge Greer points out) grant of a waiver was reversed just because DHS wanted “control” over the judges. “How dare a ‘mere employee’ of the AG exercise discretion in the face of the ICE ACC’s demand? Do these guys think they are ‘real’ judges? Let’s tell our buddy Merrick to get his toadies back in line like they were under Sessions and Barr!” How does the “holdover” BIA’s steady stream of incorrect decisions, institutionalized bias, and “worst practices” advance justice?
The “Biden-Era BIA” is building a legacy of bad law, poor judging, and unnecessarily broken lives. Not exactly what the Biden Administration promised during the election! And, it goes without saying that requiring a fact-heavy “full Y-L- analysis” at the unilateral demand of the DHS will increase the backlog as Garland “shoots for 2 million” in his dysfunctional and chronically misdirected “courts.”
The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.
“After an immigration judge ordered him removed from the United States, Olawole Oluwajana appealed to the Board of Immigration Appeals and retained counsel to represent him. But the government was slow in providing a copy of Oluwajana’s immigration file, without which his attorney could not prepare a brief. The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory—and factually erroneous—footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief. We therefore grant the petition for review, vacate the Board’s order, and remand for further proceedings.”
Here, the BIA took 7 months to set a briefing schedule, didn’t get the file to counsel in a timely manner, then “dinged” the R’s counsel for being 12 days late in filing a brief on a complex issue where input from legal counsel would likely be “outcome determinative!”
But, along the way, “Garland’s Clown Show” 🤡 fabricated a 33 day “late period.” And, to add insult to injury, they ignored their own regulations and instructions to counsel.
Even OIL couldn’t defend this one! But, Garland nevertheless retains the “Miller Lite” Clowns from his predecessors’ “whatever it takes to deny and deport assembly line!” No quality, no fairness, no accountability! Just “anything goes” when it’s “only immigrants of color!”
Briefing schedules aren’t “rocket science.” But Garland’s “Miller Lite” holdover gang can’t even get the simple stuff right!
How is this “expert judging” entitled to “deference?”
How is having the Circuit spend time cleaning up Garland’s messes an acceptable use of Article III resources?
What happens to the many human victims of Garland’s unjust and unprofessional system who don’t have Scott Pollock & Co. to take Garland to the Court of Appeals?
What happens to Garland’s victims when the CA is on “autopilot,” which often happens?
Is it any wonder that “judges” who would rather fight with attorneys than read their briefs are running an astounding 1.6 million case backlog and an appellate backlog of 82,000, up approximately 7 times from just four years ago?
Wonder why an AG running a “second (or perhaps third or fourth) class justice system” for people of color isn’t a very effective leader or force for racial justice in America?
Clear, concise, helpful, and correct. This is the type of guidance that should be in BIA precedents! It has the potential to “move” large number as of cases through Garland’s backlogged system.
It would also deter ill-advised “bogus oppositions” to meritorious motions such as the one woodenly advanced by DHS in this case. They do it because sometimes they are rewarded by lousy EOIR judging. At worst, it’s a crap shoot as EOIR currently functions (or, in too many cases, malfunctions).
Start consistently granting meritorious motions like this and the dilatory tactics from DHS will stop! In any system, particularly one as backlogged as this one, getting the Government to stop wasting judicial time and promoting bad results in a big step forward!
The prior Administration made an all-out effort to institutionalize bias and bad judgment. Garland has been far, far too slow in exposing and rooting out this bad behavior!
Just look around for some helpful, positive “precedential” guidance from the BIA on equitable tolling in the Fourth Circuit. Let me know if you find any!
So what aren’t cases like this precedents? Why doesGarland’s BIA instead keep publishing a steady stream of obtuse, poorly reasoned, anti-immigrant precedents written by Trump holdovers. These push IJs in the wrong direction, lead to prolonged wasteful litigation, reinforce the toxic “culture of denial,” create a “false narrative” that denies the merits of many respondents’ claims, and, worst of all, abrogate the BIA’s duty to insure fundamental fairness and due process for all!
Where’s the positive guidance on how to grant gender-based and family-based asylum cases, building on the restoration of A-R-C-G- to clear out meritorious old cases?
Where’s the positive guidance on how to “leverage” PD and administrative closing to reduce backlogs?
Where’s the positive precedent on expeditiously granting reopening in the many non-LPR cancellation cases mishandled by EOIR in light of Pereira and Niz-Chavez?
Where’s the common sense workable rule on nexus that reflects “mixed motive” and incorporates ordinary concepts of causation whilejettisoning the prior Administration’s bogus “look for any motivation that doesn’t qualify, no matter how attenuated or contrived” approach?
Where’s the reasonable bond guidance that would promote consistency and end the routine practice of setting absurdly high bonds in some Immigration Courts?
With the available talent to reshape the BIA into a body that would actually fulfill the vision of “through teamwork and innovation be the world’s best tribunal guaranteeing fairness and due process for all” why does Garland continue to screw immigrants and build more backlog by treating “Miller Lite Holdovers” as if they were life-tenured judges? They aren’t!
Although Garland appears to be in denial, “immigration judging” is some of the most consequential and important decision-making in the entire Federal Judicial System! Many, probably the majority, of those languishing in Garland’s out of control, largely self-created 1.6 million case EOIR backlog have strong claims to remain in a fair and efficient system. Yet, you would never know it by the indolent way Garland has handled the BIA mess (82,000 pending appeals) and his failure to speak out and lead by example on due process, fundamental fairness, racial justice, and human rights.
A new, functioning, expert, star-studded BIA, dedicated to due process, fundamental fairness, equal justice, human rights, and best practices, would be a great starting place! A year into an Administration that should know better, it’s long, long overdue!
Meanwhile, Elsy and other talented, motivated, committed members of the NDPA will continue to pound and expose Garland’s dysfunctional “courts” at all levels of the judicial system until we get the change that we need and that was (falsely) promised!
Few Americans favor mass deportations, and with good reason — a large majority of the estimated 10.5 million undocumented immigrants in the United States have been here for at least a decade, including more than 4 in 5 Mexican migrants. Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.
So it was not a radical idea when Homeland Security Secretary Alejandro Mayorkas issued new enforcement guidelines last fall that urged deportation agents to focus their efforts on actual threats to public and national safety, as well as border security. As for long-term migrants, the bulk of whom are law-abiding, Mr. Mayorkas urged Immigration and Customs Enforcement officials to use some common sense. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he said.
. . . .
Despite the resistance, however, they appear to be having a preliminary and positive effect of tailoring enforcement to unauthorized immigrants who are dangerous. In the first 13 months of the Biden administration, 44 percent of deported migrants had been convicted of felonies or aggravated felonies, compared with just 18 percent during the Trump administration, according to internal ICE figures. For the same period, there was also a sharp jump, compared with under the Trump administration, in the number of arrests of migrants who had earlier convictions for aggravated felonies.
At the same time, the number of migrants held in ICE detention facilities has dropped sharply. At the end of February, roughly 18,000 migrants were detained, and the vast majority had no criminal record or had committed only minor offenses, such as traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University. By contrast, nearly three times as many migrants were held for much of 2019, when the Trump anti-immigrant blitz was in full force.
. . . .
It’s not lax enforcement to refrain from arresting very old or very young migrants, or to think twice about a deportation that would tear apart a family. It’s an intelligent application of the law.
*********************
Read the full editorial at the link.
The Post is right. But, unfortunately, by not making this “smarter PD” part of an overall plan to reduce backlogs, reform the Immigration Courts, re-establish the legal asylum and refugee systems, and end unnecessary detention, the Biden Administration has failed to take full advantage of this promising development.
By “running” from immigration improvements rather than embracing them, they also fail to to get credit for replacing the “maliciously incompetent,” demonstrably not in the national interest Trump/Miller/Homan White Nationalist nativist policies with a functioning system that actually serves the national interest and works as well as can be expected without legislative reforms.
A major problem remains the underperformance of DOJ and EOIR under AG Garland. Without the enlightened leadership and better personnel that should now be in place, Garland has failed to “leverage and build upon” improvements in DHS enforcement priorities to slash backlog and advance due process at EOIR.
Indeed, disturbingly, Garland has actually built new Immigration Court backlogat a record pace, while inexplicably relying on a “holdover Miller Lite” BIA that continues to deliver bad precedents, resulting in increased wasteful litigation and backlog-building remands from Circuit Courts. He has also ignored the many opportunities for harnessing the innovative ideas and high-level pro bono advocacy skills developed by the private sector in response to the “Trump onslaught” to dramatically advance and increase quality representation before the Immigration Courts.
The grotesque mismanagement of EOIR by the Trump DOJ resulted in a backlog of approximately 12,000 pending BIA appeals at the end of FY 2017 exploding to more than 84,000 by the end of FY 2020 — a mind-boggling 700% increase!https://www.justice.gov/eoir/page/file/1248501/download
Yet, curiously, there has been no major personnel shakeup at EOIR under Garland. The Trump-era “hand selected” BIA whose skewed anti-asylum, anti-immigrant “jurisprudence” helped create this mess remains largely intact.
Most of the EOIR senior managers who helped DOJ engineer this unmitigated disaster remain in their jobs. Garland has sent a message that there will be no accountability for “going along to get along” with the White Nationalist war on immigrants and that he isn’t interested in expertise, fundamental fairness, creativity, or dynamic leadership by example in his reeling “court system!”
Yet, Garland continues to “blow off” and “lock out” the private/NGO sector experts who could bring rational professional docket management, higher representation rates, and resulting reductions in detention to his dysfunctional system. Instead, he continues the “Amateur Night at the Bijou” approach of unilateral “Aimless Docket Reshuffling” and endless “built to fail gimmicks” designed by bureaucrats to meet political agendas without meaningful input from and consideration of the views of those who have actual private sector experience litigating in his broken system.
How does the make sense? It doesn’t!
Of course, effective, dynamic, courageous management of EOIR to focus on constitutionally required due process would provoke reactions from the GOP nativist right, including obstructive litigation. That’s why Garland also needs better litigators at DOJ: Tough, experienced “due process warriors” who will aggressively and expertly defend and advance the Executive’s authority to rationally administer the law, allocate resources wisely and prudently, and to recognize and vindicate civil and constitutional rights that have been suppressed by GOP politicos and some of their reactionary Federal Judges.
Bottom line: Probably the majority of those 1.6 million individuals rotting in EOIR’s largely self-created backlog fit the Post’s “lead-in” description above: “Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.”
Many could be granted asylum or other protection under proper interpretations of the law or granted “cancellation of removal” but for the unrealistic, anachronistic 4,000 annual “numerical cap” imposed by Congress decades ago. Others could be granted Temporary Protected Status (“TPS”) just as it recently was extended to Ukrainians in the U.S.
Very few are “criminals” or others who should be “priorities” for removal. Most are actively contributing to our society and many are paying taxes. In most cases, removing individuals in the EOIR backlog from the U.S., even if possible, would be a net loss for our society.
Yet, the uncontrolled, undifferentiated EOIR backlog prevents the Immigration Courts from working in “real time” on more recent cases that might actually be proper priorities.What’s the good of a more rational and professional system at DHS Enforcement if the Immigration Courts under Garland remain discombobulated? The system will not change without dynamic expert leadership at the top and an infusion of better judges, particularly at the appellate level where precedents are set and “best practices” and some measure of fair and consistent adjudication can be established and enforced.
Immigration is a complex, often convoluted system. Without a comprehensive plan led by outside experts that fixes the Immigration Courts and restores a robust functional asylum system at our borders, the positive enforcement changes initiated by Mayorkas will continue to have limited impact. And, ironically, that will play right into the hands of the Millers and Homans of the world who would like to see democracy fail, irrationality prevail, and cruelty rule!
In the early morning on Feb. 4, Jose boarded a packed airplane in Illinois filled with handcuffed immigrant detainees just like him. They were en route to another detention center in Oklahoma after theirs was ordered close. During the hour-and-35-minute flight, several people appeared ill, coughing and sniffling, but no one was able to socially distance. A few days later, Jose began experiencing the worst kind of sickness he had ever felt. He had contracted COVID-19. Jose joins the 1,126 other immigrants in Immigration and Customs Enforcement (ICE) detention who are currently being monitored and tested positive for the virus, representing a 395% surge in COVID-19 cases since January when there were only 285 reported cases.
“I was scared at one point. I’ve never been sick like that in my life,” Jose said. “I thought, ‘I’m going to die here.’”
Jose, who has asked to withhold his last name to protect his identity, is 25 years old and has lived in the U.S. since he came with his parents from Mexico at age seven; he has been in immigration detention for three months. He was originally detained in Illinois at McHenry County Jail, but when Illinois Gov. J.B. Pritzker signed the Illinois Way Forward Act, banning private and county-run immigration detention, Jose was one of 17 people from McHenry County Jail transferred to the Kay County Jail in Oklahoma.
“We really want to focus on getting releases and getting folks out of detention, instead of transfers to another facility,” said Gabriela Viera, advocacy manager at the Detention Watch Network. “We need to continue shutting down facilities until we are in a place where there are no more facilities for people to be transferred to.”
Another person in a different immigrant detention center, Jorge, was transferred from a facility in New York to Krome Detention Center in Homestead, Florida. According to advocates from the Queer Detainee Empowerment Project, he was exposed to COVID-19 and tested positive for the virus. Jorge has confirmed widespread reports that there is a complete disregard for the virus within the detention center, with no access to hand sanitizer or vaccines.
According to the National Immigrant Justice Center, both McHenry County Jail and the Jerome Combs Detention Center in Kankakee County experienced COVID-19 outbreaks among the ICE population at the time of these transfers. Advocates, public health experts, and members of Congress raised the alarm to Chicago Field Office Director Sylvie Renda in the days before the transfers about the risks of moving people to jails out of state under these circumstances, but ultimately, about 30 people were transferred from McHenry and Kankakee to Oklahoma, Indiana, and Texas.
“There was no distance between us,” Jose said. “When we got there, they just put us all in the dorm room.”
About four days after arriving in Oklahoma, Jose began feeling sick. His body ached, his sinuses were congested, and he had difficulty standing, especially during routine phone calls where there are no chairs provided. The extreme cold at night only worsened his symptoms, and he developed body shivers, chest pain, and a fever. He put in two requests to see the medic before he was finally tested for COVID-19 and confirmed that he had the virus.
“They’re not testing people regularly, and they’re not socially distancing, they’re not providing people with sufficient hygiene products,” said Diana Rashid, National Immigrant Justice Center’s managing attorney, who is representing Jose in his release request. “The spread is just going to continue.”
The medic gave him fever-reducing medication and vitamin D. He was returned to his 20-person pod and was told to remain in his bunk and try to self-isolate within his dorm room the size of a small basketball court.
“I thought they were going to move me to a cell alone,” Jose said. “But, they just left me in the room. I think I even got someone else sick.”
Jose is now recovering and feels better, but at least one other person has tested positive, with a total of nine positive cases in the detention center, according to ICE. But, Jose says that number may be even larger due to underreporting. When a person tests positive, they are put under quarantine for 10 days, meaning they cannot interact with other pods. Even worse, they are not taken out of their rooms for their court hearings, postponing an already delayed process and forcing them to stay in detention longer than necessary. According to Rashid, it would take about two to four weeks to get the first hearing in Chicago’s immigration court after a person is first detained.
“Everyone’s cases stalled for those who are in quarantine,” said Rashid.
Jose, who has been in quarantine for a majority of his detention, says that people are getting frustrated and desperate with the continued prolonging of their cases. Some are even considering signing the removal papers out of desperation.
“I just want to go ahead with my court proceedings and get out of here,” said Jose. “I want to make it to the light at the end of the tunnel.”
Immigration advocates hope more states will follow Illinois and close their detention centers. A total of 41 people were released from these jails during January in Illinois, but they believe that everyone, including Jose, should have been released on the current ICE enforcement memo guidelines. Advocates are also continuing to push for Congress to cut funding for immigration detention and enforcement and hope to invest in vital programs that uplift their communities instead, like health care, affordable housing, and education.
Prism is a BIPOC-led non-profit news outlet that centers the people, places, and issues currently underreported by national media. We’re committed to producing the kind of journalism that treats Black, Indigenous, and people of color, women, the LGBTQ+ community, and other invisibilized groups as the experts on our own lived experiences, our resilience, and our fights for justice. Sign up for our email list to get our stories in your inbox, and follow us on Twitter, Facebook, and Instagram.
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Assistant Attorney General, Civil Rights, Kristen Clarke looks for civil rights violations by state and local governments. Yet, she studiously ignores those being committed in broad daylight by her boss’s dysfunctional and biased Immigration Courts and the immigration detention empire he enables, supports, and defends.
As Alexandra’s report notes, one well-known result of prolonged detention in intentionally unsafe and substandard conditions is to “duress” individuals into giving up legal rights. Could there be a clearer violation of our Constitution going on right under Garland’s nose? I doubt it! But, no stand against these clear abuses. It’s as if “Gonzo” Sessions, “Billy the Bigot” Barr, and “Gauleiter” Stephen Miller were still calling the shots for Garland!
“The New American Gulag” (“NAG”) operates right under the noses of civil rights honcho Kristen Clarke and her boss AG Merrick Garland with their blessing. Indeed, they have “embedded courts” in the NAG! So much for the Biden Administration’s commitment to civil rights. GULAG PHOTO: Public Realm.
Almost from the “git go,” the Biden Administration has avoided dealing effectively and honestly with the “second (or third) class justice system” being inflicted by the DOJ, disproportionately targeting individuals of color and ethnic communities in America! It’s a rather glaring case of “do as I say, not as I do” that doesn’t appear to have escaped the notice of some Trump Article III judges. They turn the DOJ’s spineless “Dred Scottification” and “Miller Lite” actions and arguments back against them to undermine racial justice, fundamental fairness, and truth in all areas.
In a truly revolting🤮, yet highly revealing, interview with Savannah “Why Am I Giving Air Time To This Bad Dude” Guthrie on today’s Today Show, “Billy the Bigot” Barr made it clear that he considers corruption, lies, fascism, racism, and the final destruction of American democracy a “small price to pay” to fight the “real problem:” Progressive, humane, values-based governance in the common public interest.
But, somehow, Garland and others in the Biden Administration see no reasons to take a stand against this dangerous nonsense!
Remember folks, BTB is the overt racist who casually and glibly told Lester Holtthat “Black Lives Matter” is the “Big Lie!” He knows there will be no accountability for GOP enablers like him! Who’s the next “exclusive” for the NBC News crew, the Grand Dragon of the KKK? And, you can bet that if empowered again, the GOP will have no problem reviving the “White Nationalist Clown Show”🤡 @ DOJ.
That leaves the fight for the future of our nation to the NDPA and others who believe that America doesn’t necessarily have to spiral downhill into a “MAGAland” grave, ⚰️ but could actually become something better than we are today! It’s not a given that we can build a better nation and a better world, but it is a possibility.
Will the next generation stand up for a better future for everyone, or fulfill the nasty, backward-looking vision of lies, hate, and intolerance that BTB and the rest of the GOP right have mapped out for them?
“Every day is ‘Kangaroo Field Day’ @ Garland’s DOJ!” When it comes to immigrant justice, “good enough for government work” is the mantra! https://www.flickr.com/photos/rasputin243/ Creative Commons License
“The BIA “affirm[ed] the Immigration Judge’s decision to deny reopening because the respondent has not sufficiently demonstrated that his brother’s murder represents a material change in country conditions that would affect his eligibility for asylum.” A.R. 4. As we noted above, while (b)(4) requires “changed country conditions,” (b)(3)does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). See A.R. 4. In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law. … The question for the BIA to consider in evaluating Garcia Hernandez’s motion to reopen was whether Garcia Hernandez offered, in the proper from and with the appropriate contents, evidence that was material and not previously available at the initial hearing. 8 C.F.R. § 1003.23(b)(3). Because the BIA did not analyze that question, and instead evaluated the issue under § 1003.23(b)(4), the BIA abused its discretion. … The BIA held that Zambrano did not apply because the changed circumstances there took place before the petitioner filed a time-barred petition even though here, the purported changed circumstances took place after the time-barred petition was filed and adjudicated. But nothing in Zambrano suggests its holding or reasoning was limited in the way the BIA suggests. Thus, Zambrano’s framework in examining changed circumstances should have been applied to Garcia Hernandez’s asylum application. … [W]e grant Garcia Hernandez’s petition for review. We vacate and remand with instructions to the BIA to consider Garcia Hernandez’s motion to reopen under the appropriate standard. The BIA should also address Garcia Hernandez’s asylum application under the framework of Zambrano and conduct any further proceedings consistent with this opinion.”
Many congrats to Ben and Alex, who were both “regulars” at the Arlington Immigration Court! Alex is also a former Arlington Intern and a “charter member” of the NDPA!😎
The 4th Circuit decision was written by Judge Marvin Quattlebaum, a Trump appointee, for a unanimous panel thatincluded Judge Motz and Judge Thacker. While Judge Q doesn’t always “get it right,” his cogent analysis of the BIA’s lawless behavior in this case is “spot on.”
How does a supposedly “expert” tribunal like the BIA blow the “easy stuff” — like following their own regulations? Clearly it has something to do with an unduly permissive “haste makes waste/rush to deny” anti-immigrant culture at EOIR that Garland has not effectively addressed!
Another obvious problem: Why were Garland’s lawyers at OIL defending this obviously wrong decision?You don’t have to be an “immigration guru” to read the regulations!
Sadly, it’s not the first time under Garland that OIL has chosen to waste judicial resources and undermine our justice system by “defending the indefensible.” It’s what happens when leaders promote an “anything goes/no accountability/good enough for government work” atmosphere!
There are deep substantive, structural, personnel, attitude, and “cultural” problems at EOIR and DOJ. That, over his first year in office, Garland has chosen to ignore these glaring malfunctions of justice @ Justice is an ongoing national disgrace!🤮
It doesn’t have to be this way! But, unfortunately, it is! And, even more disturbingly, no meaningful improvements appear to be on the horizon! That’s a deadly ☠️⚰️ outlook for American justice and for those poor souls caught up in Garland’s unfair, broken, dysfunctional “court” system that bears little resemblance to any commonly understood notion of what a fair, impartial, subject matter expert court should be in America!🤯
Trump Judges Are Now a Threat to America’s National Security
The 5th Circuit let a lone judge order the deployment of unvaccinated SEALs. High-ranking officers say the decision puts the world at risk.
MARCH 1 2022 6:55 PM
On Monday, the 5th U.S. Circuit Court of Appeals issued a stunning decision transferring control over the Navy’s special operations forces from the commander-in-chief to a single federal judge in Texas. The 5th Circuit’s decision marks an astonishing infringement of President Joe Biden’s constitutional authority over the nation’s armed forces, directing him to follow the instructions of an unelected judge—rather than his own admirals—in deploying SEALs. High-ranking military personnel have testified under oath that this power grab constitutes a direct threat to the Navy’s operational abilities. As Russia invades Ukraine and declares a nuclear alert, Donald Trump’s judges are actively threatening America’s national security.
Like so many lawless cases in the 5th Circuit, this dispute began in the courtroom of U.S. District Judge Reed O’Connor. A notorious George W. Bush nominee, O’Connor is best known for attemptingto abolish the Affordable Care Act in 2018, then getting reversed by a 7–2 vote at the Supreme Court last year. So when 35 Navy Special Warfare service members refused to comply with Biden’s COVID-19 vaccine mandate for the armed forces, they brought their case to O’Connor. These service members—mostly SEALs, all represented by the far-right First Liberty Institute—claimed that their religious beliefs barred them from getting the shots. (Some said they heard “divine instruction not to receive the vaccine”; others asserted that the mRNA vaccines altered “the divine creation of their body by unnaturally inducing production of spike proteins.)
O’Connor predictably sided against Biden in January, granting a preliminary injunction of staggering scope on the grounds that the mandate violates the Religious Freedom Restoration Act. He awarded himself sweeping authority over the assignment of the plaintiffs, forcing the Navy to deploy them with operational units. When several plaintiffs were denied transfer to a duty station, they asked O’Connor to sanction the government for allegedly violating his order; he promptly ordered the Justice Department to explain why it should not be punished for failing to deploy these service members. (O’Connor has not yet decided whether to impose sanctions.)
As of today, this lone judge continues to oversee the plaintiffs’ assignments, forcing the Navy to train, equip, and deploy unvaccinated troops—with granular specificity as to their exact stations and duties.
Never before in the history of the United States has one district court judge exercised so much control over the armed forces. The Constitution assigns this authority to Congress and the president. There are certainly legal limits on executive discretion, including due process and constitutional safeguards against invidious discrimination. Right-wing lawyers have typically been loath to acknowledge any restrictions on the president’s war powers. Indeed, the conservative legal movement has endorsed a near-limitless vision of the commander-in-chief: Republican presidents, lawyers, and judges have argued that the Constitution allows the president to deploy troops without congressional approval, indefinitely detain enemy combatants, and exclude entire classes of immigrants from the country. But now it seems they draw the line at a simple vaccine requirement—even though all service members were already required to have at least nine vaccines upon enlistment.
Setting aside this hypocrisy, O’Connor’s order violated a fundamental principle of judicial restraint: Federal courts have long held that specific military assignments are never subject to judicial review. O’Connor appears to be the first judge ever to rule that, in fact, the courts can compel the armed forces to deploy a specific service member to a specific location to perform a specific duty. If his court were in a sane circuit, this unprecedented intrusion on the president’s power would be quashed almost instantly.
In an unsigned opinion that bristled with hostility against the COVID-19 vaccine, this panel agreed that the mandate violated religious liberty. Noting that most service members are vaccinated, the panel declared that the Navy lacks the “paramount interests” necessary to overcome anti-vaxxers’ religious objections. It questioned the “efficacy” of the vaccine, noting that “the USS Milwaukee was ‘sidelined’ in December 2021 by a COVID-19 outbreak despite having a fully vaccinated crew.” (Unmentioned was the fact that the crew’s vaccination status prevented even more transmission and serious illness.) The panel then found that the Navy will not be “irreparably harmed” by O’Connor’s order. And it concluded that the “public interest” lies in keeping the plaintiffs unvaccinated.
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Don’t expect this lackadaisical attitude from the next far-right GOP Attorney General to “own” the U.S. Immigration Courts — America’s “retail level” judiciary! PHOTO: Wikipedia Commons
There isn’t anything that Biden and the Dems can do in the short run to change the scofflaw trajectory and composition of the 5th and the Supremes.
But, there is a powerful, nationwide, precedent-setting“Trump-oriented retail level ‘judiciary’” — with trial and appellate divisions and control over millions of lives and futures — that they have the power to immediately reform: The U.S. Immigration Courts “housed” within the DOJ’s EOIR!
Too bad for the rule of law and the future of democracy, not to mention the millions of individual human lives and futures at stake, that Garland and his lieutenants aren’t “up to” the job!
Progressives shouldn’t expect the same lack of will, defective focus, and clueless complacency the next time the radical GOP right takes over ownership of the DOJ! When it comes to the interrelated problems of immigration, human rights, civil rights, and immigration judicial reform in the 21st Century, fecklessness and underperformance are exclusive characteristics of Dem Administrations!👎🏽☹️🤯
Some GOP judges and super-sleazy state AGs have a very clear vision of the future for refugees of color. Most days, the Biden Administration can’t decide whether they share it or not. 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)Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
The court’s opinion carries the reader along on what purports to be textual analysis and implacable logic. On closer examination, however, it is a startling exercise in judicial imperialism. The opinion seizes on fragments of statutory text, taken out of context, to construct a presumed congressional intent that would be more to the judges’ liking. It ignores contrary indicators in the wording and the historical development of the key provisions. It makes no attempt to reconcile the supposed strict mandate with the historical fact that Congress went 20 years without really noticing—much less objecting to—the absence of implementation. The court also shows an arrogant disregard for the operational realities of border enforcement, including the sensitivity of diplomatic relations with Mexico that sustain cross-border cooperation—on migration issues as well as other policy priorities.
I can bring some special perspective in analyzing the appeals court’s decision. I have been a scholar and teacher of immigration law for 40 years, and I also was fortunate to hold policy-level positions dealing with immigration in three different departments, under three different Presidents. My years in government gave me close exposure to the operational realities at a level most law professors—and judges—don’t experience. One of those stints consisted of 30 months during the mid-nineties as General Counsel of the Immigration and Naturalization Service (INS) the period when the key reform bills on which the Fifth Circuit relies were introduced, debated, amended, enacted and implemented.
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Read David’s complete article at the above link. As usual, my “practical scholar” friend gives you the real legal analysis that should have been applied by the court. Now, here’s my “less nuanced” take on this atrocious and cowardly piece of extreme White Nationalist judicial misfeasance!
Remarkably, in their 117 pages of snarky, wooden legalese, demeaning of humanity, and willfully misrepresenting reality, these life-tenured righty judges (surprise, two Trumpists, one Bush I) give no serious consideration whatsoever to the well-documented, daily, ongoing abuses of the human and legal rights of those fleeing oppression who are subjected to this heinous White Nationalist program! See, e.g., https://www.humanrightsfirst.org/resource/shameful-record-biden-administration-s-use-trump-policies-endangers-people-seeking-asylum
Just how do asylum applicants exercise their statutory “right” to apply for asylum and other protection under U.S. and international law if they are dead, kidnapped, beaten, extorted, raped, threatened, given inadequate notice of hearing, denied their right to legal assistance, prevented from preparing and documenting their cases, and if they are fortunate enough to finally get a hearing, subjected to an anti-asylum, anti-due-process, non-asylum-expert “faux judiciary” run by a prosecutor with a majority of his “holdover judges” appointed or co-opted by his White Nationalist, asylum-hating predecessors? The Fifth Circuit doesn’t bother to explain. That’s probably because historically their failure to stand up for human rights and racial justice for those in need of protection has been part of the problem.
Also, it’s remarkable how righty judges who couldn’t find any reasons to stop the Trump regime from rewriting asylum law out of existence in unprecedented ways, without legislation, and usually without regard to the APA, suddenly take a much different position when it comes to the Biden Administration’s modest efforts to vindicate human rights and restore some semblance of the rule of law. But, that’s actually less surprising than the Biden Administration’s failure to “see the handwriting on the wall” and have a “Plan B” in operation.
Obviously, these three life-tenured right-wing human rights abusers in robes need to spend a few months “detained” in Mexico or in the “New American Gulag!” But, that’s wishful thinking. Not going to happen! These are ivory tower guys with life tenure, fat salaries, and robes who use their positions to pick on the most vulnerable in the world and deprive them of their legal and human rights based on intentional misconstructions of the law, ignorance of reality, and pandering to a rather overly political racist appeal from GOP AGs who are from “the bottom of humanity’s — and our legal profession’s — apple barrel!” Doesn’t get much worse than that!
Nevertheless, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” likely is here to stay! Despite the lack of merits to the Fifth Circuit’s decision, and the Supreme’s granting of the Biden Administration’s cert petition, I wouldn’t hold my breath for relief from either the right-wing Supremes or the feckless Dems in Congress.
Given that the program is likely to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket science:
Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, and/or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
Get a corps of Immigration Judges with established records and reputations for scholarly expertise, commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
Work with pro bono and advocacy groups and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Nolan Rappaport and I have recently written about the “largely untapped potential” of a better “qualified representative” program. Professor Michele Pistone at Villanova Law has done some ground-breaking innovative work on training accredited representatives for asylum cases in Immigration Court. But, like most other long overdue reforms, it appears to have gone over Garland’s distracted head! https://immigrationcourtside.com/2022/02/02/⚖%EF%B8%8F🗽there-will-be-no-supreme-intervention-to-stop-mpp-☹%EF%B8%8F-rappaport-pistone-schmidt-tell-how-the-administration-advocates-c/
Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.
Then, we’ll finally find out how many of those who have already passed credible fearactually qualify for a grant of asylum under a fair, competent, timely system run by experts with individuals who are well-represented! I’ll bet it’s the majority, not the measly 2% who have received grants under EOIR’s “Stephen Miller Lite” approach!
For example, during 13 years on the trial bench, I found that the majority of those referred to Immigration Court after a positive “credible fear” finding (all of the “Remain in Mexico” applicants fall in that category) qualified for asylum or some other type of protection from removal. And, like my friend and long time-colleague Professor Martin, I’ve been working on asylum issues from enforcement, advocacy, academic, and judicial standpoints, in and out of government, since before there was a Refugee Act of 1980!
So, to me, the “2% asylum grant rate” in Immigration Court for these cases,” particularly in light of some revised intentionally overly restrictive “credible fear” criteria imposed by the Trump regime, appears clearly bogus. Why hasn’t Garland looked into the systemic defects in the EOIR system, as applied to “Remain in Mexico,” that have artificially suppressed the grant rate?
Lack of lawyers, undue hinderances on gathering evidence and presenting cases, poor notice, lack of expertise, inadequate training, and anti-asylum performance by IJs and the BIA, and in some cases kidnapping, assault, rape, extortion, and other well-documented physical harm knowingly inflicted on applicants by placing them in clearly dangerous and unacceptable conditions in Mexico are just the start!
There are lots of creative ways of making our current immigration system work better! You just need the knowledge, motivation, expertise, and guts to make it happen! So, far that’s been lacking at all levels of the Biden Administration, but particularly at Garland’s “brain-dead” DOJ. Gosh, these guys make Stephen Miller look like a “creative genius,” albeit an evil and pathological one! 🤯🤮🏴☠️ Come on, man!
As many of us have pointed out, Garland, Mayorkas, Biden, and Harris could and should have had such a system up and operating by now! Outrageous and disgusting as the conduct of the 5th Circuit has been, it’s hardly unpredictable given past performance. Every day that the Administration continues to waste by not making the necessary changes at EOIR, a court system totally within their control, adds to the human misery and injustice!
So, bottom line: White Nationalist judges get life tenure from the GOP. Meanwhile, back at the ranch of the “Gang That Couldn’t Shoot Straight,” Biden and Garland retain Trump’s White Nationalist appointees and enablers at EOIR and eschew the chance to create a diverse, progressive, expert, practical, due-process-oriented, fundamental-fairness-insistent, racial-justice-committed judiciary to decide life-or-death cases that affect and influence the operation of our entire justice system and our democracy in ways that no other court system in America does! The Administration’s alarming “tone deafness” is blowing perhaps the “last clear chance” to create a “model judiciary!” Sounds like something only a Dem Administration could do. Go figure!
