"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.
⚠️☹️ GARLAND REPORTEDLY WILL DISAPPOINT PROGRESSIVES AGAIN WITH SELECTION FOR EOIR DIRECTOR
By Paul Wickham Schmidt
Courtside Exclusive
September 17, 2021
According to sources inside and outside EOIR, Attorney General Merrick Garland will appoint former BIA Chair and retired EOIR Senior Executive David Neal to the key position of EOIR Director, in charge of the nation’s dysfunctional and hopelessly backlogged Immigration Courts. He certainly will be an improvement over the last permanent Director, Judge James McHenry, who was hand-selected by former Attorney General Jeff “Gonzo Apocalypto” Sessions.
But, progressives can’t expect the bold reforms and laser focus on due process that experts recommended. That’s simply not David’s “style,” nor is it his history at EOIR.
Progressives had hoped that the selection would come from among the many exceptionally well-qualified potential candidates in the private sector who spearheaded the effort to oppose the Trump regime and keep due process alive at EOIR. Indeed, many had anticipated, apparently in vain, that Garland would tap one of the many well-qualified minority female “practical scholars” from the NDPA to lead the court reform effort. Since its founding in 1983, EOIR has never had a female Director, and has only had one minority Director, the late Juan Osuna during the Obama Administration.
Neal will become the sixth White Male to serve as Director. He also would continue the “DOJ tradition” of appointing “insider bureaucrats” to the job rather than dynamic experts from the private sector. The latter might actually take bold actions to turn EOIR into an independent judiciary that would fulfill the now-abandoned vision of “through teamwork and innovation becoming the world’s best administrative tribunals, guaranteeing fairness and due process for all.”
Alas, Garland appears to have just as little interest in restoring that noble vision as his predecessors over the past two decades. That’s likely to not only further alienate the progressive advocacy community, but also to spell doom and suffering for many migrants and their frustrated, often pro bono, lawyers who must seek justice on a daily basis Garland’s regressive and totally dysfunctional “courts.”
BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice
The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.
This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.
The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.
Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!
For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.
From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!
Norma Pimentel, a sister of the Missionaries of Jesus, is executive director of Catholic Charities of the Rio Grande Valley.
Dear Mr. President:
I write today to appeal to your sense of morality, human dignity and as a fellow Catholic. While the Supreme Court has blocked your efforts to rescind the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” policy, while litigation against it proceeds through the court system, I urge you to act. These legal complications, and our backlogged immigration courts system, cannot become an excuse to strand thousands of people in dire conditions, especially when other options are available.
I know from firsthand experience just how desperate the situation is. MPP was implemented in my community in early 2019. Its effect was to force thousands of people into a makeshift “tent city” along the Mexican side of the Rio Grande river as they awaited rulings on whether they would be granted asylum.
I would visit the camp almost every single day. It was a blessing that hundreds of compassionate Americans crossed the border between Brownsville, Tex., and Matamoros, Mexico, several times a day to bring tents, food, clothing, and to tend to these families’ medical needs and legal issues. While supported by the good nature and assistance that staff and others provided, I often worried about how the women, men and children at the camp could survive in such conditions. How could they stand the scorching heat of our region’s hot sun or the occasional torrential downpours that turned their encampment into a mud pit?
The lack of care for humanity and the sounds of human misery accompanied me daily as I moved through the camp. I know that reports of these conditions have reached your ears, too: I met your wife, Jill Biden, here in 2019 as she donned rubber boots to wade through the mud and see for herself the misery in which asylum seekers, including many women and children, lived for as long as two years.
So, I rejoiced when you declared an end to this immoral policy on your first days in office, and despaired when the Supreme Court required your administration to implement it once again.
I pray for the Supreme Court justices as I do for all leaders. But in my heart, I know that surely, we can do better than return to the conditions and suffering I witnessed in 2019.
. . . . .
I invite you to come and see for yourself, as your wife did in 2019, what is happening on the border. There are many layers to the immigration realities behind the strident political rhetoric that dominates and obscures the issue today. But we must find ways to counter what Pope Francis calls a “globalization of indifference.”
Mr. President, please demonstrate to the world that the words of Jesus — whatsoever you do to the least of my brothers, you do unto me — are the foundation of not only our faith, but of the moral structure of our country.
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Read the rest of Sister Norma’s letter at the above link.
She’s right: “We cannot allow a lack of creativity and fortitude to become an excuse to abandon the principle of compassion.” But, sadly, that’s exactly what the Biden Administration is doing by listening to the wrong advice from those wedded to the failed, illegal, and cruel concept of misusing the law and perverting process as a “deterrent.”
The experts, “practical scholars,” NGOs, intellectual leaders, and courageous progressive judicial talent who can solve this problem, folks like Sister Norma, Karen Musalo, Marielena Hincappie, Kevin Johnson, Michelle Mendez, Jaya Ramji-Nogales, Lenni Benson, Michele Pistone, Geoffrey Hoffman, Jason “The Asylumist” Dzubow, and Judge Ilyce Shugall, are all “on the outside looking in.” Moreover, rather than working with them to fix the asylum system at the border and bring essential progressive reforms to our dysfunctional Immigration Courts, the Administration has actively alienated and disrespected their views in favor of recycling “guaranteed to fail, Miller-Lite” deterrence only policies of the past.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Beyond bad GOP judges, corrupt and evil GOP State AGs, “Miller Lite” bureaucratic retreads, and feckless and timid Biden policy wonks, this is the harsh reality of our continuing, failed, “border deterrence” policies and our abrogation of asylum laws and human morality. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
The solutions are out there! Too bad the Administration has become “part of the problem,” rather than having the guts and creativity to solve the problem while saving lives! No courage, no convictions, no solutions! It’s a formula for disaster☠️ and death!⚰️
As Sister Norma says, using the words of Jesus, in her powerful conclusion: “whatsoever you do to the least of my brothers, you do unto me — are the foundation of not only our faith, but of the moral structure of our country.” Right now, He couldn’t be very pleased with the conduct of the GOP nativists, the Supremes, righty Federal Judges, horrible GOP AGs, and the feckless bureaucrats and timid policy officials of the Biden Administration!
REYNOSA, Mexico — When Joe Biden was running for president, he promised to close a squalid border tent camp in Mexico where thousands of migrants had been left to await the outcome of their immigration cases by the Trump administration.
Last spring, Biden emptied the camp, allowing most of the migrants to claim asylum and enter the U.S. even as his administration continued enforcing a Trump pandemic policy that effectively barred most other asylum seekers.
Soon after the Matamoros camp was bulldozed last March, a new camp formed about 55 miles west across from the border bridge to the more dangerous, Gulf crime cartel stronghold of Reynosa. Now that camp and another in Tijuana are home to thousands of asylum seekers, many with spouses and children in the U.S. They’re expected to grow after federal courts reinstated Trump’s so-called Remain in Mexico program last week, making it even harder for asylum seekers to enter the U.S. legally.
“We all thought this would get better when Biden got the presidency,” said Brendon Tucker, who works at the camp clinic run by the U.S.-based nonprofit Global Response Management, which also ran a clinic at the Matamoros camp.
Instead, he said, Biden’s pandemic ban on asylum claims, “is creating worse conditions in Mexico.”
About 2,000 migrants were living at the camp in Reynosa, Mexico, last week.(Molly Hennessy-Fiske / Los Angeles Times)
A White House spokesman declined to comment about the migrant camps, referring questions to the Department of Homeland Security.
Homeland Security said in a statement that, “This administration will continue to work closely with its interagency, foreign, and international organization partners to comply in good faith with the district court’s order [on Remain in Mexico] while continuing our work to build a safe, orderly, and humane immigration system that upholds our laws and values.”
In Reynosa, where about 2,000 migrants were living last week, conditions are in many ways worse than they were in Matamoros, Tucker said. There’s less potable water, fewer bathrooms, showers and other sanitation that U.S.-based nonprofits spent months installing in Matamoros. Mexican soldiers circle in trucks with guns mounted on top. Migrants face not only cartel extortion and kidnapping, but also COVID-19 outbreaks and pressure to leave from Mexican authorities. Fewer U.S. volunteers, including immigration lawyers, are willing to cross the border to help due to security concerns. Few at the camp understand their rights and U.S. pandemic restrictions, although they say they asked U.S. Customs and Border Protection agents about them before they were expelled.
“They didn’t tell us anything, they just left us here,” said Salvadoran migrant Emerita Alfaro Palacios, 34, who’s been living at the camp with her 17-year-old daughter Pamela since June, hoping to join her brother in Houston.
Migrants call the camp Plaza Las Americas, the name of the park it occupies. The first to arrive last spring holed up inside the central gazebo. Those who followed pitched tents outside, their warren of droopy tarps and clotheslines expanding daily. Gone were the mariachis who used to congregate in the park, in the shade of a dilapidated casino that still draws throngs on weekends. Last week, only the gazebo’s spindly roof was visible, like the center of an enormous, patched circus tent. Taxis and vendors still circled, selling fruit popsicles, tacos, pupusas and other dishes catering to hungry migrants, mostly Central Americans. Many said they came to the border hoping Biden would allow them to claim asylum. Some had seen reports about how he helped those at the camp in Matamoros.
Many Reynosa residents and officials consider the camp an eyesore.
Standing on the roof of a nearby building overlooking the camp last week, maintenance worker Hector Hernandez Garrido, 33, said it was the responsibility of the U.S. to accept the asylum seekers. He said he feared the camp was contaminated by COVID-19 and other diseases.
Two weeks ago, Reynosa authorities removed cook stoves from the camp kitchen, citing safety risks. They pressured U.S. volunteers to stop cordoning off a section of the camp for migrants who had tested positive for COVID-19, and have threatened to cut the camp’s electricity and water supply.
“They want us out,” said Gina Maricela, a Honduran single mother and nurse at the GRM clinic.
It’s not clear where the migrants would go. Last month, Reynosa officials also launched a legal battle to demolish the city’s primary nonprofit migrant shelter, already home to hundreds, arguing it lies in a floodplain. Felicia Rangel-Samponaro, who has been crossing the border daily to help migrants at the Reynosa camp through her nonprofit Sidewalk School, said they rented a 20-room hotel for those who are COVID-positive to quarantine. They may build a new camp, she said, but that would take weeks and cost tens of thousands of dollars.
“It’s exactly like Matamoros, but with less support,” Rangel-Samponaro said. “Cut what you like, that’s not going to stop the encampment.”
As in Matamoros and other border cities in the surrounding Tamaulipas state, it’s not city officials or even migrants who ultimately control the plaza — it’s the cartel. Migrants who enter or leave the city without paying a smuggler risk getting kidnapped and held for ransom. So do those who leave the camp, even for a few hours to shop or look for work.
Honduran migrant Lesly Pineda, a factory worker, said she and her 11-year-old son Joan were kidnapped with eight other migrants in July and released only after she paid a $2,000 ransom. A single mother, Pineda, 33, then took her son to the border and sent him across the Rio Grande with a smuggler. He remained at a federal shelter in Texas last week, she said. She had left her two oldest children, ages 15 and 14, with her mother in Honduras.
. . . .
**********************
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Will U.S. policy makers ever get beyond this jaundiced view of the “proper place” for asylum seekers in modern society? So far, despite Biden’s and Harris’s campaign rhetoric, the “reality on the ground” (or “in the river,” as the case might be) has remained disturbingly unchanged! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Read Molly’s full report at the link.
The Trump kakistocracy considered the legal asylum system to be a “loophole” in their White Nationalist agenda. So, they just overtly violated the law. Thanks to an indulgent “Dred Scott” Supremes’ majority, they largely got away with it!
The Biden Administration considers complying with asylum laws, due process, and the rule of law, essentially a “political option” that they are working on (slowly, and incompetently).
In the meantime, they simply continue the Trump Administration’s illegal policies. Because, hey, it’s not real humans whose rights, lives, and humanity are being stomped upon here. Just “foreign nationals” and mostly “people of color” at that. Let ‘em continue to twist in the wind, while the Administration gets its act together. That’s particularly convenient if it’s happeningsouth of the border where, except for a few courageous folks like Molly and some NGOs and religious workers, the human trauma is largely “out of sight out of mind.”
If all else fails, we can always blame Trump. Like Trump, Biden has largely ceded control of southern border policies and migration from Latin America to cartels, smugglers, and traffickers. When the legal system fails, the underground and the black market take over.
I don’t think that there is any doubt that restoring the legal asylum system and actually, for perhaps the first time,administering it fairly, lawfully, generously, and with competent expert Asylum Officers and Immigration Judges (“new blood” required) would result in a substantial number of border arrivals being granted legal asylum or other forms of protection.
We’d actually be able to screen individuals, know who we have admitted, where they are going, have them in possession of legal work authorization, in a position to pay taxes, and in many cases have them on a path to eventual full integration into our society. And, by all legitimate accounts, after four years of Trump’s legal immigration disaster and a falling birth rate, we certainly can use more legal immigration.
Instead of looking at asylum seekers as a self-defined “problem,” why not look at saving them and integrating their skills and undoubted courage, energy, and perseverance into our society in a constructive manner as an “opportunity?” Because, that’s exactly what it is!
Human migration will continue, as it always has been, to be a major force in the 21st Century. “Smart money” is on the countries that best learn how to adapt and take advantage of its realities and embrace its opportunities as the “winners of the future.”
Given a fair, functional, generous system, many asylum seekers would be motivated to apply in an orderly fashion at ports of entry, or even abroad (if we actually had a robust functioning refugee program for Latin America, which we don’t). With an honest system that treats them fairly, listens carefully, and provides reasoned understandable decisions, even those who don’t qualify would be more likely to accept the result and consider constructive alternatives.
If the U.S. stepped up, fulfilled our legal obligations, and set a good example, other countries in a position to accept refugees and asylum seekers might also be motivated to improve their performance.
But, what we’re doing right now to those we falsely promised to treat fairly won’t be swept under the carpet forever. Historians are likely to highlight the cowardly abrogation of our legal duties to refugees and asylum seekers, by Administrations of both parties, as alow point in the American story.
Immigration Courts are the “living, breathing repudiation” of racial justice in America!🏴☠️
Repeatedly, Federal Courts at all levels say that foreign nationals are entitled to due process under the Fifth Amendment.
Then, they often go on to convert that to an insulting platitude by approving legal travesties and substandard performance by EOIR inflicted on migrants of color, their attorneys (if any), and their communities. Maybe, it’lls because talented Hispanic judges with actual experience representing asylum seekers and other migrants in Immigration Court are so few and far between. Maybe it’s because Garland has failed to actively recruit judges from among immigration and human rights attorneys of color and has continued to employ a flawed “insider-tilted” selection process that was designed and implemented to “slam the door” on experts from the non-governmental advocacy and academic communities.
Whatever the reason, EOIR has become the “living refutation” of the assertion that Hispanics and other communities of color are treated fairly and equally under our laws and that that race-based decision-making and jurisprudence have vanished from our legal system.
Maybe it’s time for Hispanics and their allies to stop being “tolerant of inequity and bias” and start taking a more aggressive and less compromising position on Garland’s disgraceful, disorderly, dysfunctional, non-diverse, tone-deaf Immigration Courts! Your voices are NOT being heard by those running the Star Chambers and cranking out “assembly line injustice.”
Why does the Hispanic community put up with being demeaned, dehumanized, and degraded by Garland’s “Clown Courts”🤡 and also by a Democratic Party that promised change but has delivered “same old same old” at EOIR?
Recent Supreme Court mockeries of justice show that the rights of minorities are under assault by a radically right-wing Article III Judiciary stocked with GOP appointees. The Immigration Courts, by contrast, are under the total control of the Administration and present an unparalleled opportunity for minority communities to both showcase their judicial skills and to start winning back their legal rights after four years of unrelenting assault by the White Nationalist right.
Why is this perhaps once-in-a lifetime opportunity for long overdue, radical reform of a broken, biased, and incompetent system being squandered and buried by Garland as if Stephen Miller and his cronies were still calling the shots? How many Hispanic and other lives will be sacrificed to EOIR over the next three plus years? How many attorneys of color will continue to be abused, misused, and under-appreciated by an Administration pledged to “do better?” What will be left of racial justice in America if entrusted to a DOJ that doesn’t even believe in the concept in their own court system?
Here’s the ugly truth about what two Administrations and some really bad Federal Judges have done to our vulnerable fellow humans seeking legal refuge at our borders:
I refer to this as the “harsh reality that the nativist Ted Cruz ‘let ‘em enjoy the beaches in Cancun’ crowd doesn’t get!”
And, here’s the truth about migrants helping our nation thrive and who are a key component of our hopes for the future. Progressives and their allies must double down and act upon these truths to combat the type of ridiculous, dangerous, anti- American nativist lies and myths that were driving some of the misinformed callers, also pushed by the “insurrectionist wing” of the GOP:
Significantly, this article came from the George W. Bush Institute, hardly a “left wing think tank.”
“Geoffrey’s 40 minutes” shows that there is, indeed, an imminent threat to American democracy, leadership, and future prosperity out there. But, it definitely does not come from migrants! A nation where about 98% of the population came from immigrant lineage can’t afford to turn our backs on today’s immigrants.
A robed GOP Justice, carrying a copy of Dred Scott and the tool of right-wing extremism, heads for secret meeting to take action against brown-skinned refugees! Image: Hernan Fednan, Creative Commons LicenseDahlia Lithwick Supreme Court Reporter Slate Wikimedia Commons — Public DomainMark Joseph Stern Reporter, Slate
On Tuesday night, the Supreme Court issued one of the most radical orders in recent memory—and it did it in three sentences, unsigned. By a 6–3 vote, the conservative justices attacked the president’s authority to conduct foreign policy (a principle it had vehemently preserved throughout the Trump presidency) by compelling the Biden administration to revive Donald Trump’s “Remain in Mexico” policy, which required all asylum-seekers who arrive at the Southern border—including many fleeing violence in Central America—to wait for their U.S. immigration hearings in Mexico. This 2019 policy, the product of extensive negotiations between the Trump administration and the Mexican government, has been suspended for about 17 months. On Aug. 13, however, a single federal judge issued a nationwide injunction ordering the government to reinstate the long-dormant program immediately. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of the executive’s immigration policies without bothering to explain how or why.
The implications of Tuesday’s decision are profoundly disturbing. . . .
Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.
. . . .
As we have suggested in the recent past, the problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court isn’t just that the parties must scramble, without guidance, to discern what it is the court wants them to do. In this case, perhaps tens of thousands of desperate asylum-seekers and their families have absolutely no clue as to what the law is now and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.
Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.
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Under Roberts, the Supremes are looking more and more like the deadly EOIR Star Chambers/Clown Courts!☠️⚰️🤡 Shamefully, the “Roberts Six” have “revived” the “essence” of perhaps the worst Supremes’ decision in U.S. history, Dred Scott, and gotten away with applying it to people of color in the 21st Century!
They have elevated utter BS and fabricated “injuries” manufactured in bad faith by vile right wing GOP State AGs over the human rights, lives, and human dignity of refugees seeking asylum! In particular, they have targeted bown-skinned women, children, and families legally seeking refuge! This is progress? Seems like the definition of “judicial cowardice” to me!
Meanwhile Garland inexcusably has failed to reform his Immigration Courts by replacing unqualified Immigration Judges and BIA Appellate Judges selected by his predecessors under highly questionable procedures with well-qualified progressive judges who are experts in due process and human rights.
Building a progressive Immigration Judiciary at EOIR is absolutely necessary to developing the legal skills to hold the anti-American far right at bay and eventually creating a better Article III Judiciary that will actually stand up for due process and equal justice for all persons in America. Something the “Roberts 6” have scandalously and spinelessly failed to do!🤮👎🏽
Kevin Robillard and Rowaida Abdelaziz report for HuffPost:
. . . .
There are currently more than 17,000 Afghan nationals — as well as an estimated 53,000 of their family members — awaiting visa approval through the Special Immigrant Visas (SIV) program. The U.S. brought over approximately 2,300 Afghans as part of the program from January to July, and another 2,000 over the last week.
The White House says it has cut the time necessary to approve SIV visas in half, and has issued more than 5,500 between April and July. But advocates say it needs to move faster.
“They seem to be afraid. They seem to be operating out of fear that being a bit bolder on issues with refugees, asylees and migrants will somehow cost them politically,” said former Housing Secretary Julian Castro, who made improving the country’s refugee system a central part of his 2020 presidential campaign. “This is an area where there’s growing disappointment and impatience ― and the stirrings of real anger ― towards the administration.”
. . . .
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Read the full article at the link.
Julian Castro should have been given a major role by the Biden Administration on cleaning house and straightening out the human rights disaster and dysfunction left behind by Trump and Miller. But, at this point, would he really want the job?
Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”
Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of
4 PLANCARTE SAUCEDA V. GARLAND
torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.
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Welcome to the “any reason to deny culture” at Garland’s EOIR!
In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!
Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge?Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning!
This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!
Immigration Court— Failure
BIA — Failure
OIL — Failure
Garland — Failure
And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees!
Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!
Vallerye Allyn Anderson ESQ Sacramento, CA PHOTO: LexisNexis
🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮
A federal judge delivered another setback to the Biden administration’s immigration agenda on Thursday, blocking a set of rules that limited who deportation agents should detain and deport from the country.
U.S. District Court Judge Drew Tipton prohibited federal officials from enforcing two directives that instructed Immigration and Customs Enforcement (ICE) agents to focus on arresting recent border-crossers, as well as immigrants deemed to threaten public safety or national security.
Under the new so-called “enforcement priorities,” ICE agents were required to obtain supervisory approval before arresting immigrants living in the U.S. without legal permission who did not fall within the three specified categories.
The memos issued in January and February are part of a broader Biden administration initiative to reshape ICE operations in the interior.
. . . .
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Read the full article at the link. The case, quite aptly, is called Texas v. US!
One would like to think that this would be a “no-brainer” stay and reverse from the 5th or the Supremes. But, given the stocking of the Federal Courts by Trump & McConnell with right-wing extremist judges who have little concern with most individual Constitutional rights and who pride themselves on indifference to racism and unequal justice, I wouldn’t count on it.
However, if this outrageously wrong order stands, I would be interested to see how Tipton and his White Nationalist cabal that includes GOP reactionary AGs in Texas and Louisiana plan to micromanage DHS. Also, I figure that as the grotesque DHS abuses predictably mount, the NDPA will win some major cases from better Federal Judges in other jurisdictions that will force a showdown with Tipton and his motley crew of righty extremists.
Too bad we no longer have a functioning Congress willing to revise the immigration laws in a way that actually incorporates reality and advances our national interests.
Better Federal Judges for a better, fairer America!
Michelle Rindels & Riley Snyder report for The Nevada Independent:
A federal judge in Nevada has ruled that a nearly 70-year-old section of law that makes it a felony to reenter the U.S. after being deported is unconstitutional, saying it was enacted with discriminatory intent against Latinos and therefore violates the Equal Protection Clause.
Judge Miranda Du issued an order on Wednesday dismissing a case against Gustavo [Carrillo]-Lopez, who was indicted last summer for being in the U.S. in spite of being deported in 1999 and 2012. It appears to be the first time a court has made such a decision, even though the statute known as Section 1326 has been under consideration by several district courts.
“Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus … the Court will grant the Motion,” Du wrote.
The case is a blow for the Department of Justice (DOJ), which initially filed the charge during the Trump administration — an era of hardline immigration policies — but has since switched hands to the Biden administration. Left-leaning groups have asserted that the Trump administration had “weaponized” Section 1326 and other decades-old immigration laws as part of their “zero tolerance” immigration strategy.
Julian Castro, a former Democratic presidential candidate and secretary of the Housing and Urban Development Administration, tweeted that “this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court.”
. . . .
The order notes that the law has a disparate impact on Latinos, noting that 87 percent of people apprehended at the border in 2010 were of Mexican descent. While the federal government argued those statistics are a function of geography and Mexico’s proximity to the U.S. rather than discrimination, Du said the argument was unpersuasive.
“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.
. . . .
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Read the complete article at the link,
Great decision! Notable for you “liberal artists” that historical analysis of racism and eugenics in America presented by Kelly Lytle Hernández, a history professor at UCLA, helped make the record and carry the day!
Just the kind of interdisciplinary interaction that permeates judging, particularly in immigration and human rights, and argues for more liberal arts grads with backgrounds in history, the humanities, linguistics, demographics, and social sciences on the Immigration Bench and the Article IIIs.
I’ve long criticized the “ahistorical” sometimes “anti-historical” approach taken by the BIA and other Federal Courts! For example, promoting the fiction that treaties, laws, ombudpersons, and even elections magically change centuries’ old animuses and make everything “hunky dory” for long-persecuted social, political, ethnic, religious, or racial groups.
Now, if we can only get the Article IIIs to do their job and hold the entire EOIR system, as currently operating, which has fatal racial bias, fairness, impartiality, expertise, and operational problems that make it a “walking violation of due process,” unconstititional, we could be on the way to the change America needs to bring an end to the present national disgrace in our Immigration Courts which is diminishing justice for everyone in America.
Additionally, despite life tenure, most Federal Courts have been reluctant to enforce the Constitution against the many Executive and Legislative abuses in the area of immigration and human rights. So, I would be disappointed, but not surprised, if this ruling is reversed on appeal.
Nevertheless, it’s an important step in exposing racism, connecting it with immigration, establishing truth, and fighting the Executive’s unconscionably bad and often illegal performance on immigration and race! While Garland might incorrectly think that immigration and human rights are “back burner” issues, by the time the NDPA is done with him they might well be issues that consume most of his time and irreparably damage his reputation. That’s why a wise Attorney General would be “leading the bandwagon for Article I” while immediately bringing in the progressive experts necessary to re-establish due process and efficiency at EOIR.
At any rate, this is exactly the kind of “creative disruption” that needs to happen until the system wakes up and makes the necessary progressive, due process, equal justice reforms long overdue at EOIR and other parts of the immigration bureaucracy.
“The IJ’s failure to put Flores-Rodriguez on notice of this central issue in his case denied him “a full and fair hearing” by preventing him from submitting significant testimony and other evidence. Colmenar, 210 F.3d at 971. Because the IJ’s conduct potentially affected the outcome of the proceedings, Flores-Rodriguez has also suffered prejudice. Id. For these reasons, a due process violation warranting reversal has occurred. We express no opinion whether, if Flores-Rodriguez had received notice and defended against the claim that he had made false claims of citizenship, he would have likely prevailed or to the contrary been held inadmissible. But what is of signal importance in our system of justice is that when a person is charged with a crime or charged with allegations warranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition. Because that opportunity was not given here, we grant the petition and remand to the BIA with instructions that it hold whatever future proceedings are necessary to ensure due process is given to Flores-Rodriguez before decision is made. PETITION FOR REVIEW GRANTED.”
****************** Many, many congrats Karen! You are quickly establishing yourself as a “fearless warrior queen” of the NDPA. 🛡⚔️ Looking forward to a time when you and others like you will take your places on the Immigration Court and other Federal Benches. That will bring some much needed, and obviously now missing, expertise, courage, humanity, practicality, and diversity to our Federal Judicial system that is stale, out of step, non-representative of our diverse nation, and floundering from top to bottom, even as the future of our democracy remains in peril.
Here’s an inspiring video about Karen and how and why she became an immigration attorney:
Thanks for being such a great role model, Karen, for the “new generation” of the NDPA! And believe me, those of us in the “Over the Hill Brigade” of the NDPA are out there recruiting all the time!
Wow! Providing due process before making a final decision! What a radical concept! Clearly at odds with the Sessions/Barr emphasis on prejudging cases in favor of ICE enforcement and against individuals and their “dirty lawyers” out to “game” the system. That’s what the “rote form denial orders” that Sessions and Barr encouraged to generate more removals are all about! No need to know much about the law or the facts of the case. Just fill in the blanks and check “denied” and “removed!”
It’s telling, however, that even with a massive increase in judges, these “corner cutting restrictionist gimmicks” astronomically increased an already out of control backlog of cases, even while denying fair hearings to thousands! Seven months into the Biden Administration (which has the remarkable benefit of numerous “expert action plans” for reducing backlog without denying due process), that backlog continues to grow with no apparent plan for controlling it.
🔌 How many “Team Garland” Senior Officials does it take to pull this at EOIR?
Will Garland ever “pull the plug” on this parody of a “court” that keeps “blowing the basics” with human lives and futures at stake? Not very surprising when expertise is “optional” and due process takes a back seat to “cranking out removal orders” and meeting clearly unethical, due-process-denying “quotas.” Also, it’s one where a bureaucratic judicial selection process designed by the last Administration to “dumb down” and “bias out” the Immigration Courts in favor of DHS Enforcement is still in use!
One can imagine a court system where repeated significant due process violations, questionable ethics, continuing substandard legal performance, disturbing lack of subject matter expertise, grotesque inconsistencies, and statistically inexplicable patterns of anti-individual decision-making would raise some “red flags” among peers and those charged with maintaining professional standards. These days, however, it appears that only failure to meet “production quotas” or actually taking extra time to get decisions right can get an EOIR judge in hot water.
Gotta wonder what Judge Garland would have thought if one of his Article III colleagues produced “garbage work” like this on, say, a routine Federal Tort Claims case? He probably would have been pretty upset and acted accordingly.
But, where it’s only people’s lives and futures at stake — “the loss of everything that makes life worth living” as famously stated by the Supremes of yore — anything seems “good enough for government work” in Garland’s malfunctioning, yet deadly and inefficient, “clown courts.” 🤡 (NOTE: With a sense of false optimism, I had hoped to put the poor “EOIR Clown Emoji” — forced to work extreme overtime during the Trump Kakistocracy — out to rest. But, alas, Garland’s failure to take the lives and rights of migrants, not to mention the health, welfare, and sanity of my litigating colleagues, seriously, and his inability to connect the dots between officially-sanctioned injustice @ EOIR and injustice throughout our society, has forced him back into duty!)
I must admit that I don’t “get it” as to why Garland thinks this is acceptable performance by a public agency and fails to take the obvious steps to end to this ongoing disgrace that ruins human lives, frustrates hard-working private lawyers trying to do their jobs (actually the only folks, in addition to some in the NAIJ, keeping this sinking boat afloat right now), and undermines our entire justice system! It also diminishes his own reputation, stature, and legacy.
Many of us understand that the Biden Administration can never attain racial justice in America as long as racially charged injustice, lack of due process, and bad judging prevails in our Immigration Courts. Tragic that those in charge haven’t achieved that same level of enlightenment, understanding, and urgency! Delay in making long overdue progressive reforms and personnel changes costs lives, squanders resources, and further undermines our democracy!
Hon. David Estudillo Washington State Judge Nominee for USDC WD WA PHOTO: YouTube
President Biden’s judicial nominees continue to maintain a truer representation of America. Judge David Estudillo, nominated for the Western District of Washington, would be only the second Latino judge to ever serve on that court. Confirming Judge Estudillo moves us toward a future where all people see themselves reflected on the federal bench. Can you help us urge the Senate to confirm Judge Estudillo?
Judge Estudillo has served as a state court judge on the Grant County Superior Court in Washington for six years. He previously operated his own law firm for 10 years where he represented people seeking asylum, DACA protections, work authorizations, temporary protected status, and citizenship.
His personal and professional experience would bring an important voice to a district that represents more than 1.1 million immigrants and nearly 1 million Latinx people. We must urge the Senate to confirm Judge Estudillo.
On July 15, the Senate Judiciary Committee voted to advance a number of Biden’s judicial nominees who will help restore integrity and fairness to the federal bench after Trump’s devastating conservative overhaul of our courts.
Judge David Estudillo is one of the nominees the committee advanced and one of three nominees currently pending on the Senate floor for the U.S. District Court for the Western District of Washington.
Judge Estudillo’s parents were farmworkers who immigrated to the U.S. from Mexico. If confirmed, he would be the second Latino judge ever to serve on this court. It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.
Even if you don’t live in Washington, we can all agree that confirming civil rights lawyers to our courts benefits every single person in the country. Confirming Judge Davis Estudillo moves us toward a future where all people see themselves reflected on the federal bench.
We don’t have billionaire backers like some right-wing media outlets. Half our revenue comes from readers like you, meaning we literally couldn’t do this work without you. Can you chip in $5 right now to help Daily Kos keep fighting?
If you wish to donate by mail instead, please send a check to Daily Kos, PO Box 70036, Oakland, CA, 94612. Contributions to Daily Kos are not tax deductible.
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As I always say: “Better Judges for a better America!” This a step forward, although we still have a long way to go to repair the extensive damage inflicted on the Federal Judiciary by Trump & McConnell.
Moreover, as I will discuss below, one of America’s most important (and readily “improvable”) judiciaries, one completely controlled by the Biden Administration, the U.S. Immigration Court, has actually taken steps backward in terms of progressive appointments under Garland. It’s like a new coach taking over in the 4th quarter of a game his team is losing 48-7 and saying “OK, let’s spot them another 17 points before we start playing to win!” Incredible, yet, sadly, true!
As the latest census shows an increasingly diverse America, the Article III Federal Judiciary remains an embarrassing backwater of “non-diversity.” This was intentionally aggravated by Trump & McConnell who, as noted above, elevated primarily White ultra right wing men, many with thin or questionable qualifications, to the Federal Bench!
As stated above:
It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.
Evidently, AG Merrick Garland and his team @ DOJ haven’t gotten that message. So far, Garland’s appointments to the Immigration Court, and the composition of his BIA, look more like Stephen Miller’s, Billy Barr’s, and Jeff “Gonzo Apocalypto” Sessions’s “skewed whitewashed vision” of America than they do the real America. That’s particularly true when you consider the American communities whose lives and futures are existentially affected (primarily adversely) by substandard and biased EOIR decisions that continue to be cranked out under Garland. This is despite a few moves by Garland to “kill off” the most horrible of the many bad precedents cranked out by the AG and the BIA during the Trump regime.
Judge Estrada sounds like just the type of individual that Garland should be appointing to theU.S. Immigration Court and the BIA. Compare Judge Estrada’s experience, qualifications, and “real life” background and human engagement with the lackluster profiles of Immigration Judges recently appointed by Garland and with many of those appointed to the Immigration Court and the BIA over the past two decades.
There are plenty of diverse, extraordinarily talented, courageous, practical experts out there in the NDPA to reform and improve the EOIR Judiciary at all levels! Many haven’t applied in the past (or have had their applicants rejected in favor of lesser-qualified candidates) because of the White Nationalist, xenophobic, nativist tone set by Sessions and Barr. Indeed, I spoke over the weekend to one of the leading progressive immigration/human rights experts in America who felt that way. Obviously, I encouraged that “NDPA superstar” to submit the applications — not just for EOIR but also for the Article III Judiciary which also needs to get its act together on human rights, immigration, and racial justice.
Garland & team need to reform and improve the selection criteria, involve outside expert input, and then actively recruit the “best and the brightest” from the NDPA to remake and elevate the Immigration Judiciary! As I have mentioned before, my colleagues in the Round Table and I have done more outreach, cajoling, inspiring, and recruiting among the progressive immigration and human rights community to apply for EOIR jobs than have those at DOJ and elsewhere in the Administration whose job it should be to do just that! It’s ridiculous, and it’s wrong!
No wonder things continue to be an ungodly mess at EOIR despite mountains of blueprints, action plans, and other readily achievable reform recommendations and proposed improvements produced by practical experts in the immigration/human rights/racial justice community! The Immigration Judiciary cries out for diverse, progressive, talented, practical scholar “role models” drawn from the NDPA!
Lucas Guttentag, are you listening somewhere out there? Don’t get co-opted by the DOJ bureaucracy that overall failed to stand up to Trump and his gang of insurrectionists! Don’t let the new leadership at DOJ “de-prioritize or back burner” essential, long overdue, achievable EOIR reforms! Expose “Obamathink revolution by evolution” as the ridiculous and dangerous nonsense that it is (and always was)! Fight for your ideals, speak out, and shake up this disastrously broken and unfair system with the progressive change we need! At this point in your distinguished career, what do you have to lose? Those who consciously chose “not to rock the boat” at EOIR in the past, when human lives, due process, and human dignity were at stake, now share in the responsibility for its sinking!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Some Life-tenured Federal Judges abuse their privileged positions to insure that this is what “due process” will look like for asylum seekers of color! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the decision from U.S. District JudgeMATTHEW J. KACSMARYK in Texas v. Biden:
Judge Kacsmaryk was appointed to the bench by Trump & McConnell in 2019. He is a former Federal prosecutor, deputy general counsel of a right wing religious group, and member of the Federalist Society. His nomination was (obviously unsuccessfully) opposed by more than 200 prominent civil rights, religious tolerance, and human rights groups.
Here’s an excerpt from their letter in opposition addressed to the Senate:
On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Matthew Kacsmaryk to be a U.S. District Judge for the Northern District of Texas.
Nominees to the federal courts must be committed to respecting the law, Constitution, and core American values of justice, fairness, and inclusivity. Mr. Kacsmaryk does not meet this standard. He is an anti-LGBT activist and culture warrior who does not respect the equal dignity of all people. His record reveals a hostility to LGBT equality and to women’s health, and he would not be able to rule fairly and impartially in cases involving those issues.
Interestingly, the letter was signed by none other than Vanita S. Gupta, then President & CEO of the Leadership Conference on Civil and Human Rights and currently the Associate Attorney General of the U.S.
Gupta and her colleagues had Judge K “pegged” as an unqualified righty bigot then! But, with the lineup currently in place at the 5th and the Supremes, it remains to be seen whether there is any effective short-term remedy for his grotesque abuses of power and human rights.
Judicial appointments are important! Maybe it’s time for Gupta and others at DOJ to treat Immigration Judge and BIA appointments as such!
🇺🇸Due Process Forever! Better Federal Judges for a better America!
NEW YORK, July 16 (Reuters) – A U.S. federal judge in Texas on Friday blocked new applications to a program that protects immigrants who were brought to the United States as children from deportation but said the hundreds of thousands of people already enrolled would not be affected until further court rulings.
U.S. District Judge Andrew Hanen sided with a group of states suing to end the Deferred Action for Childhood Arrivals (DACA) program, arguing it was illegally created by former President Barack Obama in 2012.
Hanen found the program violated the Administrative Procedure Act (APA) when it was created but said that since there were so many people currently enrolled in the program – nearly 650,000 – his ruling would be temporarily stayed for their cases until further court rulings in the case.
“To be clear,” the judge said, the order does not require the government to take “any immigration, deportation or criminal action against any DACA recipient.”
. . . .
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Read the rest of Mica’s article at the link.
The obvious solution is legislation. But, the GOP is likely to oppose any reasonable proposal, and the Dems might not have the votes to “go it alone.”
