"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.
Professor Ibrim X. Kendi Andrew W. Mellon Professor in the Humanities Boston University PHOTO: Linkedin
Professor Kendi writes on LinkedIn:
To preserve slavery, enslavers claimed slavery was “positively good” and that abolitionists were making up the terror and exploitation of slavery. To preserve Jim Crow, segregationists claimed public accommodations and institutions were “separate but equal” and that civil rights activists were making up all the racial inequity and injustice. To preserve racism today, the ideological descendants of enslavers and segregationists are claiming that the U.S. is a “colorblind” society and antiracist intellectuals and activists are making up all the racial inequity and injustice. As they strive to preserve racism, we must strive to recognize and combat these repackaged ideas by deepening our understanding of history. Making this #BlackHistoryMonth all the more critical. 👊🏿
Dr. Kendi is the Andrew W. Mellon Professor in the Humanities at Boston University, and the director of the BU Center for Antiracist Research. He is a contributing writer at The Atlantic and a CBS News racial justice contributor.
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Lots of power and truth in five sentences. Let’s celebrate Black History Month by embracing and understanding what right wing politicos don’t want you to know about our nation, how we got to where we are today, and how we can finally achieve the long-unfulfilled promise of “equal justice for all!”
People close to Mr. Biden said he had always supported enforcing the law. Some of his top aides, such as Susan E. Rice, who served as his domestic policy adviser until last summer, and Jake Sullivan, his national security adviser, embodied that tough-minded approach.
“Migrants and asylum seekers absolutely should not believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on Day 1,” Ms. Rice had said early on in Mr. Biden’s presidency.
Contrary to these border myths, which the NYT article does not really adequately take on, “the law” requires that individuals be given a chance to apply for asylum regardless of “status” and “entry point.” Congress provided a “quick screening” process called “credible fear” to deal with “mass migration” situations.
Assuming for the sake of argument that “the law” also requires that individuals be “detained” while credible fear screening and adjudication of claims by those who pass takes place, four elements are necessary for the legal system to work in a fair and timely manner.
Humane, NGO-operated reception centers, with on-site representation available, in locations preferably removed from the immediate border for screening to take place;
A huge corps of true expert Asylum Officers to do credible fear screening and outright grant clearly valid cases wherever possible;
A large corps of true expert Immigration Judges and BIA Appellate Judges to guide Asylum Officers, review their work, and, where the case can’t be granted at first instance, conduct timely full adjudication of claims for those who pass credible fear, prioritizing those claims most likely to succeed;
A functional resettlement program for those granted asylum and those whose cases require more in-depth process.
These four steps are the core of what real law enforcement at the border is all about! Prioritize them, accomplish them, and the other pieces will fall in place.
Contrary to Susan Rice, Jake Sullivan, and what the NYT article suggests, a plan to accomplish this 1) isn’t rocket science; 2) does not require legislation; and 3) needed to be “ready to go” with dynamic, courageous, due-process-focused leadership on Day 1 of the Administration or very shortly thereafter.
As always in Government, it’s a question of priorities, courage, and leadership. Despite the “overabundance” of proven, creative legal and administrative talent then in the private sector, most of whom were available to assist Biden, the Administration was not “ready to roll” with this program on Day 1 (as Steven Miller was with his vile “kill asylum and asylum seekers” agenda).
Sadly, even today, the Administration has not come close to putting in place any of these four critical requirements for success. It was highly predictable to any informed expert that forced migrants would continue to arrive at the border in large numbers and that GOP White Nationalists would “leverage” the Administration’s failure to achieve order at the border.
There is something else that’s completely predicable: That, if passed (a big if), the “nativist-driven compromise” now being “debated” by Congress and the Administration will NOT solve the humanitarian issue of forced migration BUT WILL create more death, trauma, and failure at the border and beyond.
Until America elects humanitarian-focused, problem-solving leaders with the vision to regularize fair asylum processing and the courage and skills to implement it, our border will continue to be a godawful mess: Just as GOP White Nationalists want! And, the great opportunity presented by talented asylum seekers who want only to save their and their families’ lives while helping us succeed will be squandered.
On Friday, President Biden put out a statement that had President Ronald Reagan rolling in his grave and Lady Liberty weeping on the New York harbor. He led not with the values of an Irish Catholic whose ancestors emigrated to Seneca Falls, but rather a tyrant who he defeated in 2020: “[The bipartisan bill] would give me, as President, a new emergency authority to shut the border down when it becomes overwhelmed. And if given that authority, I would use it the day I sign the bill into law.”
Biden’s close cadre of advisors, just like the emperor’s tailors, convinced him he should not drape his posture with the ethos and promise of a nation of immigrants, but rather nakedly and shamelessly attempt to scare people with a “tough act.”
As an unwavering Democrat, I have never felt more ashamed to call President Biden my president. That statement was absolutely heart-breaking and goes against everything we stand as a party and country. I refuse to be a bystander in the crowd watching the naked emperor as his tailors wager this deal and statement a political win.
First, let’s start with the so-called bipartisan deal. Let’s call it for what it is: a concession of Trump-era policies in exchange for foreign aid. Yes, Ukraine is important. And yes, addressing the U.S. southern border is equally as important. But none of these two issues should have ever been tied together. But here we are. And since we’re here, what we know through reports and statements by President Biden and Senator Lankford is that the new expulsion authority and other measures in the bill would not only exacerbate the situation at the border – not actually stop people from fleeing dangerous conditions and coming to the border – but also jeopardize the lives of vulnerable children and families while setting a point-of-no-return precedent that will give Trump the keys to Pandora’s box should he be re-elected.
So who is Biden winning over with the promise of shutting the border down? Independents? Democrats? This logic is based on the theory that being equally as “tough” as Republicans is a winning strategy. Trying to out-Republican the Republican on immigration is the most asinine tactic that does nothing to galvanize the base or win over swing voters. And I get it – many pollsters and Democratic operatives are quick to show that their tough messages resonate with swing or moderate voters. It’s easy to come to that conclusion when you’ve probably gone head to head with weak “progressive” messages and dismiss how it demoralizes the base. Here’s a real life example of what happens when you actually try it on for size: check out the muted reaction Biden received when he reiterated he would shut the border down in a speech to Democrats and others.
We’ve got two major problems that Biden’s close advisors are ignoring: bad policies and bad messaging. But I’m going to focus on messaging solutions as it will take big electoral wins and a public narrative shift to deliver a major immigration overhaul in Congress, which is what we really need to address the issue in the 21st century.
Follow the formula: (1) tap into voters’ nostalgia and shared values reminding them what immigration means to them personally and the country (think Reagan’s last speech); (2) pivot to galvanizing, simple and sensible solutions (path to citizenship, orderly and humane border security, smart technology and resources, lawful pathways for those seeking refuge and to meet America’s economic demands, etc.); and (3) directly contrast against Trump and Republicans (define them on the issue as cruel (family separation), impractical (wasteful border wall) and/or unwilling to deal in bipartisan fashion).
Use Trump and Gov. Abbott as your foils. They are gifts to President Biden, his campaign and Democrats in general. These two maniacs, one of whom is openly defying the U.S. Supreme Court ruling, are standing on the wrong side of history, willing to have blood on their hands and soil the values and image of America. This is Biden’s JFK moment who with dignity and courage challenged Governor Wallace even when public sentiment was divided. Bottom line – when you honor our founding principles of freedom, opportunity and the pursuit of happiness and stand up to tyrants, you always end up on the right side of history.
Saturate: repeat, repeat, and repeat the formula in remarks, online, ads and other forms of paid communications. Trump and the GOP are outspending and out-talking Democrats on this issue and it’s why we’re starting at a deficit on the issue.
The promise and action to deliver boldly and big. Immigration will always be a challenge if Biden doesn’t start laying the groundwork and ensure creative and courageous solutions such as (1) offering a path to legal status, within his authority, to Dreamers and long-settled immigrant families in the U.S. and (2) publicly working with willing governors and mayors across the country who either need the federal government’s help or are eager to welcome new immigrants who will invigorate their towns and cities and fill labor shortages. The Biden administration needs to go on offense, publicly and loudly.
Latinos and other mixed-status families are getting a bit exasperated with waiting for a path to citizenship. Biden needs to remind them that he hasn’t forgotten them. And instead of avoiding what’s happening in Democratic-led cities, Biden should embrace it as an opportunity for more bipartisanship and creative problem-solving that’ll meet the demands of cities and states in need of workers and consumers, such as Erie, PA and Utah. It’s a chance to talk “economy” and solutions – Americans love solutions!
It’s never too late to rectify the course. Biden and his tailors need to begin sewing back the fabric that’ll bring together his coalition of progressives, moderates and all those who do not want Trump and MAGA Republicans to return to office.
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Great analysis, Beatriz! Sad, that nobody in power is paying attention. The “race to the bottom” on human rights and equal justice in America appears to be accelerating!🤮
🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!
Locals and migrants attend a banquet at First Presbyterian Church of Chicago on Nov. 30, 2023. (Photo by Max Li)
(RNS) — Chicago was already facing a homelessness crisis before Texas’ Republican governor, Greg Abbott, began directing thousands of migrants entering his state to Democratic bastions that had declared themselves migrant-friendly sanctuary cities.
Since the transfers began in April 2022, more than 20,000 migrants, many of them destitute Venezuelans, have arrived, and many Chicagoans have expressed concerns that the city’s resources are being drained and have accused government officials of failing to communicate about the migrants’ cost and their fates.
At the same time, advocates for the migrants, especially community organizers in more vulnerable neighborhoods, have pushed back against attempts to pit two marginalized groups against each other. These groups have stepped up to support the new arrivals and in many cases have found allies in local faith leaders.
. . . .
Black said the majority of community residents want to find a way to both support the migrants and build support for a part of Chicago that has been historically underserved and underresourced. At the banquet at First Presbyterian, a speaker from Southside Together Organizing for Power, a community organizing group, talked about what it means to have Black and brown unity.
“It’s basically founded on this idea that there’s no scarcity,” Black said. “Not only is there enough for everybody — for the asylum-seekers, and the historically disenfranchised populations of South Side Chicago.”
He added, “We have so much more to gain from our unity than from the division which is being manufactured and orchestrated by interests that don’t want these communities to get the resources they need.”
Newcomer Fair at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus
I report that today Immigration Clinic student-attorneys Raisa Shah, Jennifer Juang-Korol, and I participated in the Newcomer Fair that the District of Columbia Public Schools sponsored at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus, primarily Venezuelans living in DC shelters. We shared immigration and social services information, GW swag, and met lots of cute kids. We were the only law school that participated. Please see the attached.
Professor Alberto Benítez & GW Immigration Clinic Student-Attorneys Raisa Shah & Jennifer Juang-Korol Staff The Table @ Newcomer Fair!
3) W&M Law Clinic Wins 27 Cases
Professor J. Nicole Medved reports on LinkedIn:
Over the holidays, the Immigration Clinic received approval notices in TWENTY-SEVEN applications that we’ve filed in the last calendar year. 🎉Among those 27 approvals were approvals for #asylum, #lawfulpermanentresidency, #DACA, #TPS, and #workpermits. It has been so exciting to see–and share–the fantastic news with our clients, students, and alumni who worked on these cases!
Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)
4) NDPA Superstar Kim Williams Triumphs Over Garland DOJ’s “Nexus Nonsense” In 1st Cir
“Ricardo Jose Pineda-Maldonado (“Pineda-Maldonado”) is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals (“BIA”) that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”
[Please read the entire 31-page decision. It is a solid beat-down for the IJ and the BIA. Hats way off to Kim Williams and team! Listen to the oral argument here.]
Kim Williams, Esquire Rubin Pomerleau PC PHOTO: LinkedIn
5) HRF’s Robyn Barnard Calls Out Biden’s Threat To Trash Asylum
Robyn Barnard Associate Director of Refugee Advocacy Human Rights First PHOTO: Linkedin
Robyn writes on LinkedIn:
Have been thinking a lot about this statement & questioning how we got here. Anyone who works in this space knows just how complicated our laws & system are, the challenges global crises present, all compounded by recent attempts to totally destroy our immigration system. We know this is hard. However, the President has had at his service very smart ppl, experts, not to mention those in NGO space w decades of experience who have provided him reams of recommendation papers from before he was elected President, all wanting to help him to succeed at making the immigration system more efficient, more fair, but I’d guess most also came out of 4 yrs of Trump wanting to ensure we treat ppl w dignity & respect their basic human rights. If only he would listen.
How did the President go from vowing to “restore asylum” & “stop kids in cages” to essentially trying to out-Trump Trump? I wish we had a President who had the political courage to stand by immigrants, to stand in public & declare why detention, border walls, & summary deportations don’t work, & to invest in humane & smart solutions. The truly enraging thing about this is he will never win in his gross political posturing despite throwing migrants under the bus, or more aptly–literally to the cartels–the Right will never be satisfied & now he has put himself on record as in favor of Trump’s policies.
Shame. Shame on whoever had a hand in this hateful declaration and shame on the leader who put his name to it.
6) CEO Bill Penzy Likes & Appreciates Immigrants
Penzys Logo FROM: Facebook
Penzy, CEO of Penzy’s Spices in Wauwatosa, WI (my home town — graduated from Tosa East in ‘66) writes:
And despite all the Republican anger, it really is okay to say you like what immigrants do and have always done for this country. So much hard work. So much tasty food. What’s not to like? They need somewhere their hard work can amount to something, and we have plenty of space, and more work to do than we can do ourselves..
Immigrants give us the chance to be kind, decent humans. Let’s be kind, decent humans.
Thanks for caring enough to cook and caring about so much more.
Even in a time of “politicos’ bipartisan national fear-mongering, irresponsibility, and trashing of human rights,” courageous NDPA “freedom fighters” still stand up for human dignity and the right to asylum!
Artem Marchuk needed to escape Ukraine or die. He didn’t see any other options.
He and his wife and children had been living in Bakhmut, the site of the war’s deadliest battle. Even when they made it out of the city, nothing in Ukraine felt safe.
“My kids were very hungry,” Artem’s wife, Yana, said in an interview from the family’s home in Baltimore, where the U.S. government resettled them in 2022. “There was darkness everywhere.”
The Marchuks are among more than a million people whom the Biden administration has allowed into the United States over the past three years under an authority called humanitarian parole, which allows people without visas to live and work in the United States temporarily. Parole has been extended to Ukrainians, Afghans and thousands of people south of the U.S.-Mexico border fleeing poverty and war.
Now the program is at the heart of a battle in Congress over legislation that would unlock billions of dollars in military aid for some of President Biden’s top foreign policy priorities, such as Ukraine and Israel.
Republicans want to see a severe crackdown on immigration in exchange for their votes to approve the military aid — and restricting the number of people granted parole is one of their demands.
For Mr. Marchuk, the fact that a program that saved his family has become a bargaining chip on Capitol Hill feels wrong. Although the latest version of the deal would mostly spare Ukrainians seeking parole, he feels a deep sense of solidarity with other people — regardless of their nationality — who may be left behind if Congress imposes limits on the program.
Americans, he said, should welcome people like his family. Mr. Marchuk, a former technology in Ukraine, said he has found work helping other refugees with the advocacy organization Global Refuge, as well as driving for DoorDash, UPS and Amazon since he arrived in Baltimore.
“Refugees deliver these packages,” said Mr. Marchuk, 36. “American citizens who have an education,” he said, very often don’t want to work as drivers.
. . . .
The particulars of the deal in Congress are still being negotiated. A deal that is being discussed in the Senate seeks to reduce parole numbers by tightening immigration enforcement at the southern border.
That would not have a direct impact on the route that many Ukrainians took to America, since they generally do not arrive by the southern border. (Some Ukrainians do make it to the United States that way, however.)
But there is still deep uncertainty about whether the program will survive without changes.
Even some congressional Democrats who oppose substantially changing the parole program have acknowledged they may need to give in to some Republican demands to limit the program if they have any chance of passing the military aid package.
. . . .
As lawmakers debate the merits of the parole program, some immigrants in the United States say all the political talk glosses over the calamities in their home countries.
“People are dying left and right, being kidnapped and it’s just impossible,” said Valerie Laveus, who came to America from Haiti nearly 20 years ago and became a naturalized U.S. citizen in 2008. “I am concerned because I feel like a lot of times these people are having these conversations and they’re forgetting the human factor. They’re forgetting that they’re talking about lives.”
. . . .
Mr. Biden’s allies say restricting use of parole would very likely backfire.
“It means that people in desperate circumstances, who need protection, who need to leave, who need to flee, their options will be more limited, which increases the likelihood they choose the dangerous option of coming to the border,” said Cecilia Muñoz, one of Mr. Biden’s top immigration officials during the transition and co-chair of Welcome.US, an organization that helps Americans sponsor the resettlement of refugees to the United States.
Karoun Demirjian contributed reporting.
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Notably, according to this article, Congress appears ready to carve out a “White Guy Exception” for Ukrainians arriving from Europe. So much for the idea that current immigration policy by both parties isn’t “race driven” — with Hispanics and Blacks generally on the short end of the stick.
By contrast, high level politicos of the Biden Administration and Congressional Dems avoid the border like the plague, except for the few who represent border districts. They are not that much different from GOP nativists. They refuse to engage with border experts, those who have devoted their lives to assisting forced migrants at the border, and the migrants themselves, who certainly will face severe harm, even death, due to the cowardly “sellout” by Congressional Dems and the Administration.
Let’s be very clear about the documented consequences of eliminating asylum at the border:
NEW YORK – With Congress considering codifying additional policies that will trap asylum seekers in Mexico, Human Rights First today reports that it has tracked over 1,300 reports of torture, kidnapping, rape, extortion, and other violent attacks on asylum seekers and migrants stranded in Mexico since the administration’s asylum ban was enacted in May.
Basically, those pushing to appease the GOP White Nationalist restrictionists at the border are knowingly and intentionally advocating for deadly human rights violations! How is that acceptable?
Foreign-born workers consistently have a higher labor market participation rate than native-born workers. https://usafacts.org/articles/how-many-immigrants-are-in-the-american-workforce/. Consequently, there is little reason to doubt that new waves of migration ultimately will benefit the U.S., particularly the many U.S. cities, large and small, in danger of depopulation and “death.” Ironically, many of the localities with the most to gain from robust migration are in “red” states.https://apple.news/AQkO0JQjKS9aXF-V-RD9-_Q
Instead of planning to avoid these “ghost towns,” using the influx of individuals who seek to help us as an opportunity, we’re “strategizing” and spending huge amounts of money expelling, “deterring,” imprisoning, rejecting, dehumanizing, and even killing those who seek refuge!
There are legitimate issues as to how to “front” services for asylum seekers until they can obtain work authorization and find jobs. THIS, is where bipartisan cooperation, creative solutions, and resources could be focused, rather than exclusively on counterproductive and expensive gimmicks to punish, deter, and deny. But, there’s no chance of that!
Instead, in an example of how far the one-sided debate has departed from reality and human decency, Biden now vows to “shut the border” if Congress will only give him the authority! https://www.washingtonpost.com/politics/2024/01/26/biden-vows-shut-down-an-overwhelmed-border-if-senate-deal-passes/. But, that’s apparently not enough cruelty and xenophobia for MAGAMike and his White Nationalist insurrectionists! They seek eradication of the lives and humanity of anybody with the temerity to seek refuge in the U.S.
And so it goes, ever onward and downward. The media has developed amnesia on the well-documented unmitigated disaster and cascade of human suffering that our nation’s most recent border shutdown generated. As stated by expert Aaron Reichlin-Melnick on “X:”
Will the DC press (not those on the immigration beat) continue to ignore the fact that the last time we “shut down the border” under Title 42, it did not work and in fact led to 15 out of 20 of the highest months for border apprehensions in the 21st century?
We don’t know yet who the “winners” of the 2024 election will be, other than traffickers, cartels, exploiters, private prison corporations, undertakers, and body bag makers! But, we already know the “losers:” asylum seekers, Dreamers, human rights, persons of color, and those brave souls who continue to stand up for truth and equal justice for all!
Dem politicos and the Administration seem to be counting on the view that the Trump GOP is so horrible and antithetic to democracy that Dems can afford to dehumanize migrants, ignore their supporters, and break campaign promises without consequences. Just what they are getting in return isn’t obvious. From an immigrants rights’ and humanitarian standpoint, it’s “zilch.”
With Dems supposedly in charge of the Presidency and the the Senate, why are they ready to gift GOP restrictionists with what many have characterized as a “generational chance” to destroy asylum, hamstring legal immigration avenues, and squander even more money on hyper-cruel, race-driven, “sure to fail” border militarization and human rights violations?
Talk about “selling your soul!” That appears to have become the Democrats’ mantra in 2024. Whether it will prove a successful political strategy, remains to be seen!
On Monday, the Supreme Court lifted an injunction that had prevented the Border Patrol from cutting and removing concertina razor wire that the state of Texas had installed along a migrant crossing at the Rio Grande.
Federal officials view the razor wire as exceedingly dangerous because it could trap bodies in rapid flowing waters, leading to drownings. According to officials, last week three family members—a mother and her two children—died at the river in part because Texas guard and state troopers prevented the Border Patrol from reaching them.
The conservative Fifth Circuit had ordered the injunction put in place pending its final decision, keeping the razor wire intact. But a slim majority of the Supreme Court, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the three liberals, overruled the panel.
At stake is more than whether the Border Patrol can safely do its job and help prevent deaths like those that occurred last week. Our entire federal system is premised upon the principle that the federal government has exclusive authority to enforce border policy. States like Texas should not have the right to run interference or act as if they are the border patrol.
And yet, four extremist justices—Alito, Thomas, Gorsuch and Kavanaugh—would have left the federal government powerless for now to remove a dangerous barrier illegally erected by Texas.
The latest battle over the border should be viewed within the broader question of what is the proper role of the states when it comes to immigration. And this isn’t the only battle that Texas Governor Greg Abbott and extremist Texas Attorney General Ken Paxton have picked to try and claim more of that power for the states.
Today, I’ll discuss how the Supreme Court came to review this case about the cutting and removal of razor wire at the border. Then I’ll zoom out so we can see how this fits into a larger challenge to federal authority over immigration.
Subscribed
Razor wire and the Texas federal courts
When Texas first erected razor wire at the river—the kind designed to catch clothing and tear flesh—it was roundly condemned by human rights organizations, and legal scholars quickly pointed out that Texas was acting extrajudicially. After all, at the border, it is the federal government that oversees enforcement, including what kinds of barriers to erect and how to treat and handle migrants. Many of the border crossings are by asylum seekers, and they are therefore there legally in accordance with international law.
Allowing Texas to insert itself as a state actor would upend all traditional notions of federalism and the limit of states’ rights when it comes to questions of homeland security. But a federal district judge and later the Fifth Circuit didn’t see it that way. On December 19, 2023, a panel in New Orleans temporarily barred Border Patrol agents from cutting or removing the wire in the area around Eagle Pass, with an exception for “medical emergencies.” This was a shocking opinion given its apparent disregard of settled law establishing exclusive federal power over immigration policies and execution.
U.S. Solicitor General Elizabeth Prelogar argued that the injunction barred border agents from doing their jobs, specifically, from having clear access to the U.S.-Mexico border and “reaching migrants who have already entered U.S. territory.” Moreover, the exception for medical emergencies was insufficient because it takes time to cut through the wire, and while the clock is ticking there is a “very real” risk of serious injury or death for those trapped.
Texas claimed that federal border agents were not actually apprehending and processing migrants even after they passed through the gaps in the wire that had been cut by the feds some twenty times. The state had property rights of its own, Texas argued, as well as an interest in stopping “deadly fentanyl,” human trafficking,” and to “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.” (The fentanyl argument is a red herring; the vast percentage of fentanyl entering the country arrives not via migrants crossing the river at the border, which would be a decidedly foolish way to try and transport drugs, but through smuggling by U.S. citizens and legal residents.)
In January, Texas upped the stakes by moving to block federal agents entirely from the area where they normally launch patrol boats and conduct mobile surveillance. This contributed to the three family members’ deaths because fedeal agents had no clear access to the river. In fact, they couldn’t even determine whether a “medical emergency” was occurring, as Prelogar pointed out.
Prelogar won her appeal for the U.S. government and got the injunction lifted by the High Court, but by only a single vote.
The State of Texas keeps trying to enforce national border policy
Governor Abbott has a multi-billion dollar program in place called “Operation Lone Star” that includes massive allocation of personnel to the border, the erecting of illegal and often dangerous barriers, and most recently a new law that authorizes state and local law enforcement to arrest migrants crossing from Mexico.
This has set up yet another showdown with the federal government. That law goes into effect in March, and it is seen as a test case to challenge a 2012 case, Arizona v. United States, that narrowly left the power to determine immigration policy to the federal government, not the states.
Texas and Louisiana already lost a case where they had challenged the Biden administration’s immigration guidelines and its deportation policies. Those guidelines had been halted nationwide by a federal judge in Texas, who ruled they violated federal law. In that case, by a 5-4 decision, the Supreme Court initially and rather alarmingly had allowed the injunction to remain in place. But ultimately it ruled 8-1 in June of 2023 against Texas and Louisiana, with only Justice Alito in dissent, reaffirming the federal government’s central role on matters of immigration policy.
Where things go from here
Governor Abbott and state Attorney General Paxton remain keen to find where the new conservative majority on SCOTUS might rule their way. So they keep pushing and testing the limits. In the razor wire case, while there’s no way to know why four extremist justices dissented from the lifting of the injunction—and it conceivably could have been because the full matter will be taken up shortly anyway by the Fifth Circuit in February—the impression it has left is unmistakable.
As CNN legal analyst and University of Texas law professor Steve Vladeck observed, “Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents.” He added, “That four justices would still have left the lower-court injunction in place will be taken, rightly or wrongly, as a sign that some of those longstanding principles of constitutional federalism might be in a degree of flux.”
In response to the loss before the Supreme Court, a spokesman for Abbott put out a statement claiming that the “absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry.” He added that the governor “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”
But this assertion about unsafe crossings was disputed by federal officials, underscoring the need for a single government policy. Said a White House spokesperson, “Enforcement of immigration law is a federal responsibility. Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law. We can enforce our laws and administer them safely, humanely, and in an orderly way.”
This was for now only a battle over a temporary injunction. The Fifth Circuit will next consider the full case in February, incluing whether to lift the injunction permanently. But it will do so with an understanding that five SCOTUS justices view Texas as unlikely to succeed on the merits. An appeal back up to the Supreme Court is likely, no matter which side prevails at the appellate level.
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Texas’s legal argument was frivolous. The vote at the Supremes should have been 9-0. That it wasn’t should make us all fear for our country’s future as a nation that operates under the rule of law!
Jefferson Davis Racist, traitor, insurrectionist President of Confederate Stares of America Public RealmJohn C.Calhoun White Supremacist, racist, nullifier U.S. Vice President Public Realm
Jeff Davis and John C. Calhoun would be proud of the dissenters — although, ironically, those two “nullifiers” wouldn’t even recognize one of the dissenters, Justice Thomas, as a “person” with any rights at all, let alone the ability to sit on our highest Federal Court! Remarkably, despite claiming to be a student of history, Thomas was unable to connect the dots between Calhoun’s and Davis’s rebellious, racist, dehumanization of African Americans and Greg Abbot’s rebellious, racist, dehumanization of legal asylum seekers of color!
The Federal Government’s authority to stop State Governments seeking to nullify and deny Federal authority matters! That’s particularly true when those acts of nullification are based on racial animus! That today’s righty-dominated Supremes won’t unite behind this straightforward principle of Federalism is a blow to equal protection under the Constitution!
President Biden is asking Congress for $13.6 billion to fund border enforcement operations, a significant portion of which will go to Immigration and Customs Enforcement (ICE) to detain more immigrants. This strategy is reminiscent of President Trump’s administration, which also poured resources into ICE detention in 2018 and 2019, but that effort produced very little change in the number of ICE removals—the stated goal for both Trump and Biden.
. . . .
In fact, President Biden is proposing to increase ICE detention by only 9,000 beds, from the current 37,000 to 46,000. The federal government should detain and deport individuals who pose national security and public safety threats to the United States, but it should not spend taxpayer dollars on useless anti‐ immigrant theater. Moreover, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties has found that ICE detention sites routinely mistreat their detainees in ways that are “barbaric,” and there is no reason to expose anyone unnecessarily to this type of treatment.
A more effective approach to address the border issue is to facilitate legal immigration: let people come legally. This approach has been demonstrated to work, would reduce government expenditures, and make the immigration process more orderly.
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Read David’s full article, with charts and data, at the above link.
As David points out, the“New American Gulag” is bad for our nation and humanity. Unhappily, though, it’s good for the corporations who run private prisons. They also provide jobs in out of the way places where migrants are stashed. And, they contribute money and lobby politicos of both parties. That’s why human rights lose out almost every time in the immigration debate.
Immigration enforcement is an “industry” where failure = success! The more detention, apprehension, and deportation fail, the greater demand there is by politicos for more of it!
You can bet that when the coming waves of “enhanced” repression and human rights violations predictably fail, there will be demands for even harsher and more expensive enforcement, imprisonment, and deportations to deadly places!
It’s a dangerous, degrading, wasteful cycle that America just can’t seem to break. There are too many interests that see the human and fiscal misery of the “Gulag” as a profit center or a political advantage and therefore are disinterested in what works or the common good.
Even some Dems find that joining the white nationalist bullies in degrading and dehumanizing migrants of color is a “better political strategy” than standing up for the human rights of those who can’t vote! Bully – The Noun Project icon from the Noun Project Date 18 December 2017 This file is made available under the Creative Commons CC0 1.0 Universal Public Domain Dedication
As my friend Dan Kowalski often says, “the cruelty is the point.” Dehumanization, degradation, and gratuitous abuse of migrants of color is both highly profitable and politically advantageous for those on the right. So much so, that often even Democrats and some so-called “liberals” are afraid to oppose it and find their best “strategy” is to align with or enable the playground bullies! After all, they figure, it’s “only migrants from s—-hole countries whose lives and humanity are at stake.” Nothing to be gained from defending vulnerable persons!
We all have heard the story about the Rev. Martin Luther King Jr. the night before he was killed. How he’d seen the promised land and might not be with us when we got to the mountaintop. It’s important that we remember King incorporated the good Samaritan story into his speech.
He was in Memphis to aid sanitation workers, who were marching for a livable wage and safe working conditions. He went despite threats to his life and the fact that other civil rights leaders were present to march along with 1,300 Black workers on strike. He went because if not him, who? Here’s where he incorporated a Bible story we’ve heard before.
“And so the first question that the Levite asked was, ‘If I stop to help this man, what will happen to me?’ But then the good Samaritan came by. And he reversed the question: ‘If I do not stop to help this man, what will happen to him?’
“That’s the question before you tonight. Not, ‘If I stop to help the sanitation workers, what will happen to all of the hours that I usually spend in my office every day and every week as a pastor?’ The question is not, ‘If I stop to help this man in need, what will happen to me?’ ‘If I do not stop to help the sanitation workers, what will happen to them?’ That’s the question.”
King ended his speech by emphasizing the work we all need to do together to make this nation great, working toward justice not just for ourselves but for all those along the road we come across who require it.
“Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge to make America what it ought to be. We have an opportunity to make America a better nation. And I want to thank God, once more, for allowing me to be here with you.”
This is what I want to remember and honor this Martin Luther King Jr. Day.
Jill McKibben, Reston
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Compare this message of self-sacrificing kindness toward fellow humans with the GOP “race to the bottom” taking place today during the totally overhyped and over-covered Iowa caucuses! (One more breathless account of the “enthusiasm gap” among Haley voters — not to mention her double-digit deficit in the endless “up to the minute” polls — could make a person want to puke.🤮)
There, dominant front-runner Trump promises not a better, fairer, more humane America for all, but rather a selfish, grievance-filled, program of hate, revenge, retribution, dehumanization, and exclusion on his “enemies!” And, his floundering GOP “rivals” promise the same nasty, deeply anti-American, agenda, but without the “distraction” of Trump’s “personality.” Hardly a winning message! If Iowa GOP voters want a true bottom-dweller, and it appears they overwhelmingly do, why not go with the “original” rather than “semi-sanitized imitations?”
Thank goodness for NFL playoff games today which should allow the rest of us to avoid the networks insipid “Iowa coverage!”
Paulina Vera President, Hispanic Bar Association of DC PHOTO: Linkedin
As I have mentioned before, I’m proud that Paulina is an alum of the Legacy Arlington Immigration Court Internship Program and a “charter member” of the NDPA!
For those of you who don’t know her, here’s Paulina’s “official bio” from the GW Law website:
Paulina Vera supervises GW Law Immigration Clinic students and provides legal representation to asylum-seekers and respondents facing deportation in Immigration Court. She is a Professorial Lecturer In Law and has taught Immigration Law I.
Ms. Vera previously served as the only Immigration Staff Attorney at the Maryland-based non-profit, CASA.
She is a double GW alumna. In 2015, Ms. Vera graduated from the George Washington University Law School. During law school, she was a student-attorney at the Immigration Clinic. In 2012, she graduated from GW with a Bachelor in Arts in International Affairs, concentrating on Latin American Studies and International Politics and a minor in Spanish Language and Literature.
Ms. Vera is involved in a number of professional organizations. She is the President-Elect of the Hispanic Bar Association of DC (HBA-DC), a scholar for the American Bar Association (ABA) YLD Leadership Academy, and a member of the inaugural Hispanic National Bar Association (HNBA) National Task Force on Hispanic Law Professors and Deans. She also serves as the Public Relations Director for the GW Latino Law Alumni Association (LLAA).
Ms. Vera has been recognized locally and nationally; she is the recipient of the GW Latinx Excellence Awards, Alma Award (2019), DC Courts Community Agency CORO Award (2019), Hispanic Bar Association of DC (HBA-DC) Rising Star Award (2019), and the Hispanic National Bar Association (HNBA) Top Lawyers Under 40 Award (2021).
Her passion project is managing an online community called Hermanas In The Law, where she features Latinas thinking about law school, Latina law students, and Latina lawyers. Ms. Vera is originally from Tucson, AZ and is the proud daughter of two immigrants.”
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You can also learn more about Paulina and her many accomplishments by clicking on her name in the “Courtside” sidebar!
Paulina is just the brilliant, honest, values-driven, charismatic leader that America needs for a better future!
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy! PHOTO: Thomas Hawk Creative Commons Amateur Night
Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:
Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:
The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.
For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely
to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.
Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.
While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.
Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals
2 million
cases in the backlog
About 650
immigration judges nationwide
Less than 500
cases completed per judge in most recent years
1
AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.
Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.
Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.
Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at
the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.
EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.
The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.
Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as
The rate at which asylum claims are denied varies widely, from
1% with one judge to
100%
with another in FY 2017-22
2
AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).
Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.
One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.
Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.
This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:
Strengthen the immigration court system’s management and efficiency
► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.
1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).
3
AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.
► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it
► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.
Upgrade how the courts use technology
► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.
Increase access to legal representation
► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.
4
AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.
Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
BOX 1
About the Rethinking U.S. Immigration Policy Project
This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.
The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.
To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.
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Read the full report at the link.
Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).
It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.
Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)
Bring in these experts:
Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)
Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!
This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”
This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!
WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.
The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.
Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”
But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.
Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”
. . . .
Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.
“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.
Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.
But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.
Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.
. . . .
WHAT MIGHT THESE CHANGES DO?
Much of the disagreement over these proposed changes comes down to whether people think deterrence works.
Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.
But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.
“Desperate people do desperate things,” he said.
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Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?
You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.
BIA Asylum Panel In Action — After three years of ignoring experts on how to fix asylum and the border, the Biden Administration appears ready to join GOP nativists in throwing vulnerable legal asylum seekers and their supporters “under the bus.” Cartels and criminal smugglers undoubtedly are looking forward to “filling the gap” left by the demise of the legal asylum system! They will be “the only game in town’” for those seeking life-saving refuge! There is no record of increased cruelty and suspension of the rule of law “solving” migration flows, although an increase in exploitation and death of migrants seems inevitable. Perhaps, that’s just “collateral damage” to U.S. politicos. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
[T]he Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in part, VACATE the Board’s denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.”
[Hats off to Jaime B. Naini and Ashley Robinson! N.B., the motion for stay of removal was denied. I have a call in to the attorneys to find out if she was removed…]
Rather than looking for ways to restrict or eliminate asylum, Congress and the Administration should be concerned about quality-control and expertise reforms in asylum adjudication, including a long-overdue independent Article I Immigration Court! Once again, the BIA violates Circuit precedent to deny asylum.
The answer to systemically unfair, (intentionally) unduly restrictive interpretations, and often illegal treatment of asylum seekers by the USG should not be to further punish asylum seekers! It should be fixing the asylum adjudication system to comply with due process, fundamental fairness, best practices, and professionalism!
Casey Carter Swegman Director of Public Policy at the Tahirih Justice Center PHOTO: Tahirih Justice Center
Here’s a statement from the Tahirih Justice Center about the disgraceful “negotiations” now taking place in Congress:
The Tahirih Justice Center is outraged by the news that the administration appears willing to play politics with human lives. These attacks on immigrants and people seeking asylum represent not simply a broken promise, but a betrayal and we urge the President and Congress to reverse course.
“I am gravely concerned that, if passed, these policies will further trap and endanger immigrant survivors of gender-based violence. Selling out asylum seekers and immigrant communities under the guise of ‘border security’ in order to pass a supplemental funding package is absolutely unacceptable,” said Casey Carter Swegman, Director of Public Policy at the Tahirih Justice Center. “And we know the impact of these cruel, deterrence-based policies will land disproportionately on already marginalized immigrants of color. I urge the White House and Congress not to sell out immigrants and asylum seekers for a funding deal.”
Every day, people fleeing persecution – including survivors of gender-based violence – arrive at our border having escaped unspeakable violence. Raising the fear standard, enacting a travel ban, putting a cap on asylum seekers, and expanding expedited removal nationwide (to name just a few proposals that have been floated in recent days) will do nothing to solve the challenges at the southern border and serve only to create more confusion, narrow pathways to humanitarian relief, increase the risk of revictimization and suffering, and punish immigrants seeking safety and a life of dignity.
These kinds of proposals double down on the climate of fear that many immigrants in this country already face on a day-to-day basis and will disproportionately impact Black, Brown and Indigenous immigrant communities.Immigrants should not be met with hostile and unmanageable policies that violate their humanity as well as their legal rights. We can and must do better.
These are “negotiations” in which those whose legal rights and humanity are being “compromised” (that is, tossed away) have no voice at the table as politicos ponder what will best suit their own interests.
The settlement involves a 2018 lawsuit filed by the American Civil Liberties Union to block the Trump administration’s “zero tolerance” policy, which called for separating parents from their children to prosecute the adults for crossing the border illegally. Officials sent parents to detention centers and children to shelters, without a plan to reunite them, under the policy. Some were apart for months, some for years.
“It does represent, in my view, one of the most shameful chapters in the history of our country,” U.S. District Judge Dana M. Sabraw said before he approved the settlement in a hearing that recalled the shock and disbelief surrounding the policy in 2018.
Under the settlement approved Friday, crossing the border illegally will no longer be a reason to separate a family, at least for the next eight years, which is how long that provision will last, lawyers said. The Justice Department has said the government will not prosecute parents for crossing the border without permission, a misdemeanor, or for the felony crime of reentering after being deported.
The settlement also offers aid to once-separated families so that they may apply to stay in the United States permanently. Those who were deported may apply to come back. Their immigration records will be cleared, giving them a fresh start on applying for humanitarian protection such as asylum.
Once they are in the United States, formerly separated families may apply for three-year work permits, six months of housing assistance and one year of medical care, according to the settlement. The families also are eligible for three years of counseling under the settlement.
Sabraw, a Republican nominee, declared the separations unlawful and ordered the families reunited in June 2018, after President Donald Trump halted the policy amid widespread condemnation.
Trump’s zero-tolerance policy ran from May to June 2018. Later, investigations determined that officials separated migrant families throughout Trump’s four-year term, which ended in January 2021.
Biden administration officials said the Trump administration separated more than 4,000 children from their parents, though past estimates have put that figure as high as 5,500. Lawyers for the ACLU, which represented the migrant families in court, estimated that as many as 1,000 children may still be separated from their parents. Advocates are trying to track them down.
The ACLU has called the case the most significant settlement in the organization’s 103-year history.
“This settlement brings much needed help to these brutalized children but there remains significant work to ensure that every family is now reunited and to monitor that no future administration tries to circumvent the agreement and reenact the same horrific policy,” Lee Gelernt, an ACLU lawyer and the lead counsel in the case, said in a statement.
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Read the rest of Maria’s report at the link!
The human and fiscal costs of this illegal policy, developed and implemented by GOP White Nationalist child abusers, is beyond comprehension! Some of the damage can never be repaired!
Notably, there has never been any accountability for the architects of this clearly unconstitutional abuse and the Government attorneys who failed to do “due diligence” and misrepresented the facts surrounding child separation in Federal Court. The truth was only brought out when the ACLU was forced to do the DOJ’s job for it! It’s also curious how a prohibition on clearly unconstitutional conduct could have only an “eight year shelf life.”
But, there are even worse developments on the horizon — immoral, illegal, and unconscionable policies under consideration that will dwarf even this horrible episode in terms of preventable deaths, disregard for humanity, dereliction of duty, moral cowardice, and degradation of our nation!
Why are Dems ignoring their “core supporters” and negotiating with this notorious human rights abuser! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So why are Dem legislators and the Administration “negotiating” even more outrageous legal violations, moral transgressions, and human rights abuses with the GOP? Talk about “shameful!” If Dems don’t get some backbone and live up to their professed values and the law, “shameful” will have a whole new meaning!
Here’s a link to tell your Congressional representatives to “just say no” to the truly repulsive proposals to bully and inflict pointless harm on the most vulnerable and to arrogantly violate human rights on a massive scale being pushed by theGOP and some so-called Dems.https://lnkd.in/gp2RteRr.
Trading away human rights that are not yours to dispose of for unrelated foreign military aid is beyond unconscionable! 🤮
U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?
Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”
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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)
How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.
Stay tuned…
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Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.
The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!
The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable.
Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.
CLARIFICATION:While a number of members of the Round Table signed this letter in a “personal capacity,” the Round Table, as an organization did not take a position on this issue.
Signs like the one in this undated image were displayed at various restaurants and other pubic accommodations under a system known as “Juan Crow” laws.Russell Lee / Dolph Briscoe Center for American History
🇺🇸 Due Process Forever!
PWS
11-16-23
UPDATE FROM HON. “SIR JEFFREY” CHASE:
Hi all: The Texas state law was passed by both houses of the Texas legislature, and is expected to be signed into law.
The letter from 30 individual members of this group was specifically mentioned yesterday on CNN’s The Lead with Jake Tapper.
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