"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.
Asylum seekers and lawyers must cross hostile territory, with a dearth of naturally-occurring due process, to successfully negotiate Garland’s dysfunctional EOIR. Most never make it! Death Valley Creative Commons
INSIDE THE NUMBERS FOR THE TRAC 10-09-22 IJ REPORT
NOTE: Does not account for: IJs no longer on the bench; IJs appearing in more than one location; differences among detained, non-detained dockets; profiles of high and non-high-denying courts excluded locations with fewer than four IJs listed. No guarantee of accuracy for my “hand count” — but, in accordance with the old government motto, “I did the best I could under the circumstances.”
Precipitous unexplained rise in nationwide denial rate since FY 2012, from 44.5% to 63.3%, even though human rights conditions in most so-called “sending countries” remained horrible and in some cases significantly deteriorated.See for FY2012 stats, https://trac.syr.edu/immigration/reports/306/
Lots of “Nay-Sayers” on the Immigration Bench:
92 IJs denied asylum 90% or more of the time.
Another 94 IJs denied 85-90% of the time.
Total of 186 “High Deniers” — those who denied 85% or more — significantly (21.7% or more) above already inexplicably high 63.3% national rate.
High Denying Courts (majority of IJs listed denied 85%+)
Atlanta (including ATD-Detained) (10 of 10 IJs)
Charlotte (6 of 8 IJs)
Conroe (5 of 9 IJs)
Houston (19 of 22 IJs)
Houston-Greenspoint (4 of 5 IJs)
Jena (6 of 6 IJs)
LA – North (8 of 11 IJs)
Los Fresnos (5 of 6 IJs)
Lumpkin (5 of 7 IJs)
Memphis (6 of 11 IJs)
Miami (20 of 31 IJs)
Miamii – Krome (7 of 9 IJs)
Non-High-Denying Courts (all, or almost all, listed IJs denied less than 85%)
Adelanto (5 IJs)
Arlington (3 of 25 IJs High Deniers)
Bloomington (1 of 13 IJs High Denier)
Boston (1 of 15 IJs High Denier)
Baltimore (1 of 16 IJs High Denier)
Batavia (1 of 4 IJs High Denier)
Chicago (1 of 16 IJs High Denier)
Denver (2 of 8 IJs High Deniers)
Detroit (4 IJs)
Elizabeth (5 IJs)
Imperial (5 IJs)
New York (46 IJs, 0 High Deniers) **
New York Detained (17 IJs, 1 High Denier)
Newark (3 of 16 IJs High Deniers)
Otay Mesa (7 IJs)
Pearsall (5 IJs)
Philadelphia (8 IJs)
Portland OR (4 IJs)
San Francisco (2 of 27 High Deniers)
Seattle (8 IJs)
Tacoma (5 IJs)
Van Nuys (1 of 7 IJs High Denier)
Telling stats:99.1%, 97.4%, 94.3% 90.4% — Asylum denial rates for four BIA Appellate Immigration Judges listed in the chart who continue to serve on Garland’s BIA. No wonder asylum seekers are saddled with bad law and sloppy, one-sided appellate review within Garland’s dysfunctional EOIR.
Best courts for asylum seekers: Generallyin the Northeast and Northern California: Arlington, Boston, Baltimore, New York, Philadelphia, Newark, San Francisco, Chicago.
Worst places for asylum seekers: Atlanta, Miami, Charlotte, Houston, Louisiana.
Mind-blowing stat: Compare the performance of IJs in Arlington and Baltimore with those in Charlotte, all within the 4th Circuit.
Observations:
New York, followed by San Francisco, appear to be the largest and best functioning courts with respect to actually following the generous standards for asylum seekers set forth by the Supremes in Cardoza-Fonseca, enunciated (but seldom followed) by the BIA in Mogharrabi, and to a large extent incorporated into sporadically enforced regulations.
In NY, 46 IJs, 0 High Deniers, 24 listed IJs granted at least 50% or more of the cases, denial rates ranging from 7.1% to 83.5%, still a rather mind-boggling range.The 24 IJs in the 50% or more grant range would seem like a good place for Garland to look for a model for rebuilding EOIR as a fair, due-process-oriented, subject matter expert court. He doesn’t seem interested in doing that, but it could be done with better leadership.
Although generally one would expect Detention Courts to be in the “High Denier” category, that’s not always the case. Courts like NY-Detained, Elizabeth, Adelanto, Otay Mesa, and Pearsall, all had some significant asylum grant rates. Conversely, several predominantly non-detained courts like Atlanta, Charlotte, Miami, and Houston were unseemly “dead zones” for asylum seekers. Garland’s failure to address the gross inconsistencies and abuses of asylum law going on in those and other “High Denier Courts” is disgraceful.
Overall, this is a statistical picture of a failed and dysfunctional court system where critical life or death decisions depend more on where you are and who your judge or BIA “panel” is than on the quality of the evidence or the state of the law. It has failed to deliver on its promise of being a court of widely acknowledged subject matter experts who will guarantee due process, fundamental fairness, and best judicial practices for all on some of the most important and life-determining decisions in American jurisprudence. It’s bad; and not significantly improving under the Dems!
Hon. Scott E. Bratton U.S. Immigration Judge New York – Broadway Immigration Court PHOTO: lawyer.com
Judge Scott E. Bratton of the NY Broadway Immigration Court was a “regular” before me when I was assigned to the Cleveland docket. Always well-prepared, collegial, and an outstanding brief writer and oral advocate, he had no hesitation in going to the Article III Courts when necessary on behalf of his clients. He also has a sense of humor and perspective. This great appointment should have come long ago. But, better late than never!
Hon. Denise M. Hunter U.S. Immigration Judge Sacremento Immigration Court PHOTO: Linkedin
Judge Denise M. Hunter of the Sacramento Immigration Court collaborated with now GW Law Professor Cori Alonso Yoder and me on “hands-on CLE in immigration” for the DC Bar. Following my retirement, she, Cori, and I met for lunch to “strategize” ways to make due process, fundamental fairness, and best practices the “norm” in Immigration Court, rather than the exception it continues to be! She’s now in a position to lead and teach by example to make that happen in a system where justice too often continues to be a mere “afterthought,” if that!
Hon. Becca A. Niburg U.S. Immigration Judge Hyattsville Immigration Court PHOTO: Linkedin
Judge Becca A. Niburg of the Hyattsville Immigration Court is a “self described immigration nerd” — in other words, a distinguished practical scholar in immigration, human rights, and due process for all! In addition to private practice and serving with two of the premier human rights NGOs in the DMV area, Catholic Charities & Kids in Need of Defense (“KIND”), Becca has a rich background as an immigration adjudicator at the appellate level of USCIS and as a litigator in the Office of Immigration Litigation at DOJ. She combines “insider knowledge” of the failing Government immigration bureaucracy with the skills, courage, determination, and “outside perspective” to make bureaucracy work for the common good, often in spite of itself. Can’t think of an organization more in need of that perspective these days than Garland’s dysfunctional EOIR!
Here’s a complete list of appointments with bios from EOIR:
12 Judges from predominantly private sector backgrounds;
20 Judges from predominantly government sector backgrounds (primarily DHS & DOJ, but also state and local governments and other Federal agencies);
26 Judges with known immigration experience;
6 Judges with no obvious immigration experience on their resumes — all 6 from government sector backgrounds.
This is a marked improvement over the Obama and Trump Administrations where EOIR judicial appointments ran approximately 9:1 in favor of those from government! It’s also a needed improvement over the Trump Administration’s oft-criticized tendency to place too many individuals without significant immigration experience on the EOIR bench in the apparent belief that they would be more willing to “follow orders, shut up, deny, and deport.” The precipitous drop in asylum approvals during the Trump years, despite worsening conditions for refugees worldwide, proved that there was some basis for this anti-asylum assumption.
Nevertheless, Garland’s selections tend to remain significantly “over-weighted” toward those from government.I always believed that the excuse of DOJ officialsfor the over-appointments from government given during the Obama Administration — that the applicant pool from government was so much better — was pure unadulterated BS!
Since retiring and having an opportunity to work more closely with super talented private practitioners on Round Table briefs, CLE, articles, litigation strategy, proposals for legislative reform, and clinical and classroom teaching, I can say without a doubt that the talent level out here in the private/NGO/academic section is “through the roof” — astounding — particularly compared with the intellectual and legal output of EOIR! If more of these “leading lights” — of American law (NOT “just Immigration law”) aren’t on the “short list” for the Immigration Court and replacing most of the current BIA, that’s a problem with Garland’s recruiting process, NOT with the non-government “talent pool.”
Did the Federalist Society and the Heritage Foundation just “wait to see who might apply” for Federal Judge positions — starting with the Supremes! Hell no! They “groomed” their “preferred judicial selections” for years, decades even, far in advance of any known vacancies.
If you remember, Brett Kavanaugh believed that a seat on the Supremes was his “birthright” — since about age 10 or something like that. He bemoaned the fact that nasty Dems questioning his qualifications might deprive him of his “preordained destiny.” One can never accuse right-wing zealots of not having a well-developed “sense of entitlement.” They act on it, and apologize to nobody! Compare that with Dems!
By contrast, Dems are absolutely clueless about both the importance and potential of the Immigration Courts — including the BIA, a nationwide appellate court, essentially the “12th or 13th Circuit” depending on how you count.With absolute control of these important “retail level” courts for 10 of the past 14 years, the Dems have done an extraordinarily poor job of filling judgeships with the best-qualified, progressive, most due-process-committed candidates — scholarly, practical judges who would take equal justice and racial justice in America seriously! Additionally, such individuals would be “primed, experienced, and ready” for Article III appointments when the opportunities arose!
By contrast, in the four years they controlled EOIR, Sessions, Barr, and their “acting fill-in flunkies” did an extraordinary job of weaponizing and reshaping the Immigration Courts — starting with the BIA — in “Stephen Miller’s image.” In the process, they created total dysfunction and chaos at EOIR, heaped abuse and injustice on vulnerable asylum seekers ( predominantly individuals of color, many women and children), twisted immigration law into a “Milleresque” anti-immigrant mess, demoralized and punished lawyers, busted the judges’ union, forced some of the best most qualified judges off the bench, and undermined our entire justice system. They even got EOIR to “cook” their statistics to support the nativist myth that “nobody qualifies for asylum” — ergo, all asylum seeks and their lawyers are fraudsters!
I’m on the record, many times over, as being no fan of Stephen Miller! But, his aggressive, energetic, focused, “take no prisoners,” “ignore the opposition” approach to de-constructing our immigration and justice systems certainly was more effective than anything else I have witnessed over my decades in and out of Government! He understood that time could be short, and he had to do as much damage as possible in that allotted to him. He literally was totally engaged in killing asylum and asylum seekers until the exact minute he left the White House! Dems, on the other hand, disturbingly, exhibit no leadership, urgency, sense of purpose, dynamic energy, confidence in the rightness of their cause, or plan when it comes to immigration.
“You can’t do that” was a challenge to Miller — not a deterrent! He not only did it, but got away with it!
He didn’t “study” things or fool around attempting to build support outside his “base.” If nothing else, Miller “gave lie” to the off-repeated “bureaucratic mantra” that “change takes time.”
He undid decades of hard work by those engaged in making the “Refugee Act of 1980” functional in a matter of weeks or months! And, the inept immigration bureaucracy and non-existent immigration leadership under the Biden Administration has been stymied, or simply “contented no-shows,” on undoing much of Miller’s damage!
Faced with this exceptionally well-documented disaster, and it’s undeniable corrosive impact on our democracy, Garland has been largely MIA, or AWOL might be a better term. “Action” isn’t a word readily associated with Merrick Garland.
Garland’s glacial, largely disengaged, timid, ineffective approach to EOIR reform and reconstruction is perhaps typical of Democrat Administrations and their overall approach to immigration, human rights, and racial justice in the 21st Century. But, that doesn’t make it the RIGHT approach, for the party, the Federal Judiciary, our nation’s future, and, most important, for the individuals seeking justice in Garland’s EOIR wasteland and their long-suffering attorneys.
As someone who has not represented asylum seekers in his “Houses of Horror” and who disdains engaging with those who have, Merrick Garland has shown that he is unqualified to be Attorney General of the US. His “Clown Courts” are now “Houses of Horror” that are no joke, particularly for those who have to deal with his beyond dysfuntional mess on a daily basis! Reaper Image: Hernan Fednan, Creative Commons License
I received this from a practitioner in response my earlier post about Garland’s ongoing scheduling and due process fiasco @ EOIR:
Glad you wrote this. It has been so hard. I am working 7 days a week and feel like I am losing my mind. Hopefully they start making changes, because how this is currently going is just not sustainable. Many of the Judges are not granting the continuances or making you go to the IH and giving you a hard time about it. Multiple Judges told me a month or even less notice was “plenty of time.” O boy!
“Due process cannot exist if an attorney does not have sufficient time and advance notice to prepare for a case.”
The above is an elementary statement of the minimum requirement for due process in any court setting! Yet, in the “wacky world of Garland’s EOIR” 🤯 it is being knowingly and intentionally violated hundreds of times each day!
Not only does this inhibit effective professional representation of those fortunate enough to have lawyers, but it actively discourages attorneys from taking on cases in Immigration Court, particularly those acting in a pro bono or low bono capacity. How will we interest and inspire new lawyers to get into the practice when this is the way they can expect to be treated? It’s a truly disgusting and disgraceful development!
The following letter from a consortium of practitioners, academics, and NGO leaders protests the insane, due-process-denying lack of notice and the “Aimless Docket Reshuffling on steroids” ongoing @ EOIR and makes suggestions for constructive changes to restore at least some order to Garland’s dysfunctional courts. In my view, this situation raises huge Constitutional, ethical, and policy issues affecting all justice in America! It also illustrates the incredibly poor judgement and dismissive attitude of the Biden Administration and Garland’s DOJ in approaching the most serious “life or death” issues involving human rights and racial justice!
Among the signers:
NJ AILA chapter signed on, former judges, Rocky Mountain Advocacy Network, professors, CGRS, ASAP (150,000 members), NC Justice Center, etc. Attorneys practicing in every state + DC + Puerto Rico ended up signing-on to this letter.
I am a signatory. As you know, many of us believe that the ongoing intentional deterioration of due process, fundamental fairness, and best practices at EOIR is a preventable national disgrace that is undermining equal justice and democratic institutions in America. Consequently, I think it is critical to keep this issue “in the public eye” and to demand constructive, common sense reforms at EOIR.
The “constructive suggestions” contained in the letter are great! But, it’s a colossal waste of time and resources to have unqualified bureaucrats, far removed from the actual practice before these dysfunctional “courts,” unilaterally institute these ill-advised, unethical, due-process denying changes. Then, it’s left to the “outside experts” to drop everything and “plead and beg” for common sense and sanity from an arrogant, dysfunctional system!
The American justice system can’t continue to afford to let this wasteful and highly counterproductive “clown show” 🤡 go on unabated! It’s up to everyone who cares about equal justice in America (NOT just immigration practitioners) to demand that Merrick Garland get rid of the incompetents at EOIR and replace them with expert administrators and real, well-qualified judges who are “practical scholars” in the law, understand the needs of justice, and will reform this broken system to work for the best interests of everyone in America!
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.
This gathering will bring together existing universal representation projects as well as groups considering starting/supporting new programs to reflect on best practices, adapting models while seeking to end detention, and ways to expand universal representation. The deadline to register for virtual attendance is tomorrow, October 25, 2022.
CNN: There were 227,547 migrant encounters along the US-Mexico border in September, up 12 percent from the previous month. The sharp increase in migrants from Venezuela, Cuba, and Nicaragua contributed to the uptick.
NYT: The number of Venezuelans entering the United States illegally dropped from about 1,200 a day to 150 in the first days after the Biden administration rolled out the new policies.
Reuters: The Ethiopian military and allies including troops from neighboring Eritrea have been battling forces from the northern region of Tigray on and off for two years. The conflict has killed thousands, displaced millions and left hundreds of thousands on the brink of famine.
The Hill: The Coast Guard stopped 185 Cubans on Friday, 94 on Saturday and 40 on Sunday. In total, the service says it has intercepted 921 Cubans since Oct. 1.
AP: Molina was among 13 migrants who recently arrived in the U.S. who agreed to share documents with The Associated Press that they received when they were released from U.S. custody while they seek asylum after crossing the border with Mexico. The AP found that most had no idea where they were going — nor did the people at the addresses listed on their paperwork.
CNN: It has been an endless cycle since President Joe Biden took office, according to multiple administration officials and sources close to the White House. Agency officials dream up a plan but then struggle to get White House approval, even as the problem compounds and Republicans step up their criticism. See also Immigrant advocates feel abandoned as they stare at Biden’s first-term checklist.
TRAC: According to new data obtained by TRAC through Freedom of Information Act (FOIA) requests, 480,301 people have been enrolled in ICE’s electronic monitoring program known as Alternatives to Detention (ATD) between August 2020 and June 2022. Many of these individuals, about 196,000, were previously active in ATD but have since ceased to be monitored under ATD, while 284,000 immigrants were still in ATD as of the end of June.
TRAC: As of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because Department of Homeland Security officials, chiefly Border Patrol agents, are not filing the actual “Notice to Appear” (NTA) with the Immigration Court. Without a filed NTA, the Court has no jurisdiction to hear the case.
GBH: Police in New York arrested about 57,000 unlicensed drivers a year before state lawmakers narrowly approved the Green Light Law in 2019, making most immigrants eligible for licenses regardless of their legal status. In 2021, those arrests declined to about 30,000 and are on a similar pace for this year, according to records obtained by GBH News from the New York State Unified Court System.
Block Club: As a major city that attracts immigrants, Chicago specifically has been struggling to support the recent influx of asylum seekers. After dealing with cuts under the Trump administration and then the COVID-19 pandemic, immigrant serving organizations’ resources were already strained before the war in Ukraine and the U.S. withdrawal from Afghanistan and subsequent Taliban takeover sent thousands of refugees and asylum seekers to Chicago. The recent arrival of migrants from Texas has only added to the strain on organizations’ resources, including legal services and representation.
LexisNexis: He argues that the immigration judge (“IJ”) applied the incorrect legal standard in assessing whether he would more likely than not be tortured with the “consent or acquiescence” of the Honduran government, and that the BIA erred in its review of the IJ’s decision. He also argues that the BIA failed to consider whether the Honduran government would likely torture him and whether the MS-13 gang is a de facto government actor. We agree that the agency erred in these respects, and we therefore grant his petition for review, vacate the order of the BIA to the extent it denied him CAT relief as to Honduras, and remand for further proceedings consistent with this opinion.
CA1: We thus remand for the BIA to consider in the first instance whether Chavez’s proposed social group satisfies the requirements for constituting a particular social group under the INA to which he belongs. We express no opinion as to the merits of that issue other than to emphasize that the BIA cannot reject such a group based solely on its determination that current or former gang members cannot form a particular social group.
LexisNexis: The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT.
LexisNexis: We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.
Law360: The state of Texas on Wednesday agreed to drop its challenge to a provision of the pandemic-era Title 42 policy which exempted unaccompanied minor migrants from being expelled from the U.S. during the COVID-19 pandemic.
Law360: An Illinois university professor and students can’t stop the Biden administration from enforcing a Trump-era policy barring student visas to Chinese nationals who are connected to any entity in China that supports its “military-civil fusion strategy,” a federal judge has ruled, denying the plaintiffs’ bid for a temporary restraining order.
Law360: A class of foreign-born military recruits who sought $10 million in attorney fees after winning back their expedited path to naturalization two years ago have settled for $2.75 million in the interest of conserving resources and avoiding further litigation risks.
AIC: Several legal services organizations filed a lawsuit today against Immigration and Customs Enforcement (ICE) for unlawfully preventing attorneys from communicating with immigrants detained in four detention facilities in Florida, Louisiana, Texas, and Arizona.
USCIS: U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Jan. 24, 2023, to assist applicants, petitioners, and requestors.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
But immigrant advocates note that some of their demands aren’t contingent on Congress or the courts, which makes it all the more exasperating as to why the administration has failed to deliver.
Some told POLITICO they simply wanted to see the administration remedy the harm caused by the Trump administration’s family separation policies. Others want to see follow-up on early proposals to protect immigrant workers in labor disputes.
The administration further angered the community last week when it announced plans to use the Trump-era pandemic policy, Title 42, to expel Venezuelan migrants crossing the border illegally as part of its new humanitarian parole program for them. Advocates decried the expansion of Title 42, which the Justice Department is fighting in court, as a continuation of the Trump “playbook.”
. . . .
The biggest, most significant “unforced error” by the Biden Administration has been the failure to “clean house” at EOIR and to reform the Immigration Courts to be a model of great, scholarly, humane judging, and a bastion of due process, fundamental fairness, and best judicial practices.
The Federalist Society and the Heritage Foundation set forth a successful “blueprint” for a far-right takeover of not only the Immigration Courts, but the entire Article III Judiciary. The Trump Administration adopted and successfully followed it!
By stark contrast, the Dems have failed to act timely and decisively on the one all-important Federal court system that they completely control! EOIR is a system that probably has more impact on the future of America — or whether there will even be a future America — than any court short of the Supremes!
Garland’s dismissive treatment of the informed views of immigration, human rights, and racial justice experts — who have had “hands on” experience with “America’s most dysfunctional courts” (the Immigration Courts) — has undermined our legal system and hamstrung almost every other progressive social justice initiative — from voting rights to abortion!
Garland’s failure to bring in experienced, dynamic, inspirational, respected, “Tier One” progressive practical scholar/leaders — folks like, for example, Dean Kevin Johnson, Professor Karen Musalo, Marielena Hincapie, Professor Phil Schrag, Margaret Stock, Professor Michele Pistone, and Judge Dana Leigh Marks — to clean up EOIR, kick some tail, and create “the best, fairest, most efficient courts in America” — is beyond inexcusable!
Dems are a self-inflicted mess when it comes to immigration — apparently because those “calling the shots” are more “Stephen Miller Lite” than they are Julian Castro and other Democrats who understand the essential importance of immigrants and of standing up for their rights — starting with the “retail level” of American justice.
As one frustrated experienced practitioner recently told me: “Biden’s entire immigration policies are a train wreck. He didn’t take the action he said he would. The practice of immigration law is soul crushing.”
“Soul crushing!” Those words should be a “wake up call” to the “tone deaf” policy honchos in the Administration. It shouldn’t be this way in a Dem Administration that was elected because they promised to do better and to stand up to the lies, myths, and false narratives of the nativist right! Once in power, Dems don’t seem to be able to distinguish between their friends and their adversaries. That’s proven NOT to be a “formula for success!”
For every immigrant/racial justice advocate that the Biden Administration wears down and demoralizes, two “new recruits” for the NDPA will arise, fully energized to keep litigating, winning, and raising hell until due process, human rights, fundamental fairness, and racial justice get some long overdue ACTION. Based on results to date, that means continuing to “beat Garland’s brains out” in court! The talent and creativity is obviously “out here,” not in Garland’s “Halls of (In)Justice!” Given that the “Stephen Miller Group” is also challenging the Administration in court, Garland will eventually find himself doing nothing but litigating immigration issues and getting walloped by both sides!
Meanwhile, as the Administration daily fails on immigration, human rights, and racial justice within the Executive Branch, my mailbox and message box are overflowing with desperate requests from Dem politicos, from Joe, Kamala, Nancy, and Chuck on down, for more donations of money and time. But, once the election cycle is over, our views are ignored, and we are treated as “PNGs.” Meanwhile, those who actively undermined immigrants’ rights and diminished due process are rewarded or retained in key positions where they continue to heap damage on the most vulnerable among us and frustrate their supporters.
Doesn’t seem like a sustainable future for the Democratic Party or for American democracy! But, hey, I’m just a retired Immigration Judge. Maybe my friends in the social justice movement enjoy being treated as “chopped liver” — frozen out and ignored — once they have helped elect Dems.
Republicans boldly “run on the big lie.” Meanwhile, Dems “run from the truth” about immigrants and their all-important role in America’s future! Go figure!
A quote from a recent NY Times article struck me as aptly summarizing the failure of leaders of both political parties to take an honest, creative, and practical approach to the opportunity presented by continuing human migration:
Immigration in the United States is broken, but one side of the fence wants to study the root causes of the problem, and don’t want to see what’s happening right here,” Mr. [John] Martin [deputy director of the Opportunity Center for the Homeless in El Paso] said, squinting beneath the brim of his cowboy hat. “And the other side wants to build a wall which would become a dam and eventually burst.”
Former AG Jeff “Gonzo Apocalypto” Sessions went to the border to preach his “gospel” of anti-immigrant hate, lies, nativist myths, and to “fire up” officials for one of the biggest unconstitutional abuses of prosecutorial authority in modern American history. Indeed, that is when one reporter coined the term “Gonzo Apocalypto” to describe the absolute nonsense spewing from Sessions’s mouth.
Sessions orchestrated a vile “strategy” of family separation from which the victims haven’t yet, and may never, fully recover. Interestingly, he has also escaped accountability.
By contrast, Garland, to my knowledge, has never bothered to visit the border and engage first-hand with the human carnage his failed “courts” and abuse of both the Constitution and asylum law inflict on others. He interacts neither with those outside government trying to uphold the rule of law nor the enforcement officials given “mission impossible.” He absolves himself from observing the effect that his failure to carry out orderly, humane, legally compliant refugee and asylum processing — using existing law rather than extralegal “gimmicks” — has on communities on the border and in the interior.
Sessions was a vile, intellectually dishonest, and immoral leader; Garland is simply a failed and disengaged one. But, the difference might not be readily apparent to most practitioners laboring in the foul trenches of Garland’s dysfunctional “court” system.
From my observation, there are folks out here interested in, and capable of, addressing the opportunities, potential benefits, and challenges presented by the inevitability of human migration in the 21st Century. Most of them, unlike “pontificating politicos,” have, at some point, “walked the walk” with those humans caught up in the migration dilemma, on both sides of the border.
But, leaders of neither party are interested in the constructive ideas and solutions developed within the rule of law that these unusually talented and dedicated individuals can offer. As long as that is the case, the realities of human migration, false promises, racially driven bias, and wildly inconsistent application of justice in America will continue to vex both politicians and the voters who put such “non-problem-solvers” in office!
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable! The Wasp 1882-01-06 cover Slow but sure.jpg Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man. George Frederick Keller Public domain
Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:
The publisher’s description of the book reads as follows:
“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.
Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”
KJ
**************************
The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system!
That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.
They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!
Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,
Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:
Maya Barak, Ph.D.
Associate Professor of Criminal Justice Studies
Maya P. Barak, PhD Assistant Professor of Criminal Justice Studies U. of Michigan -Dearborn PHOTO: UM-D Websitew
Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies
Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime
Biography and Education
I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.
Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.
Selected Articles
Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).
Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.
Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)
Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.
Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!
What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!
Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
We’re not going to defeat fascism by talking about policy. Nor by issuing grave warnings. Nor by praying for the rain of indictments. Nor by despair.
We are going to defeat it by outcompeting it. Here is a proposal for how we can do that right now.
**********************
Watch the compelling “spot on” video at the above link. Many thanks to my friend Charles Kuck for passing this on!
The Dems once were the “party of practical problem solvers” — particularly at the local level with great organizations that effectively addressed issues on the minds of the local populace. After all, it was Dem House Speaker, the late Tip O’Neill, who famously said that “All politics is local” (although, perhaps contrary to popular notions, he did not “coin” that phrase.)
It’s not that today’s GOP solves problems. Far from it! Indeed they specialize in division, destruction (“the wrecking crew”), and making things worse. (How would you like to go to GOP Rep. MTG or Virginia GOP Gov. Glenn Youngkin to get help with mistreatment of your trans kid in school? Good luck with the one!)
Yet the GOP does excel in one area. That is channeling and fanning the rage, bitterness, and anger of folks in the community who feel left out or that “the system” has betrayed them. They are also great at using that collective anger and resentment for their own political ends — usually anti-democracy actions or picking on, demonizing, and falsely blaming vulnerable groups in society for all their ills.
Anand says it’s time for Dems to get back to communicating and problem solving: “outcompeting” and “outperforming,” if you will! That’s certainly true on a larger scale. But, it’s also true at Garland’s dysfunctional EOIR. There, bureaucratic nonsense, “built to fail gimmicks,” and false “deterrence rationale” have replaced scholarship, timeliness, and practical problem solving directed at the achievable, yet inexplicably elusive, “common good.” Time for a difference approach at the critical, yet often ignored, “retail level” of democracy!
In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.
A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4
By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7
A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9
Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.
The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:
I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12
Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.
Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:
By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15
In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16
Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18
When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.
Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.
In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.
According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22
Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.
Copyright 2022 Jeffrey S. Chase.All rights reserved.
Notes:
466 U.S. 668 (1984).
Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).
Id.
The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.
12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.
20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).
21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”
22.Private email to the author.
*****************************
Republished by permission.
As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”
This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.
Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing!
Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum.
“Lozada reform” is long overdue. But, so is meaningful EOIR reform!
Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.
Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”
Many immigration issues are divisive. Protecting dreamers is not. Virtually every poll conducted on the subject finds that Americans of all political persuasions favor granting dreamers some form of permanent legal status, including a path to citizenship. Even Trumpers are on board, surveys show. Faith groups, law enforcement officials, employers, national security experts and other major constituencies besides typical bleeding-heart immigration advocates have urged Congress repeatedly to grant these young immigrants greater legal certainty.
Unfortunately — as is the case on so many issues — Congress has abdicated its responsibility to act. Instead, the executive branch has been tasked with devising temporary workarounds.
In 2012, the Obama administration announced a sort of Band-Aid solution, known as the Deferred Action for Childhood Arrivals (DACA) program. DACA offers some of these young immigrants access to (temporary) work permits and protections from deportation, which must be frequently renewed. Eligibility extends only to those who meet certain age and educational requirements, have lived here continuously since 2007 and pose no threat to public safety, among other conditions.
This program was generally expected to be a stopgap while Congress worked on broader immigration reforms or at least a pathway to citizenship for dreamers; so far, neither has materialized.
[As DACA immigrant program turns 10, legal challenges persist]
In the decade since it was introduced, DACA has weathered multiple legal challenges — including from a coalition of red states led by Texas, as well as attempted repeal by President Donald Trump. For now, the program remains mostly intact while the red-state challenge wends its way through the courts. But DACA’s days look numbered.
. . . .
This is hardly the only immigration issue on which Republican politicians have complained about executive overreach yet been reluctant to exercise their own powers. Other vulnerable, sympathetic populations of immigrants — such as the Afghan allies who were temporarily “paroled” into the United States — are stuck in their own legal limbo unless and until Congress acts.
But it’s always easier for politicians to grandstand over everyone else’s immigration policy choices than to produce solutions of their own.
**********************
Read Catherine’s complete article at the link.
How stupid and cruel is the GOP’s assault on Dreamers? It’s not like most “Dreamers” are going anywhere. After all, there are already about 2 million individuals (not to mention family members, employers, etc.) backed up on Garland’s dysfunctional Immigration Courts. And, under Garland’s misguided leadership, more judges are actually building more backlog!
But, without DACA’s work authorization, those not eligible for other forms of relief (e.g., asylum, cancellation of removal) will lose their authorization to work. Since many are in critical or essential jobs with employers who can’t afford to be out of compliance with Federal laws, it’s reasonable to assume that Dreamers would lose those jobs. That means that many will have to take lesser jobs in the substantial “underground economy” operating in the U.S., largely as a result of the GOP’s obstinance on sensible immigration policy.
If that appears stupid, it’s because it is! But, what else is new with the GOP’s cruel, xenophobic, and unrealistic approach to immigration.
It’s remarkable that out of touch righty judges on the 5th Circuit, whose jobs and existence actually depend on the systemic non-prosecution of most Federal offenses, would actually have the gall to issue their off the wall ruling dumping on Dreamers! In reality, by necessity, only a small number of violations of Federal statutes are prosecuted. See. e,g., https://prisonprofessors.com/federal-crimes-to-prosecute-or-not/.
The Fifth Circuit’s “off the wall” apparent theory that Federal officials lack discretion to redirect prosecution resources toward the most serious offenders is pure “Federalist Society political poppycock!” It’s particularly out of bounds to critique the Feds for taking steps to insure that such discretion is exercised uniformly and reasonably, rather than arbitrarily and capriciously.
I had lots of experience with “PD” programs over four decades in Federal service. The DACA program is far and away the premier “model” program for the effective and rational exercise of PD.
The major impediment to the rational immigration law and policy adjustments America needs is today’s nativist-driven GOP. Unless and until enough American voters wise up and throw the GOP out at all levels, America will not achieve it’s full potential!
Garland’s “vision of justice” for asylum seekers and other migrants at EOIR leaves something to be desired:
Folks with wrong-headed “take no prisoners” views on asylum law were “rewarded” with “ judgeships” at both the trial and appellate levels of EOIR under the Trump Administration. Many continue to serve and discriminate against legitimate asylum seekers under Garland. Just check out the number of “sitting IJ’s” with outrageously high “asylum denial rates” near or in excess of 90%, according to TRAC Immigration. Why haven’t these important, non-life-tenured positions been “merit re-competed” to place the “best, brightest, and most qualified” on the Immigration Bench? Albrecht Dürer, Public domain, via Wikimedia CommonsJaundiced attitudes about women (particularly those of color) and gender-based asylum claims among EOIR judges have neither been “rooted out” nor effectively addressed by Garland. As we can see, de-humanization of women and stripping them of dignity under asylum laws carries over into other legal arenas! Targeted, endemic. societal persecution of women is often intentionally minimized and mis-characterized as “random violence,” “personal disputes,” “mere jealousy,” or “not that serious” in Immigration Court! “Fictionalized accounts” of the ability of abused women to seek protection from authorities in countries where femicide and rape are rampant are sometimes employed to deny legitimate asylum claims in Garland’s broken courts. Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsWrong , “unduly restrictive,” asylum precedents and discredited methods (“Aimless Docket Reshuffling” — on steroids under Garland — is a key example) continue to harm asylum seekers in Garland’s dysfunctional “courts.” — Public Realm
on WANTED: Examples of racism and other bias in US immigration court
. . . .
The nation’s Immigration Courts have—thus far—flown under the public’s radar screen. Yet these are the places where life-or-death decisions are made, often for subjective and even racist reasons. That is why the Ohio Immigrant Alliance is collecting examples of racist, misogynistic, Islamophobic, and other biased statements and decisions made by Immigration Judges from across the country. We are working with a research team to analyze the cases and produce a report in early 2023. Here are a few examples.
Contact Lauren Hamlett (hamlett.15 AT buckeyemail.osu.edu) for more information or to share examples. This can be in the form of court documents and judges’ decisions or an interview with an immigrant or attorney. We will adhere to all privacy requirements requested by the immigrant and not publish anything without their consent.
The report, to be published in 2023, will shine a light on how racism shows up in Immigration Court using real-life examples. These findings will enrage anyone who believes the U.S. should work toward becoming a nation that guarantees “justice for all.”
See this testimony for more information, and contact Lauren to share your experiences.
*******************
I was struck by the undeniable truth — scandalously ignored by Garland, his lieutenants, and Biden Administration policy officials — contained in the January 20, 2022 statement by Lynn Tramonte, Ohio Immigrant Alliance, to the House Judiciary Committee considering the need for an independent, professionally-administered, merit-based Immigration Court.
The U.S. Is Deporting People Who Qualify for Asylum
The current U.S. immigration system is not designed to function fairly, but to fail. There are many examples of this, but today I will focus on examples from the U.S. Immigration Court.
Lynn’s full statement is available at the “this testimony” link above. I’ve made this point over and over!
Because the current system is purposely biased against asylum seekers, particularly those of color arriving at our Southern border, the “statistics” purportedly showing that few will qualify for asylum are totally bogus! Then, they are inexcusably cited by so-called “mainstream media” who haven’t done their homework! This perpetuates the “nativist myth” of the “illegitimate asylum seeker” which is then used to dehumanize refugees and deny them their legal and human rights!
Fact is, because we don’t have a legitimate, expert asylum adjudication system, we don’t really know how many qualified refugees are being illegally turned away or denied. But, it’s a safe bet that a fair, expert, professionally administered asylum system would grant legal protection to many more — probably a majority — of those who pass credible fear!
The problem is NOT, as Sessions and other nativists claimed, that too many individuals pass “credible fear.” It’s that a biased, anti-asylum, mal-administered, and constitutionally flawed system wrongfully denies far, far, far too many legitimate claims! And, Garland’s incredibly dysfunctional EOIR is at the heart of this problem!
Fixing EOIR is an essential first step in “re-legitimizing” our entire floundering justice system. But, Garland isn’t up to the job!
Asylum is an important form of legal immigration and an opportunity for America to put its best foot forward by properly, fairly, and timely screening and admitting those who can qualify for refuge and will be key contributors to our nation’s future. The babble of GOP nativists like DeSantis, Cruz, Abbott, and others about “illegals” is total BS!
It’s an ongoing national disgrace that Garland has failed to reform his Immigration Courts, eliminate bias and invidious discrimination from his judiciary, install quality, expertise, and professionalism, and insist that the Biden Administration abandon “Miller Lite,” nativist policies and mis-interpretations of the law that are diminishing our nation and endangering our future; that he also has ridiculously chosen to “go to war” with experts, NGOs, attorneys, and others seeking to change and improve his disgraceful mess at EOIR!
What’s the purpose and function of an Attorney General who operates broken and biased “courts,” defends the indefensible, and refuses to stand up for the fair application of the law to some of the most vulnerable among us?
In the meantime, submit your “real life” examples of what really happens to vulnerable humans in “America’s worst courts” to Ohio Immigrant Alliance at the above link.
The wheels are off and the wagon rotting away at EOIR! PHOTO: Creative CommonsAlfred E. Neumann has been “reborn” as Judge “Teflon” Merrick Garland! “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
The undersigned 106 legal service providers, court observers, and allied organizations located in the cities where the Dedicated Docket now operates. Together, we have observed hundreds of cases on the Dedicated Docket throughout the country. Our collective experience reveals a process rife with unfairness: lack of legal representation, expedited and arbitrary timelines, removal orders against pro se respondents (including young children), as well as courts marked by confusion and in some cases hostility.
What’s going on here!? As due process and equal justice are trashed, and lives and futures endangered, some of the best legal minds in America are forced to spend time pointing out the obvious to our “disconnected from reality” AG! What a waste!
This inexcusable disaster was totally predictable in advance! NO expert recommended this stupid, “sure to fail” “haste makes waste” approach to asylum in a faux “court system” already reeling from bias, management incompetence, hostility to due process, worst practices, far too many poorly qualified judges (some selected by Sessions and Barr for their perceived willingness to “railroad” asylum seekers), a notoriously anti-asylum appeals board, and rock bottom morale! Yet, Garland went ahead!
And NOBODY among his subordinates — not DAG Lisa Monaco, not AAG Vanita Gupta, not AAG/Civil Rights Kristen Clarke, not SG Elizabeth Prolager— at the DOJ had the guts to stand up and JUST SAY NO to his life-threatening nonsense. They all share the blame for this completely avoidable blot on our justice system and on their records (something progressives should remember when these irresponsible folks show up looking for jobs someday, as they inevitably will).What a disgrace! It didn’t have to be this way!
Why isn’t practice before the Immigration Courts and demonstrated commitment to human rights and due process a MINIMUM requirement for being the Attorney General or a top DOJ official in a Democratic Administration? No more “ivory tower” “tone deaf” appointments to key justice jobs from Democrats! End the deadly, wasteful nonsense! How many more innocents will be abused and systemically denied fundamental justice by EOIR before Biden and Harris pay attention to what’s happening “on their watch?”
And, folks, don’t forget the almost unfathomable “system costs” of having the knowledge, creativity, energy, and resources of these 106 organizations tied up in resisting and publicizing Garland’s stupidity and disdain by for equal justice and racial justice in America! They should be running EOIR, issuing great precedents on the BIA, solving problems in a practical, humane, legal manner as Immigration Judges, and redoing the broken and dysfunctional administrative system at EOIR.
The knowledge, personnel, creativity, and courage to establish a “model due process court system” are available “out here” — in spades. Instead, this avoidable human rights and racial injustice disaster is inflicted on our nation and some of the must vulnerable therein, by a tone-deaf Democratic Administration unwilling or unable to live up to their campaign promises! Disgusting! 🤮
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.
NPR: This has been the deadliest year ever for migrants trying to cross the U.S.-Mexico border. More than 800 migrants have died border-wide in the fiscal year that ends this week, according to internal government figures shared by a senior Border Patrol official.
NYT: For now, the changes are tiny; only 99 people since the end of May have completed what are called asylum merits interviews with an asylum officer and been fully evaluated under the new rules. Of those, 24 have been granted asylum, while most of the rest have had their cases sent back to the immigration court system for an appeal.
NYT: The decision to leave the cap at 125,000 was a contrast with the Trump administration, which severely restricted entry, but advocacy groups said migrants were still processed too slowly.
CNN: National security adviser Jake Sullivan and homeland security adviser Liz Sherwood-Randall, among other White House officials, met with the representatives of 19 countries at the White House to iron out the implementation of that declaration and appoint a special coordinator for each country, according to the senior administration official.
Intercept: The Warden of what was once one of the nation’s most notorious immigration detention facilities was arrested this week after allegedly killing one migrant and wounding another in the desert of rural West Texas.
Forbes: Compelling new research finds immigrants, including those with less than a high school degree, provide enormous fiscal benefits and a significant subsidy to U.S. taxpayers.
Reuters: In the first eight months of 2022, Royal Canadian Mounted Police intercepted 23,358 asylum-seekers crossing into the country at unofficial entry points, 13% more than all of 2017, when an influx of border-crossers at Roxham Road, near the Quebec-New York border, made international headlines.
Politico: Because cannabis remains illegal at a federal level, all employers — even those licensed at the state level — lack access to E-Verify, a government service that helps businesses verify immigration status. They also cannot use visa programs like H-2A and H-2B, which facilitate legal immigration of farmworkers in other industries… The Oregon legislature in the last 12 months set aside more than $31 million for law enforcement and advocacy groups working to combat illicit cannabis cultivation and help undocumented workers in the industry.
NPR: What is the connection between climate change, the movement of people around the globe, and the rise of xenophobic politicians? That’s the overarching question we’re hoping to answer with this reporting trip.
Law360: The U.S. Supreme Court on Monday agreed to review whether the Fifth Circuit was right to reject a Guatemalan woman’s deportation case on the grounds that she hadn’t gone through a final round of administrative appeals.
Law360: The Third Circuit has affirmed an Eastern District of Pennsylvania federal judge’s rejection of a Dominican Republic citizen’s appeal of his conviction on firearm and immigration law offenses — albeit for different reasons than the lower court.
Law360: The State Department will not have to schedule visa interviews for 12 winners of the 2022 Diversity Visa Lottery, after a D.C. federal judge found that the selectees didn’t show a high likelihood of proving that the Biden administration unlawfully delayed their interviews.
Law360: An Ohio federal judge on Wednesday said the U.S. Board of Immigration Appeals wrongly tossed a woman’s visa petition for her Ghanian husband over a previous “sham marriage,” saying whether the prior marriage was actually fake was open to dispute.
Law360: The American Civil Liberties Union on Wednesday hit the U.S. Department of Homeland Security with a Freedom of Information Act lawsuit in D.C. federal court, accusing the agency of improperly withholding access to records regarding U.S. Immigration and Customs Enforcement detainees’ access to counsel.
AP: The request comes in a lawsuit filed by migrants seeking compensation from the government after thousands of children were taken from parents in a policy maligned as inhumane by political and religious leaders around the world. Settlement talks with attorneys and the government broke down late last year.
AP: A companion complaint Wednesday to the office of civil rights at the U.S. Department of Homeland Security documents retaliation, including restrictions on access to legal representation and a falsified accusation of misconduct against an immigrant under the Prison Rape Elimination Act.
Reuters: Two U.S. government employees said they experienced retaliation after they sounded alarms about the conditions at Fort Bliss, which has been used for emergency housing since March 2021, according to the report issued by the U.S. Health and Human Services (HHS) inspector general’s office.
USCIS: The Department of Homeland Security (DHS) today announced an extension of Temporary Protected Status (TPS) for Burma for an additional 18 months, from Nov. 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Despite disingenuous claims otherwise, the overhyped “launch” of asylum “reform” has been a “dud” — producing little for the Administration but even less for legitimate refugees and due process advocates caught up in the mind-boggling dysfunction of the failed Mayorkas/Garland asylum system. PHOTO: NASA/Joel Kowsky Public Realm
As border deaths continue to soar, nativist GOP Governors use humans as political pawns, and conditions in refugee sending countries deteriorate, the Biden Administration’s failed human rights/racial justice bureaucracy has no answers!
By attempting to replicate, remarkably even touting, the unrealistically high denial rates produced by the previous system — too often the result of badly flawed adjudications, poorly trained officers and judges, lack of effective representation, chronic systemic anti-asylum bias, and overly restrictive, anti-asylum precedents produced by a BIA loaded with anti-asylum zealots by the Trump Administration — Mayorkas and Garland have basically guaranteed continuing human rights abuses and defective adjudication of claims.
Truth is, even during the height of the overt anti-asylum program of the Trump Administration, approximately 70% of those whose claims were “referred” by the Asylum Office were eventually granted protection in Immigration Court.
According to Human Rights First (“HRF”), an international human rights organization, in Fiscal Year 2021, 68% of asylum cases referred to immigration court by the AO were subsequently granted protection.[1] With nearly 70% of claims being granted in FY2021, this represents a clear and apparent waste of judicial resources.
And, this was with a legal system with overly restrictive precedents that clearly and improperly manipulated generous asylum laws AGAINST refugees, often hindered effective representation, and was “overseen” by many Immigration Judges who were hand-selected or retained by the Trump DOJ because they were “programmed to deny” asylum at outrageous rates. By granting only a pathetic 24 of 99 cases that actually were decided over four months, and “referring” the rest to Garland’s beyond dysfunctional “courts” (currently fighting an indescribably stupid all-out “war” with NGOs and pro bono attorneys), Mayorkas hasn’t come anywhere close to “leveraging” the system to locate, prioritize, timely grant many more legitimate cases, and drastically reduce the huge number of unnecessary referrals to EOIR.
Rather than “cleaning house” at USCIS and EOIR, bringing in dynamic, qualified leaders, expert adjudicators and judges who can timely recognize the many legitimate claims, working with NGOs and pro bono groups to get all asylum seekers represented, and utilizing the expert training resources that currently exist outside Government, Mayorkas and Garland are perpetrating the same anti-asylum myths spewed out by Miller, Trump, and company! Essentially, instead of fixing the fatal flaws in the current system, the Biden Administration has chosen to institutionalize and expedite them! That’s insane!
The Biden Administration’s failure to do the butt-kicking, bold, thoughtful work necessary to establish robust, timely, efficient, refugee and asylum systems is dragging down our legal system, promoting racial injustice, perpetrating xenophobic myths, advancing “worst practices,” harming, sometimes killing, legitimate refugees fleeing repressive regimes, and denying American communities legal residents who could be using their skills to help build a stronger economy and a better future for America.
With thousands of asylum seekers from countries where persecution is well-documented being “orbited” by nativist GOP Governors, the Biden Administration was presented with a golden opportunity to work with NGOs, states, and local governments to coordinate resettlement, get them competently represented, and grant asylum in a fair and timely manner, thus demonstrating how an improved asylum system could work with proper staffing, attitudes, and legal guidance. Instead, the Administration has chosen to waste time on a “thudding dud” of a pilot that shows a stunning lack of leadership, courage, imagination, initiative, humanity, and respect for the rule of law!
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum ClinicProfessor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies PHOTO: GeorgetownLawProfessor Jaya Ramji-Nogales, Associate Dean for Academic Affairs I. Herman Stern Research Professor Temple Law PHOTO: Temple Law
Here’s the abstract of the latest “practical scholarship” from the RR3:Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogles, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,” which will appear in the Howard Law Journal:
The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem
In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.
This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.
Keywords: Asylum, Asylum adjudication, Asylum process, Expedited removal, Immigration, Legal ethics, Due process, Administrative law
JEL Classification: K39
Suggested Citation:
Schrag, Philip G. and Ramji-Nogales, Jaya and Schoenholtz, Andrew I., The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem (September 29, 2022). Howard Law Journal, Vol. 66, No. 3, 2023, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233655
*********************
New regulations pasted on old anti-asylum, anti-lawyer, anti-due-process attitudes and relying on an ever more dysfunctional EOIR, now at war with the asylum bar, won’t cut it! Albrecht Dürer, Public domain, via Wikimedia Commons
You can download the complete article from SSRN at the above link.
Expect the Biden Administration to “blow off” the suggestions for improvement at the end of the article. They seem to glory in “tuning out” the views of practical experts who know how to fix the broken asylum adjudication system.
As I predicted when these regulations first came out, they were “programmed for failure.”
Due-process-denying, representation-killing, arbitrary time limits imposed from above have been tried by Administration after Administration. They have always failed and will continue to do so. So, why are they a key part of the Administration’s so-called “reforms?”
Compare the article’s discussion of the importance of representation and the practical and ethical problems caused by the new regulations with the reality of the “nutsos” ways EOIR is mis-treating attorneys currently trying to practice before the Immigration Courts!
Additionally, the unwarranted, yet largely self-fulfilling assumption by the Biden Administration that only 15% of asylum applications would be granted at the “Asylum Office stage” show why this program was designed to fail by the wrong officials. For the system to meaningfully address the Immigration Court asylum backlog, the grant rate would have to be multiples of that — probably at least 50%.
That’s a realistic projection, given the well-documented, atrocious human rights conditions in most “sending countries” and the current artificial limitations on grants imposed by bad precedents and flawed, biased, or incompetent adjudications. When I was at the Arlington Immigration Court from 2003-16, a significant majority of the “referrals” from the Asylum Office were granted asylum, withholding of removal, or CAT protection, often with concurrence or only token opposition by ICE. That suggests that there is a huge unrealized potential for many more timely asylum grants at the Asylum Office. But, success will never be achieved with the current “anti-asylum, afraid to correctly and fairly implement refugee law gang” in charge — committed to retaining the bad attitudes and repeating the mistakes of the past!
Hanging over the whole disaster is the “uncomfortable truth” that I’ve been shouting:
The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” for assertingthem.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.
Indeed, this entire “reform effort” is essentially “upside down.” It’s a “designed to fail” attempt to avoid the broken and malfunctioning Immigration Court system without dealing with the REAL problem: EOIR!
Without the necessary progressive personnel and structural reforms at Garland’s EOIR (“clean house” of unqualified, under-qualified, or misplaced administrators and judges from past Administrations), the cultural changes (“out with the anti-asylum, anti-immigrant, racially challenged, too often misogynistic, EOIR culture”) it would bring, and most of all, the substantive changes to align asylum law with due process, best practices, and the generous interpretations that were foreshadowed by the Refugee Act of 1`980 but have been intentionally suppressed by politicos of both parties, there will be neither justice nor stability in our asylum and immigration systems, nor will there be equal justice for all, including racial justice, in America!
Even my esteemed “RR3” friends understate the debilitating effects of the ever-worsening dysfunction at EOIR and Garland’s failure of leadership on due process and human rights!
Perhaps the most telling statement in their article is this: “Asylum officers are more highly trained in asylum adjudication than immigration judges . . . .”Why, on earth, would that be?
Why isn’t the BIA led and comprised of internationally-respected asylum experts like Schrag, Schoenholtz, Ramji-Nogales, and others like them? Why aren’t all Immigration Judges drawn from the ranks of universally-respected “practical scholars” in asylum and human rights?Plenty of them are out here! Why aren’t they on the bench? Why is the Biden Administration running a “D-Team Judiciary” at EOIR rather than “the world’s best administrative tribunals, guaranteeing fairness and due process for all” as EOIR was once envisioned? What’s the excuse for lousy training at EOIR when top-flight “modulated” asylum training is available from expert sources like Professor Michele Pistone’s innovative VIISTA Villanova program? What’s the excuse for the colossal EOIR failure that threatens lives and our democracy on a daily basis? Why aren’t alarm bells going off at the White House about Garland’s failed stewardship at EOIR?
Reforming the asylum system, starting with EOIR, could also potentially have big societal and economic benefits for America. Asylees gain legal status, can work, get in line for green cards, eventually become citizens, and realize their full potential as productive members of our society. Not incidentally, they also become regular taxpayers and can help bolster essential enterprises and infrastructure improvements.
For example, just yesterday the Portland (ME) Press Herald featured an article about the critical, chronic shortage of workers in Maine. https://www.pressherald.com/2022/10/02/how-can-maine-solve-its-workforce-crisis/ Why isn’t the Biden Administration working with Maine authorities, NGOs, and economic development groups to “fast track” asylum approvals for those who might be persuaded to resettle in Maine to take advantage of these economic opportunities, for everyone’s benefit? Mainers also are suffering from a shortage of affordable housing. I’ll bet that with a little “seed money,” there are enterprising, skilled groups of potential asylees who could help build and maintain affordable housing for communities in need, in Maine and elsewhere in the U.S. Why are they instead “rotting at the border” or being aimlessly “orbited” around America by nativist GOP governors trying to score political points with their White Nationalist base?
By adopting the nativists’ dehumanizing mis-characterization of asylum seekers as a “problem” to be measured in “numbers,” deterred, and held at bay, the Administration is missing a golden opportunity to achieve some much-needed “win-wins.” Why run bone-headed “built to fail, haste makes waste” asylum pilot programs in a few cities rather than trying things that might work to everyone’s advantage, as I have described above?
At a time when many in America are finally learning the truth about our disgraceful failure to offer refuge to Jews during the period leading up to the Holocaust from the Ken Burns documentary, we (our at least some Americans) appear to be committed to making the same mistakes again. We should not undervalue the lives and contributions of refugees because of systemic or structural boas against certain groups!
Claiming to “reform” the U.S. refugee and asylum system without dealing with the ongoing, worsening, disasterous dysfunction at EOIR is a fool’s errand. The way to make the system work more efficiently is to grant the large number of deserving asylum cases in a timely, practical, manner driven by due process, best practices, and best interpretations of asylum law. Unless and until those in charge act on this truth, the awful mess at EOIR will continue to be an existential threat to democracy!
Not to mention that even the Trump administration (the Trump administration!) found that refugees and asylees are a net positive for public budgets over the long run. That is, despite typically arriving penniless, these immigrants ultimately pay more in taxes than they receive in government benefits.
Contra DeSantis’s insinuations about immigrant moochers, these are people who want to work and become economically self-sufficient. That’s presumably why DeSantis’s own henchmen promised fictitious jobs to lure the asylum seekers onto flights.
. . . .
If Republican officials actually wanted to reduce the number of people coming to the border without advance permission, there are plenty of things these politicians could do. They could push for expansion of guest-worker visas, for instance. Or more funding for the refugee admissions program. Or really any other legal, orderly pathway to come to the United States.
After all, the main reason there is such a crush at the border — and why the asylum system in general is so overwhelmed — is that right now this is one of the very few legal ways to get to America.
Yes, I said legal: The families being hoodwinked and shipped around the country like chattel on chartered buses and flights are here lawfully, based on what’s been publicly reported. They turned themselves in upon crossing the border precisely so that they can apply for asylum, as is their legal right. The federal government has screened them, and granted them humanitarian parole while they pursue their asylum cases in court.
It’s not an ideal system. Or an especially fast one. It would be much better to fix the rest of our broken legal immigration system so that those other, more orderly pathways are available. Especially the pathways that offer quicker access to work permits, given America’s current massive labor shortages.
It’s true that Democrats have also put forth relatively little effort to fix these problems. In some cases Democrats seem fearful of appearing too pro-immigrant, having apparently bought into the GOP lore that deep down Americans are xenophobes. But even what little Democrats have tried to do they generally can’t do without 60 Senate votes. Which Democrats don’t have.
Democrats need Republicans to cooperate on immigration reform, and Republicans won’t. Even when those reforms are coupled with investments in border security that Republicans claim to want. The GOP would rather keep around a dragon they can perpetually promise to slay one day — and better yet, to taunt and torture for a while, in public, first.
*************************
Read Catherine’s complete article at the link. Interesting that Catherine understands so much so well, while those in the Biden Administration charged with immigration and human rights policy are so clueless, timid, and inept!
In the meantime, the Dems have done little to make the current laws relating to refugees and asylum work. The much-hyped “asylum rule changes” at DHS have had little, if any, discernible positive impact. EOIR is a national disgrace — continuing the “death spiral” that accelerated during the Trump kakistocracy. The refugee system remains in shambles. The proposed 15,000 allocation of refugee admissions for FY 2023 to Latin American and the Caribbean is an insult and a “signal” to other receiving nations in the area that we are not serious about addressing the problem. There is no rational resettlement program for asylum seekers crossing the border, thus providing an unnecessary opening for the “performative cruelty” of clowns like DeSantis and Abbott.
None of these things are “rocket science” or “budget busters.” They just require knowledgeable leadership, values, and the courage to act on them. Apparently, faced with the cruelty and desecration of values by the “MAGA GOP,” the Dems think that “all they have to do is show up, smile, and mumble platitudes” to seem like the only choice for Americans who believe in democracy. Maybe — but I wouldn’t count on it!
I think that Catherine “hit the nail on the head” with this assessment of the spineless policy officials driving refugee and asylum policies in the Biden Administration: “In some cases Democrats seem fearful of appearing too pro-immigrant, having apparently bought into the GOP lore that deep down Americans are xenophobes.” Cowardice on immigrants, immigrants’ rights, and racial justice has become an endemic problem in the Democratic Party.
It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.
On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law.
“Advancing hearings with no notice and no time to prepare? Why didn’t I think of that?!”
For me at least, the problem started small. A few cases were rescheduled and advanced without anyone at the Immigration Court bothering to inquire about my availability: Your case that was scheduled for two years in the future has been advanced and is now set for two months in the future. I was angry and upset, but I did not want to let my clients down. So I set other work obligations aside. I set family time aside. I put off doctors appointments. And I completed the cases, which were approved. I hoped that these cases were anomalies and that EOIR would stop this unfair and abusive practice. But that was not to be.
Instead, EOIR has dramatically expanded its effort to reschedule cases, often without providing sufficient notice–or any notice–to get the work done for our clients. As best as we can tell, the problem is occurring in California, Colorado, Maryland, and Virginia. I myself have had about a dozen cases rescheduled and advanced (so far). These cases had been scheduled for 2023 or 2024, and suddenly, they are now set for the fall of 2022. Other attorneys have had 20, 30 or more cases advanced, including some that were double booked. One lawyer reported having seven cases scheduled for the same week and 47 cases set for one month. Another lawyer purportedly told a judge that if she had one more case scheduled within the next six months, she would commit suicide.
Here, I want to break down what is happening, so noncitizens in Immigration Court can at least have some idea about EOIR’s disruptive practices.
First, when I say that EOIR is not providing notice of the hearings, that is not entirely accurate. They are not sending us a notice or contacting us in advance. Instead, they are posting the new hearing dates on our portal. What does this mean? Each attorney has access to a portal page with a calendar. We can scroll through the calendar one month at a time. Days with hearings are highlighted, and we can click on those days to see what is scheduled. When I review my calendar, I often find new hearings that were not previously on the schedule. The only way to know whether a new hearing has been scheduled is to scroll through our portals month-by-month and compare what’s there with our existing calendar–a burdensome process that leaves plenty of room to overlook a date. Needless to say, every time I sign on to the portal, I feel a nauseous sense of dread about what I might find.
Once we discover the new date, we need to review the file, contact the client, and determine whether we can complete the case. This all takes time. If we cannot complete the case, or we do not have an attorney available on the scheduled date, we need to ask for a continuance. Of course, clients who have been waiting years for a decision usually want to keep the earlier hearing date. They do not understand why we cannot complete the work or why we are not available that day. Their perspective is perfectly reasonable, but they only have one case, where lawyers have many and we are daily being ambushed by EOIR with additional work. All this can result in conflicts between clients (who want their cases heard) and lawyers (who need time to get the work done). It also makes it difficult to serve our other clients, who must be pushed aside to accommodate the new work randomly being dumped on us.
Even if the client agrees to request a continuance, that does not solve the problem. Motions to continue can be denied. Even when they are granted, the judges tend to reset the date for only a few weeks in the future, which is often not enough time to properly complete the work. Other times, judges simply do not rule on the motion, so we are left to prepare the case, not knowing whether it will go forward or not.
Also, while we sometimes discover a new date that is a few months in the future (and so in theory, we might have time to do the work), other times, the new date is only a few weeks in the future. Since the evidence, witness list, and legal brief are due at least 15 days before the hearing, and since even a “simple” asylum case takes 20 or 30 hours to prepare, this is not nearly enough time. Worse, some cases are randomly advanced and placed on the docket after the evidence is due, and so by the time we have “notice” of the case, our evidence is already late.
Adding insult to injury, another common problem is that cases are still being cancelled at the last minute. And so we drop everything to prepare a case, only to have it postponed once all the work is done. Since this is all utterly unpredictable, it is impossible to prioritize our work or advise our clients.
Again, if this were only a few cases, attorneys could set aside other work and get the job done. But lawyers who do immigration law tend to have many cases, and we are seeing dozens and dozens of cases advanced with no notice. This is such a blatant and obvious abuse of due process that it is impossible to believe it is accidental. I might have expected this policy from the Trump Administration, which was hell-bent on restricting immigration by any means necessary. But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.
The solution to these problems is so basic that it should not need to be said, but here it is anyway: EOIR should stop advancing and rescheduling cases without notice and without consideration for whether we have time to complete the work. Unless something changes, we can expect many noncitizens to be unfairly denied protection, immigration attorneys will leave the profession (or worse), and EOIR will become illegitimate. Let us hope that sanity and decency will soon return to the Immigration Courts.
*****************
Ever wonder why Dems struggle to govern and often lose elections they should win?This is a pretty good example of how the Biden Administration, through cowardice, ignorance, arrogance, and failure to prioritize racial justice and immigrant justice are “shooting themselves in the foot, over and over!”
They are going into midterms where every vote counts. They need “all hands on board” in the human rights community to help bail them out of the gross failures of the White House, Garland, and Mayorkas to reestablish a fair, efficient, and properly robust system for legally admitting refugees and processing asylum claims at the borders and the interior. This, in turn, has empowered disingenuous nativists like DeSantis and Abbott to “play games with human lives.”
But, the Biden Administration “strategy” is to do everything possible to offend and drive a wedge between them and some of their most loyal and important groups of supporters — the immigration, human rights, and racial justice communities. (Make no mistake: The ongoing disaster at Garland’s EOIR disproportionally targets individuals of color.)
Garland seems to be impervious to his self-inflicted disaster at EOIR.I think that advocates are going to have to sue to bring his “Stephen Miller Lite” travesty of justice at EOIR to a grinding halt. Those are resources that could and should be used to help asylum seekers “orbited” around the country by DeSantis and Abbott.
I, for one, have been saying for a long time that Garland’s unfathomably horrible performance at EOIR is a threat to our entire justice system and to the future of our nation. Sadly, every day, Garland proves me right!
The real shame: It was all so preventable with just a modicum of competence and backbone from our failing AG!
🇺🇸 Due Process Forever! Merrick Garland’s deadly Clown Courts 🤡, Never!
