🏴‍☠️ATROCITY RULES! — SCOFFLAW GOP JUDGES ON 5TH CIR. RUN OVER LAW, CHEVRON, BASIC HUMAN RIGHTS, CONSTITUTION TO INFLICT GRATUITOUS ABUSE ON ALREADY ABUSED REFUGEE WOMEN OF COLOR!⚖️👎🏽 — Her Ex-Partner  in El Salvador “grabbed her by the hair, threw her on the sofa, and hit her.” But, Judge Leslie H. Southwick and his misogynist buddies had more abuse and dehumanization in store for her when she asked for legal protection!

Woman Tortured
“Tough noogies, ladies, suck it up and accept your fate,” say Federal Judges Southwick, Jones, and Oldham of the 5th Cir!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Trial By Ordeal
No “particular social group” here says 5th Circuit Judge Southwick and his buddies Jones and Oldham. Just a little “good old fashioned trial by ordeal.” 
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

 

Toxic Trio of “America’s Worst & Most Cowardly Judges” sticks it to Salvadoran refugee woman who survived domestic violence in country where femicide is rampant and uncontrolled by corrupt and inept government.

Lopez Perez v. Garland, 5th Cir., 06-02-22, published

https://www.ca5.uscourts.gov/opinions/pub/20/20-60131-CV0.pdf

BEFORE:  Edith Jones (Reagan), Andrew Oldham (Trump), and Leslie H. Southwick (Bush II) Circuit Judges

OPINION: Judge Southwick

Lopez-Perez argues here that the IJ erred under Matter of A-R-C-G- by concluding that she had not established a nexus between her persecution and her social group. Further, she argues that the IJ incorrectly decided that the government of El Salvador was willing and able to protect her.2 These issues were identified in her Notice of Appeal and are preserved for our review here.

It is true that the IJ concluded that Lopez-Perez had not demonstrated the requisite nexus and further that she had not shown that the government was unable or unwilling to help her. Although the IJ’s analysis was cursory, we nonetheless conclude that his decision must be upheld because remand would be futile. Jaco, 24 F.4th at 406. The IJ intimated that Lopez-Perez’s proffered social groups — “Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” — were cognizable.

2 Lopez-Perez also argues for the first time that we should remand to the IJ for consideration in light of intervening decisions in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) and Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020). We decline this invitation. In addition to the fact that this argument was not raised in her Notice of Appeal, Matter of A- B- has been overruled, see A-B- III, 28 I. &. N Dec. 307 (Att’y Gen. 2021), and this court specifically rejected Grace in Gonzales-Veliz, 938 F.3d at 233–34. See also Meza Benitez v. Garland, No. 19-60819, 2021 WL 4998678, at *4 (5th Cir. Oct. 27, 2021) (explaining this Circuit’s rejection of Grace).

7

Case: 20-60131 Document: 00516340524 Page: 8 Date Filed: 06/01/2022

No. 20-60131

We have disagreed, holding that circularly defined social groups are not cognizable. See id. at 405; accord Gonzales-Veliz, 938 F.3d at 226. Indeed, the social groups identified in Jaco are nearly identical to those claimed by Lopez- Perez: “Honduran women who are unable to leave their domestic relationships . . . and Honduran women viewed as property because of their position in a familial relationship.” Jaco, 24 F.4th at 399. Because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Lopez-Perez’s social groups were not cognizable, thus ending the analysis. See In re Ramos, 23 I. & N. Dec. 336, 341 (BIA 2002) (noting that the BIA is “unquestionably bound” to follow circuit court rulings).

We DENY the petition for review.

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

It’s worthy of note that neither party challenged the propriety of the “particular social group!” So, this panel actually went beyond the issues before them to “stick it to” this abused refugee woman by gratuitously rejecting a well-established formulation of a “particular group” that has been the basis for granting protection in literally thousands of cases going back over two decades. (I note that even before A-R-C-G-, in Arlington the DHS Counsel routinely accepted this formulation of a “PSG” based on the so-called “Martin Memo” from DHS.)

Perhaps, that’s because even this panel acknowledged that the IJ’s “nexus analysis,” the actual ground of denial was “cursory.” In other words, this vulnerable women sought legal protection only to be shafted by poorly qualified Federal Judges at every level — the Immigration Court, the BIA, and the Fifth Circuit!

  • Here’s what Wade Henderson, then President and CEO of the Leadership Conference on Civil and Human Rights had to say about Judge Leslie H. Southwick in opposition to his confirmation:

Given the tremendous impact that federal judges have on civil rights and liberties, and because of the lifetime nature of federal judgeships, no judge should be confirmed unless he or she demonstrates a solid commitment to protecting the rights of all Americans. Because Judge Southwick has failed to meet this burden, we must oppose his confirmation.

https://civilrights.org/resource/opposition-to-the-nomination-of-judge-leslie-h-southwick/

  • Here’s what Michael Barajas of the Texas Observer had to say about Judge Edith Jones:

JONES HAS COMPARED ANYONE WHO BUYS THE ARGUMENT THAT TEXAS LAWMAKERS INTENTIONALLY PASSED A RACIST LAW TO “AREA 51 ALIEN ENTHUSIASTS.”

https://www.texasobserver.org/fifth-circuit-appeals-judge-edith-jones/

  • Here’s what the progressive group “Suit Up Maine” had to say about Judge Andrew Oldham at the time of his confirmation:

ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.

https://www.suitupmaine.org/extremist-judicial-appointments/

All these fears, criticisms, and predictions of bias have proved to be all too well-founded in the mal-performance of this “Toxic Trio” of far right ideologues.

“Heard (not Amber) on the street:

  • “So the one BIA precedent in the past 20 years that actually recognized a PSG as valid isn’t worthy of Chevron deference, but A-B- was?!!”
  • “No more judicial restraint? Why is DOJ not changing position and or dropping these cases?”
  • “The 5th Circuit decision claims to direct all IJs in the 5th NOT to apply ARCG. And, most 5th Circuit IJs are high deniers anyway, so they don’t exactly need encouragement.”
  • “Perhaps better IJs could think of creative ways to work around the 5th’s decision. But, they don’t exist in the 5th Circuit in Garland’s EOIR.”
  • “It also shows the problems caused by Garland’s failure to “redo” the BIA and the IJ corps on “Day 1.” By now, it’s too late.”

Unqualified, far-right Federal Judges, egged on and supported by Stephen Miller and GOP State AGs, have basically usurped the power of Congress and the Executive to set immigration policies. There is lots of contempt for humanity, racism, misogyny, religious intolerance, and disrespect for true individual liberty driving their vile and illegal agenda.

The Constitutional rights of all Americans and the future of our democracy is at stake here. Will enough folks wake up and resist this takeover before it ‘s too late? TBD!

🇺🇸Due Process Forever!

PWS

06-03-22

 

☠️👎🏽DEM’S CATASTROPHIC DUE PROCESS FAILURE:  AS PREDICTED, GARLAND’S “DEDICATED DOCKETS” ARE “ASYLUM FREE ZONES” TARGETING CHILDREN!🤮

“Floaters”
Garland’s vision of “justice” for refugee children appears to be little different from that of Stephen Miller and his White Nationalist predecessors at DOJ!
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)
Cindy Carcamo
Cindy Carcamo
Immigration Reporter
LA Times

Cindy Carcamo reports for the LA Times: 

BY CINDY CARCAMO STAFF WRITER

MAY 25, 2022 11:56 AM PT

After drug traffickers killed his little brother, William and his 6-year-old son, Santiago, fled Colombia last September to seek asylum in the United States.

Unbeknownst to William, who ended up in Los Angeles with a friend, he and his son immediately became part of a cohort of thousands of families in a “dedicated docket” program that the Biden administration established in 11 cities, including Los Angeles, in May 2021.

In response to a sudden rise of apprehensions last spring of families and children at the Southwest border, Biden promised the accelerated docket would resolve cases “more expeditiously and fairly.” These sorts of programs have existed in various forms under previous administrations; Biden’s program pushes immigration judges to resolve cases in 300 days, significantly shorter than the 4.5-year average of asylum cases in immigration court.

But according to a new Center for Immigration Law and Policy at UCLA Law report, the docket’s fast-track timeline has imposed new hardships on many asylum seekers and created additional obstacles that ultimately lead to higher rates of deportation orders, sometimes based on legal technicalities.

For William — who didn’t want his last name published, fearing reprisal against his family still living in Colombia — the docket’s expeditious nature meant he had only six weeks to secure legal representation before his first court hearing, leaving him to navigate a complex and often confusing system without an attorney. Immigration officials provided him with documents heavy with legal jargon in English. He could read only in Spanish.

In addition, those on the docket are released with “alternatives to detention,” which means they are monitored, either with an ankle bracelet or via a phone application. Immigration officials shackled William with a GPS monitor on his ankle before releasing him and his son.

Ultimately, an immigration judge ordered William and his 6-year-old to be deported in “absentia” when they didn’t show up for their court hearing at U.S. Immigration Court in downtown Los Angeles. In fact, at the time the judge gave the order, William was in the building, but was three floors below the courtroom in a waiting area at the direction of an Immigration and Customs Enforcement official. By the time William was told he was in the wrong place, the judge had already ordered the father and son’s removal from the U.S.

In Los Angeles, an estimated 99% of the 449 cases completed on the dedicated docket as of February of this year resulted in removal orders and about 72% of those cases were issued to people who missed their court hearing — “in absentia” — according to a report released Wednesday by the Center for Immigration Law and Policy and Immigrants’ Rights Policy Clinic at UCLA School of Law

Perhaps most striking, the report shows that almost half of those in absentia removal orders are for children, many 6 and younger.

In addition, court data analyzed in the report show that an estimated 70% of people on this particular docket don’t have legal counsel. In contrast, an estimated 33% of those on the Los Angeles court’s non-accelerated docket lack legal counsel.

The nature of the accelerated dockets made it nearly impossible for asylum-seekers to get a fair hearing, the report’s authors concluded. The high absentia rate, the report concluded, is a red flag that the dedicated docket isn’t working as it should.

. . . .

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

Read the rest of Cindy’s totally disturbing article at the link!

Sadly, this news will come as no surprise to readers of “Courtside.” Having watched these types of  efforts to co-opt the Immigration Courts as a vehicle of unfair, racially motivated “deterrence” and “enforcement,” I could see that this program was going to be an unmitigated disaster at EOIR, given Garland’s failure to install progressive judicial leadership and human rights and due process expertise into the broken and biased system he inherited from Sessions and Barr.

The NDPA is going to have to “dig in” and fight Garland and Mayorkas every step of the way, at every level of the system, to save as many lives as possible from their disgraceful continuation of a “Miller Lite” White Nationalist, anti-immigrant program of abusing and dehumanizing asylum seekers — most individuals of color and many of them children or other “vulnerable individuals.” 

🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!

PWS

05-26-22

⚖️HISTORY, LAW ENFORCEMENT, HUMAN RIGHTS, FORENSIC SCIENCE COME TOGETHER TO BRING WAR CRIMINALS TO JUSTICE!  — “They [Guatemalan soldiers and local Civil Patrol] covered her mouth, kicked her, and slapped her. Then they ordered her to take her clothes off and took her to the bedroom. They took turns raping her.”

 

This from my good friend and Alexandria neighbor Professor Alberto Benitez over at GW Law:

The attached article from the Washington Post reads like the affidavits we prepare and file in support of our clients’ asylum applications. Please read to the end. All respect to Sra. Alvarado, Sr. Osorio, and all the survivors, may the victims rest in peace, and thanks to Ms. Schneider and Mr. Langille.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

Scanned from a Xerox Multifunction Printer – 2022-04-25T093400.796

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

Kevin Sieff
Kevin Sieff
Latin America Correspondent
Washington Post
Nick Miroff
Nick Miroff
Reporter, Washington Post

From the above article by Kevin Sieff & Nick Miroff @ WashPost:

page5image3650581856

 

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

Obviously, what’s described elsewhere in the article is really “top notch” law enforcement work from DHS. It also illustrates one of my “continuing themes” of “effective interdisciplinary cooperation in immigration cases.” 

The irony is that DHS now spends too much of its law enforcement time trying to “chase down the victims of persecution” and deny them their rights to apply for asylum and their opportunity have their cases fairly evaluated and adjudicated.

What if, if rather than yielding to disgusting political grandstanding by GOP nativists and, sadly, some misguided Dems, who want to misuse Title 42 to end asylum law, the Administration stood up for the rights of refugees and asylum seekers for fair and orderly processing and determination of their claims for protection? What if refugees were encouraged to apply at legal ports of entry and at points outside the U.S. Wouldn’t that leave more time for “real” law enforcement at DHS — at the border and everywhere else? 

Interestingly, during the Trump regime, some ICE Special Agents came to the same conclusion. They unsuccessfully “lobbied” then DHS Secretary Nielsen for separation from the “gonzo civil enforcement” that ICE then was carrying out — concentrating on “terrorizing” local ethnic communities. Not surprisingly, this made local enforcement in many areas reluctant to cooperate with ICE on real law enforcement priorities — like that described in this case.

As this article suggests, there has been a real “mixed message” in DHS and DOJ in handling of asylum claims from the Northern Triangle. One arm acknowledges and prosecutes massive acts of persecution that are actually war crimes. Another arm, aided by bad judging at EOIR and poor leadership at DOJ, disingenuously denies that such persecutions took place — sometimes mischaracterizing it as “random violence”  — and that violence amounting to persecution on account of a “protected ground,” particularly violence directed at women and children, remains widespread in Latin America today.

🇺🇸Due Process Forever!

PWS

04-25-22

⚖️🇺🇸🙏🏽READ DEAN KEVIN JOHNSON’S MOVING OBIT FOR ACADEMIC GIANT PROFESSOR MICHAEL OLIVAS, U. OF HOUSTON LAW (EMERITUS)

 

https://lawprofessors.typepad.com/immigration/2022/04/rip-michael-olivas-scholar-immigration-and-much-more-mentor-friend-and-colleague.html

Friday, April 22, 2022

RIP Michael Olivas: Scholar (Immigration and Much More), Mentor, Friend, and Colleague

By Immigration Prof

Share

I learned earlier today that we had lost a great one, my friend, colleague, and mentor Michael Olivas.  It is with a profound sense of loss that I reflect on how much he has meant to me personally (including to my family, who he always asked about individually by name) as well as professionally.  Michael followed by son Tomas’s Little League baseball career and asked for annual updates at the annual meeting of the Association of American Law Schools, mentored me through tenure, and helped me land the deanship at UC Davis (by calling the Chancellor and putting in a good word).

 

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Michael was a wonderful scholar, including but not limited to immigration law.  He once was this blog’s Immigration Professor of the Year.  The book Law Professor and Accidental Historian:  The Scholarship of Michael A. Olivas(Editor Ediberto Román, 2017) brought together a group of scholars to analyze Michael’s path-breaking scholarship.  The publisher encapsulates the anthology as follows:

Law Professor and Accidental Historian is a timely and important reader addressing many of the most hotly debated domestic policy issues of our times—immigration policy, education law, and diversity. Specifically, this book examines the works of one of the country’s leading scholars—Professor Michael A. Olivas. Many of the academy’s most respected immigration, civil rights, legal history, and education law scholars agreed to partake in this important venture, and have contributed provocative and exquisite chapters covering these cutting-edge issues. Each chapter interestingly demonstrates that Olivas’s works are not only thoughtful, brilliantly written, and thoroughly researched, but almost every Olivas article examined has an uncanny ability to predict issues that policy-makers failed to consider. Indeed, in several examples, the book highlights ongoing societal struggles on issues Professor Olivas had warned of long before they came into being. Perhaps with this book, our nation’s policy-makers will more readily read and listen closely to Olivas’s sagacious advice and prophetic predictions.” (bold added).

In an introduction to Accidental Historian, I offered some thoughts on how much Michael had done for so many, myself included.  Here is that intro.  Download Law Professor and Accidental Historian

Michael also worked for change.  At great personal cost, he created the “Dirty Dozen” law schools without a Latina/o on the faculty.  Michael recruited many Latina/os into legal academia.  He mentored, advised, read drafts of articles, and much more for countless professors of color (myself included).  Among many other service activities, Olivas helped lead an effort to file an amicus curiae brief on behalf of immigration law professors in the Supreme Court in the Deferred Action for Childhood Arrivals (DACA) case.  As he was in that case, Olivas in my view was  on the right side of the trajectory of history.

 

The University of Houston Law Center

1.27K subscribers

Professor Michael A. Olivas Tribute Video

<div class=”player-unavailable”><h1 class=”message”>An error occurred.</h1><div class=”submessage”><a href=”https://www.youtube.com/watch?v=pgn-M4bUbd0″ target=”_blank”>Try watching this video on www.youtube.com</a>, or enable JavaScript if it is disabled in your browser.</div></div>

There no doubt will be many stirring tributes to Professor Michael Olivas in coming days.  Many will miss him immensely.  I sure will miss my guiding light and guardian angel.  RIP Michael Olivas.

KJ

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

Thanks, Kevin. Here’s more on Michael and his remarkable life and career:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/another-giant-falls-prof-michael-a-olivas-r-i-p

RIP and Due Process Forever!🇺🇸

PWS

04-24-22

CATHERINE @ WASHPOST “GETS IT!” — Why Are The Biden Administration & Some Dem Pols “Running Scared” From What Should Be A Big Win? — Many Of The Legal,Workers We Need Are Patiently Waiting @ The Border For Processing & Legal Admission — Dems Need To Stop “Shaking In Their Boots” & Start “Shaking Their Tails” To “Pre-Process” Refugees For An Orderly Restoration Of The Rule Of Law On May 23!

Catherine Rampell
Catherine Rampell
Opinion Columnist
Washington Post

https://www.washingtonpost.com/opinions/2022/04/11/democrats-missing-real-immigration-threat-workers-economy/

Opinion: Democrats are missing the bigger immigration issue

By Catherine Rampell

Democrats are terrified that a coming border surge might tank their midterm chances.

But they have largely ignored a much more serious immigration-related political risk. The problem in the months ahead isn’t that the United States will allow in too many immigrants; it’s that we’ll admit too few, particularly the kinds of workers who can fill critical labor-market shortages.

The Biden administration recently announced it would soon end Title 42, a Trump-era border-control policy. Citing the public health emergency when it invoked the policy in March 2020, the Trump team used the pandemic as a pretext to expel all arriving migrants without first allowing them to apply for asylum, as they have a legal right to do. Public health experts and immigration advocates — and many elected Democrats — have long condemned the policy, which has been used to carry out more than 1.7 million migrant expulsions.

President Biden’s own appointees have called the policy illegal and inhumane, with multiple high-level officials blasting it when they resigned. But Biden delayed reversing Title 42, fearing bad optics and attacks from Fox News. (Which arguably was going to attack him as an “open borders” president regardless.)

As expected, right-wingers are now catastrophizing about the looming “Armageddon” that will follow Title 42′s unwinding.

As a result, some worried Democrats are demanding that Biden keep this (likely illegal) policy in place. They have been so fixated on bad-faith right-wing attacks that they have missed the bigger, and much more serious, immigration-related liability: the millions of immigrants whose absence from the U.S. workforce is putting upward pressure on inflation.

Which Democrats are being blamed for, and which voters appear to care much more about.

The United States is experiencing inflationary levels not seen in four decades. Americans are unhappy, and they are more than five times as likely to cite “inflation,” “cost of living” or the economy in general than immigration as the nation’s biggest problem. These economic concerns are, however, rooted at least partly in immigration policy.

Worker shortages are pervasive, with vacancies hovering around record highs. The resulting disruptions to supply chains and normal business operations have raised costs for companies and consumers. Some of thesemissingworkers retired; some dropped out of the labor force because of care issues or illness. But a huge chunk were foreign-born workers who either never arrived in the United States in recent years or who were already here but have been forced out of their jobs because of government incompetence.

There are about 1.8 million fewer working-age immigrants in the United States today than would be the case if pre-2020 immigration trends had continued unchanged, economic researchers Giovanni Peri and Reem Zaiour estimate. Unsurprisingly, they also find that industries that had a higher percentage of foreign workers in 2019 — such as hospitality and food services — tend to have higher rates of unfilled jobs now.

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These immigrants, legal and otherwise, are “missing” because of a combination of Trump policies, covid-19 (which the Trump administration cited to justify imposing even more immigration restrictions) and Biden’s foot-dragging.

Although Biden pledged more humane and efficient immigration policies when he ran for president, he has been slow to reverse many of President Donald Trump’s onerous paperwork requirements and other policies designed to reduce legal immigration. Biden’s sluggishness owes partly to the magnitude of the challenge of rebuilding the U.S. immigration infrastructure — and partly to that deep Democratic fear of how Fox News et al. might portray any efforts to help immigrants.

As a result, last year, the United States experienced the lowest levels of new international migration in decades, census data shows.

. . . .

A border surge is infinitely more telegenic and attack-ad-friendly than backlogged paperwork. But the missing immigrant workforce is what more directly affects voters’ pocketbooks — and, by extension, Democrats’ political fortunes.

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

Read Catherine’s complete article at the link!

There is no need for a self-created “border surge” on May 23! We have a potentially quite efficient asylum screening and adjudication process in our existing law. If it were properly staffed and run, with competent legal and judicial  oversight, asylum seekers would use it — even if “success” is far from guaranteed. 

Experience has shown that asylum seekers in the U.S. who are represented, and therefore understand the system and their obligations, faithfully appear for hearings nearly 100% of the time, even when they appear likely to lose. Just because we as a nation have lost faith in our ability to operate under the the rule of law doesn’t mean that asylum seekers have! Obviously folks who have “hung around” in Mexico, in life-threatening conditions, for months or years, believing in a false promise of future fair and humane treatment by the U.S. aren’t as easily persuaded that our legal system is a sham as are our own politicos, bureaucrats, and pundits.

Sure, folks without asylum claims and those who don’t trust the system will continue to attempt unauthorized entry — particularly if the legal system lacks credibility, thus allowing smugglers to convince migrants to evade it.

But, with a robust asylum system functioning at ports of entry, CBP won’t be diverted by squandering resources “apprehending” (a serious misnomer) individuals who want nothing more than a fair and timely chance to present their asylum claims. CBP can concentrate their resources on those who truly intend to evade the legal system.

Even without the bogus Title 42, the law provides more than adequate tools for dealing with unauthorized entry. Those without documents are subject to “summary removal” by CBP Agents. Those subject to summary removal who claim asylum can be promptly screened for “credible fear” by trained USCIS Asylum Officers. Those who “flunk” credible fear are summarily removed under the existing order. Those who “pass” can be funneled into the legal asylum system and processed accordingly.

If you are a believer in “deterrence theory” for migrants who don’t have credible asylum claims, then the “expedited summary removal process” provides just that. No need to illegally invoke Title 42!

If the Obama, Trump, and now Biden Administrations had spent time and resources training Asylum Officers and reforming the Immigration Courts, instead of screwing around with futile (sometimes illegal) “enforcement only” gimmicks, idiotic walls, inhumane, expensive detention, inane messaging, and deterrence, there wouldn’t be largely manufactured “border emergencies.” Just a variety of fairly predictable “humanitarian situations” and opportunities to show how the rule of law works in a functioning democracy.

For example, the much feared and ballyhooed “caravan” that had Trump scared out of his (already limited) wits moved in “slow motion” to the border. A competent Administration could have processed them fairly, humanely, and timely upon arrival or shortly thereafter. Indeed, a competent Administration probably would have worked with the Mexican authorities and the UNHCR to have processed members of  those “caravans” for refugee status, in an orderly manner, at a point in Mexico well-removed from our border!

If, after truly fair, humane, and timely processing at ports of entry few qualified (I deem this unlikely under a truly fair and  competent system, but perhaps possible, who really knows, since we have been “chicken” to fairly adjudicate asylum claims from Latin American and the Caribbean for many years), then there’s your “legal deterrent” (for those who believe in deterrents) to those who might seek to come in the future.

“Caravans” don’t cross the border irregularly unless legal ports or entry are closed or de facto unvailable to them. Even then, most asylum seekers in caravans would prefer to wait for legal processing if it were available in a predictable, orderly, humane, fair, and timely manner. The Trump kakistocracy’s decision NOT to follow asylum laws and procedures at ports of entry actually caused unnecessary chaos, created danger, and provoked and encouraged unauthorized entries. The Biden Administration has, unfathomably, followed in Trump’s footsteps!

The “missing piece” for decades, across Administrations of both parties, has been a robust, realistic, well-staffed “outside the US” refugee processing system for Latin America and the Caribbean. If we REALLY don’t want folks “trying their luck” on asylum at the border, then give them honest and prompt answers to their refugee claims in or nearer to the countries in conflict they are fleeing.

The current law is by no means perfect. But, it’s a whole lot better than the politicos and bureaucrats who, for most of the past four decades, have failed to take straightforward, achievable steps to “make it work.” Refugee admissions overseas, and asylum admissions in the U.S. and at our borders, are a key element of our legal immigration system. It’s time to stop pretending otherwise!

And, as Catherine cogently points out, rapidly approving work authorizations and all types of applications for legal immigration under existing law also should have been “low hanging fruit” for the Biden Administration. A group of summer college students could have been trained in short order to wipe out the backlog of Employment Authorization Documents (“EADs”) during the summer of 2021. 

Even now, with just a little initiative, creativity, and energy, USCIS could hire and train summer employees to handle many routine and repetitive “adjudications.” All “adjudications” are NOT equal! EAD backlogs, intentionally created by the Trump kakistocracy, are totally unnecessary and inexcusable under Biden. 

How many retired Asylum Officers, USCIS Adjudicators with asylum experience, retired Immigration Judges, retired BIA staff attorneys, and retired Congressional immigration staffers has USCIS “rehired” during the past year to prepare for the reopening of the border?  If they haven’t, why not? It’s not too late to get more qualified individuals on board temporarily and give them to tools they need to fairly and timely process credible fear cases. 

How many agreements has USCIS entered with NGOs to prescreen, organize into orderly lists, and, where necessary, represent individuals now waiting at or near the Southern Border. If not, why not get some of those agreements into effect on an “expedited” basis by next Monday?

In Government, everything seems to be a candidate for bogus “expedited treatment” EXCEPT common sense, readily available measures that actually solve problems! Why is that? What’s an Administration that got elected by claiming “Government can work” going to do to prove that before May 23! Stop “making excuses for failure” and start solving problems!

It’s not rocket science! Dems must stop “hand wringing” about what they didn’t do in the last year and start making the system work under current conditions. That’s what “good government” is supposed to do! 

Poland, a country of fewer than 40 million about the size of a large U.S. state, was able to handle 4-5 million Ukrainian refugees in a matter of weeks. Meanwhile the US is “paralyzed” by the idea that 60,000 might apply with more than a month of lead time to prepare, and an established, if now suspended, legal framework to use. Not to mention that Biden had more than a year’s “advance notice” that the asylum system would need rebuilding and rejuvenation at the Souther border. Gimmie a break! The Biden Administration was put in office largely to “make Government work” — not to mindlessly repeat GOP White Nationalist “woe is me” talking points!

On a smaller scale, religious organizations and voluntary agencies mobilized and organized almost overnight to assist the U.S. Government in processing Ukrainian refugees at the border. Why couldn’t those efforts be expanded and replicated for the largely non-White refugee hopefuls currently waiting? Why create an “emergency” that needn’t be? Why not put more time, effort, and creativity into ACHIEVING success, rather than thinking of excuses for anticipated failure or shifting blame to the “victims?”

Honestly, as the late, great political pundit
Casey Stengel
 would have said, “can’t anyone here play this game?”

Casey Stengel
“Time and time again, the Biden Administration’s inept and unprincipled approach to immigration and human rights leaves this guy scratching his head.”
PHOTO: Rudi Reit
Creative Commons

Also, Catherine Rampell understands the complex issues of immigration better than any “top level” official in the Biden Administration that I’m aware of. If they aren’t going to hire her, they should at least heed her advice. It’s free, accessible, clearly and succinctly written, and almost always “spot on!”

🇺🇸Due Process Forever!

PWS

04-14-22

⚖️SOCIAL JUSTICE & PROGRESS:  MADISON, WI MOVES FORWARD WITH PROMISING LOCAL LEADERS COMMITTED TO MAKING THINGS BETTER FOR EVERYONE — Esther J. Cepeda @ Wisconsin State Journal

Esther J. Cepeda
Esther J. Cepeda
Columnist
Wisconsin State Journal
PHOTO: John Hart WI SJ

https://madison.com/opinion/column/esther-j-cepeda-madison-embraces-leaders-of-color/article_b8142fad-87be-5431-af70-52063f11347e.html

. . . .

This is the point of electing people of color to positions in which they are likely to be able to add a unique view to discussions about allocating public resources that centers disparities in particular communities.

The people of color who were elected to the Dane County Board — Brenda Yang, 19th District, Dana Pellebon, 33rd District, Olivia Xistris-Songpanya, 13th District; April Kigeya, 15th District — are cultural ambassadors who likely have the beginnings of answers to thorny questions that have bedeviled the Madison area for years.

Questions like how to perform outreach in communities that are cut off from Madison’s glittering Downtown and its majestic campuses; what to do about the lack of jobs for those approaching the job market with few skills; and how to string together disconnected neighborhood enclaves into a multicultural coalition that could hold their representatives to account.

Intertwined with how county leaders move toward equality for the most vulnerable is Tuesday’s election of women of color to the Madison School Board.

Nothing is more important than establishing the local public schools as safe places where children of color can read, write and compute math at the same level as their white, grade-level peers.

As a former Madison teacher, I can tell you from personal experience that the Madison schools have put an incredible amount of energy, time and cash behind training and programs to guide staff toward an understanding of the special needs, talents and assets of children of color.

School Board president and first-term incumbent Ali Muldrow was re-elected Tuesday, and Nichelle Nichols won an open seat. These women bring extensive personal and professional experience with Madison schools and the district office to bear on huge budgets meant to target the neediest students while still nurturing high-flyer learners.

Both the School Board and the Madison City Council have majorities of people of color leading them.

Surely, the authors of the “Race to Equity Project” report wouldn’t declare that the “mission” to promote “greater public awareness and understanding of the depth and breadth of the racial disparities that differentiate the white and black experience in Dane County, Wisconsin” is accomplished.

But they did tip their hat to all those who came before them. “Long before we came along, mission-driven institutions and a host of committed Dane County activists had been compiling an impressive record of struggle against racism, discrimination, and unequal opportunity. They have fought for equality and fairness for people of color from their positions as public officials, in the classroom, from the pulpit, at neighborhood centers, and in the day-to-day work of improving the future for at-risk children and families.”

Amen. It is on the shoulders of those who have gone before them that leaders of color in Madison are finally getting their due. There is much work to be done, but things are moving in the right direction. Compared to so many other municipalities, Dane County and Madison are moving relatively quickly to address big needs — this is exciting!

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

Read Esther’s complete article at the link.

The “grass roots level” is a great place to make fairness and equity work for everyone in the community.

🇺🇸Due Process Forever!

PWS

04-11-22

🇺🇸🗽⚖️👍🏾🤗 D.C. VALUES COALITION’S GREAT RESPONSE TO ABBOTT’S 🤮🏴‍☠️ LATEST RACIST STUNT: “DC welcomes all immigrants, including DACA recipients, TPS holders, refugees and asylum seekers from all nations to our area, offering them help and support.”

Adina Appelbaum
Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
PHOTO: “30 Under 30” from Forbes

https://www.caircoalition.org/news-clip/dc-values-coalition-statement-response-governor-abbotts-announcement

DC Values Coalition Statement in Response to Governor Abbott’s Announcement

Apr 08, 2022

On Wednesday, April 6, Governor Greg Abbott of Texas announced he will start busing immigrants to Washington, DC in response to the decision by the government to end Title 42. Title 42 is a cruel policy, which used the pandemic as an excuse to expel families and individuals from the United States under the guise of public health.

We as the DC Values Coalition condemn Governor Abbott’s announcement. We do not believe in using human beings to make political statements. Regardless of what happens next, DC welcomes all immigrants, including DACA recipients, TPS holders, refugees and asylum seekers from all nations to our area, offering them help and support.

Organizations in the DC Values Coalition will support these individuals with their needs and make sure that DC remains a place that is welcoming and safe for immigrants. We will also push to guarantee they are not detained and we will continue to advocate for ICE to exercise discretion in detention and deportation efforts.

The DC Values Coalition is a coalition of DC-based immigration legal and social service providers that seeks to defend immigrants’ rights.

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

Many thanks to all concerned for this terrific response! I particularly appreciate the efforts of my friend Adina Appelbaum of CAIR Coalition, my former star student in Refugee Law & Policy at Georgetown Law, a former Arlington Immigration Court Legal Intern, and a “charter member” of the NDPA.

🇺🇸Due Process Forever!

PWS

04-08-22

 

IT’S HELL TO BE A  REFUGEE! 😭— But, It Still Pays To Be White! — Racism Dominates US Border Policy As Ukrainians Welcomed, Black & Brown Refugees, Not So Much!🤮 — “Racial Justice” Takes a L.O.A. At Mayorkas’s DHS & Garland’s DOJ!

 

Haitians at the Border
U.S. Border Patrol Haiti
By Bart van Leeuwan
“Haitians and other refugees of color probably wish they could pass for White Ukrainians!”
Republished by license

 

 

 

 

 

 

https://www.washingtonpost.com/world/2022/04/02/with-no-direct-pathways-united-states-hundreds-ukrainian-refugees-are-gathering-us-mexico-border/

Kevin Sieff
Kevin Sieff
Latin America Correspondent
Washington Post

Kevin Sieff reports for WashPost:

. . . .

Tijuana was often indifferent to the iterations of migrants and refugees who arrived here. But the support for Ukrainians was immediate.

“We will work together so you can achieve your dream,” said the city’s mayor, Montserrat Caballero, when she visited the encampment on Thursday. “Welcome to Tijuana.”

On Friday evening, one woman serenaded the refugees while strumming an acoustic guitar. An inebriated American man handed hundreds of dollars in cash to a Ukrainian American volunteer, cursing out Russian President Vladimir Putin as he distributed the money.

“I love Ukrainians,” he slurred.

No. 319 was 21-year-old Svyastoslav Urusky, from Lviv, whose grandparents lived in Sacramento and were waiting for him on the other side of the border crossing.

Like many of the Ukrainians in Tijuana, Urusky had visited U.S. embassies and consulates in European capitals after leaving Ukraine, inquiring about a path to refugee status in the United States.

“They told us, ‘Sorry, we don’t have any options for you yet,’ ” Urusky recounted an embassy official in Poland saying.

So he and his family, after reading the guidance on a Telegram channel, booked flights to Mexico. At 1 p.m. on Friday afternoon, his number was called.

. . . .

At the Tijuana border crossing, U.S. officials have given orders that only Ukrainians can be put on the list. A policy known as Title 42, due to be lifted in May, has prevented asylum seekers from crossing the border to make their claims since the beginning of the pandemic. It has been used in about 1.7 million migrant expulsions over the past two years.

On Friday, a family of Honduran asylum seekers, turned away at the border, passed by the Ukrainian encampment to ask for small change.

U.S. officials have carved out an exemption to Title 42 for Ukrainians. But many Russians are fleeing simultaneously, including some with Ukrainian relatives. No. 939 was a Ukrainian woman whose 18-year-old son had a Russian passport.

“Will they let us across?” she asked a volunteer. No one could answer.

. . . .

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

Read the complete story at the link.

I’m in favor of fair, humane, generous, and dignified treatment of all refugees and asylum seekers! That’s actually what our laws and international treaties to which we are party require. 

Sadly, under Trump, the U.S. Government, aided to a large extent by feckless and often right-leaning Federal Courts, simply “normalized” racism-driven violations of legal and human rights. So far has our political system and the rule of law deteriorated that the Biden Administration, and even some Dem pols (e.g., Joe Manchin, Henry Cuellar), speak of illegal racist treatment of refugees and migrants as “options” and “strategies” rather than legal and moral perversions. 

According to these folks, we should check the polls, keep an eye on the midterms, and heed the chatter on Sunday talk shows before deciding whether it’s “good policy” to treat persons of color as human beings entitled to seek legal protection or whether to keep knowingly and intentionally violating the law by treating their lives as expendable because it might “play better” at the polls. (It actually won’t).

Perhaps the “low point” of the recent discussion of the long-overdue, still well in the future, elimination of the “illegal Title 42 ruse” came on Meet the Press with Chuck Todd. There, Chuck quipped that an anonymous Biden Administration source had said something to the effect of: “It’s a long time till May 23, perhaps we’ll have a ‘new strain’ of COVID by then.” 

In other words, perhaps not surprisingly given their scofflaw, racist, demeaning, and dehumanizing actions at the border to date, some within the Biden Administration are secretly (or not so secretly) “hoping” for another “fake emergency.” That will allow them to continue to violate the legal and human rights of Haitians, Latin Americans, and other persons of color while offering preferential treatment to their White Brothers & Sisters (“folks just like us”) fleeing Ukraine!

Once you violate our law 1.7 million times, with deadly, disastrous human consequences, it’s hard to stop! It’s also hard to talk credibly about “equal justice” and the “rule of law” when your actions repeatedly are contrary to both. That’s a problem that the Biden Administration, and particularly Garland and his complicit group at DOJ, have yet to come to grips with!

🇺🇸Due Process Forever!

PWS

04-04-22

NGOs’ EXPOSE, DOCUMENT ICE’S LIES 🤥 TO CONGRESS ABOUT ATTORNEY ACCESS IN SCATHING DEMAND FOR ACCOUNTABILITY!

Pinocchio @ ICE
“Pinocchio @ ICE”
Author of Reports to Congress
Creative Commons License

https://immigrantjustice.org/sites/default/files/content-type/commentary-item/documents/2022-03/NGO-Rebuttal-to-ICE-Legal-Access-Report-March-22-2022.pdf

     MEMO

To: Professional staff for the House and Senate Appropriations Subcommittees on

Homeland Security

From: National Immigrant Justice Center, American Immigration Council,

ACLU of Southern California, Southern Poverty Law Center

Re: Concerns re Veracity of ICE’s February 2022 “Access to Due Process” Report Date: March 22, 2022

On February 14, 2022, Immigration and Customs Enforcement (ICE) presented a report entitled “Access to Due Process” to the Chairs and Ranking Members of the House and Senate Appropriations Subcommittee on Homeland Security [hereinafter “ICE Access Memo”]. The report was responsive to direction in the Fiscal Year (FY) 2021 Joint Explanatory Report and House Report accompanying the Department of Homeland Security (DHS) Appropriations Act, P.L. 116-260, requiring ICE to provide a report on attorney access to ICE facilities, the rate of denial of legal visits, and attorney/client communications. The ICE Access Memo largely focuses on FY 2020, i.e. October 1, 2019 through September 30, 2020.

Our organizations provide legal services or represent organizations that provide legal services to individuals in ICE detention facilities throughout the United States, and work closely in coalition with many other organizations that do the same. We write to share our concerns regarding the ICE Access Memo, which omits key facts and blatantly mis-states others. As recently as October 2021, more than 80 NGOs delivered a letter to DHS and ICE documenting a litany of access to counsel obstacles imposed by ICE on people in detention. The Southern Poverty Law Center (SPLC) and American Civil Liberties Union (ACLU) of Southern California remain in active litigation against DHS and ICE over allegations of access to counsel violations so severe that they violate the Constitution. Yet the ICE Access Memo ignores the lawsuits and the written complaints, instead presenting a generally positive picture of the state of access to counsel and legal services for people in ICE custody. That picture bears little resemblance to the reality our legal service teams and clients experience daily in trying to communicate with each other.

This memo addresses the key points made by ICE in its Access Memo, and provides narrative and illustrative details of the misrepresentations made throughout. The topics addressed include: I) Access to legal counsel generally; II) Access to legal resources and representation (through the provision of free phone minutes and video conferencing capacity); and III) ICE’s purported efforts to address issues arising with access to legal counsel.

Our legal and policy teams would also be interested in engaging in an informal briefing with

  

 your teams to discuss these issues in greater depth. Please contact Heidi Altman at the National Immigrant Justice Center at haltman@heartlandalliance.org to arrange the briefing.

I. There are widespread, significant challenges in access to legal counsel at ICE facilities nationwide.

In its Access Memo, ICE claims that: a) “noncitizen access to legal representatives . . . has continued unabated” during the COVID-19 pandemic; b) in FY 2020, “ICE’s inspections did not identify any legal representatives being denied access to their clients, as confirmed by the DHS [Office for Civil Rights and Civil Liberties] and other oversight bodies”; and c) “Facilities continue to provide noncitizens opportunities to meet privately with their current or prospective legal representatives, legal assistants, translators, and consular officials.”

These representations make glaring omissions regarding ongoing challenges to legal access, illustrated in great detail below. Further, we note that while ICE’s inspections (which DHS’s own Inspector General has found to be flawed) may not have specifically identified legal representatives being denied access to their clients, all of our organizations have experienced these denials to be pervasive.

a) Far from continuing “unabated,” access to counsel in ICE detention has been significantly hampered during the COVID-19 pandemic.

ICE claims that “noncitizen access to legal representatives remains a paramount requirement throughout the pandemic and has continued unabated.” This claim is either an intentional misrepresentation or reflects a severe turn-a-blind-eye-mentality within the agency. DHS and ICE face ongoing litigation brought by legal service providers forced to seek emergency relief to gain even minimal remote access to their clients during the pandemic. And just months ago, DHS Secretary Mayorkas and Acting ICE Director Johnson received a 20 page letter from dozens of NGOs outlining in great depth the “host of obstacles to attorney access that exist in immigration detention facilities nationwide.”1 Referring to the agency’s commitment to providing legal access as “paramount” thus clearly omits important content from this report to Congress, the body meant to provide oversight of the agency in the public interest.

As the pandemic began to spread in April 2020, SPLC was forced to seek a Temporary Restraining Order (TRO) to ensure adequate remote access to counsel in four ICE facilities in Louisiana and Georgia, and then had to file a motion to enforce that TRO. The case is still active today and the court is seeking additional information on the state of the government’s compliance with the TRO. In granting the TRO in June 2020, the D.C. District Court found in its

1 Letter to The Honorable Alejandro Mayorkas and Tae Johnson from the American Immigration Council, the American Civil Liberties Union, et al., Oct. 29, 2021, available here.

       2

 Memorandum Opinion that DHS’s response to the pandemic “with respect to increasing the capacity and possibilities for remote legal visitation and communication has been inadequate and insufficient.” The Court also found ICE to be imposing restrictions and conditions on remote legal visitation and communication that were “more restrictive than standards promulgated for criminal detainees.” The TRO, among other things, required ICE to ensure access to confidential and free phone and video calls to legal representatives, to develop a system to schedule such calls, to create troubleshooting procedures for technology problems, and to institute a system to allow for electronic document transfer.2

SPLC was not the only legal service provider forced to seek emergency relief in order to get access to its clients as the pandemic spread. Also still in active litigation is Torres v. DHS, a case brought by the ACLU of Southern California, Stanford Law School Immigrants’ Rights Clinic, and Sidley Austin LLP on behalf of the American Immigration Lawyers Association and Immigrant Defenders Law Center in December 2018. The Torres case alleges many of the same obstacles to counsel in three California facilities as those at issue in SPLC v. DHS, including limited access to legal phone calls, prohibitively expensive calling rates, limited access to confidential phone calls with counsel, and inadequate opportunities for in-person attorney-client visitation.3 In April 2020, the District Court for the Central District of California entered a TRO in response to the plaintiff organizations’ arguments that ICE’s COVID-19 policies had effectively barred in-person legal visitation, leaving no confidential means for attorneys and detained clients to communicate.

In granting the TRO in Torres v. DHS, as of April 2020, the Court found the plaintiffs “likely to succeed on the merits of their claims that [DHS’s] COVID-19 attorney-access policies violate their constitutional and statutory rights,” noting that the pre-pandemic conditions alleged by plaintiffs made out such a claim, and the post-pandemic restrictions were “far more severe.”4 The Court also noted: “Defendants’ non-responsiveness to Plaintiffs’ factual assertions is telling.

2 In Southern Poverty Law Center v. Dep’t of Homeland Security (D.D.C.), 1:18-cv-00760, Dkt. 18-760, SPLC argues that the “totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons [the LaSalle Detention Facility in Jena, Louisiana, the Irwin County Detention Center in Ocilla, Georgia, the Stewart Detention Center in Lumpkin, Georgia, and Pine Prairie ICE Processing Center in Pine Prairie, Louisiana] deprives SPLC’s clients of their constitutional rights to access courts, to access counsel, to obtain full and fair hearings and to substantive due process, in violation of the Due Process Clause of the Fifth Amendment” and “violates the Administrative Procedure Act, as well as SPLC’s rights under the First Amendment.” The first complaint filed in April 2018 is available here; further briefing and orders in the litigation are available on the SPLC’s website here.

3 In Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, the ACLU of Southern California and the Immigrants’ Rights Clinic at Stanford Law School filed a class action lawsuit alleging that barriers to attorney-client communications at three ICE facilities in California (the Theo Lacy and James A. Musick county jails and the Adelanto Processing Center) were so severe as to make it nearly impossible for people in detention to reach their lawyers, in violation of statutory law, constitutional protections, and the Administrative Procedures Act. The first complaint filed in December 2018 is here; further briefing and orders in the litigation are available on the ACLU of Southern California’s website here.

4 Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, Order Granting Temporary Restraining Order, available here.

    3

 First, it took Defendants multiple rounds of briefing and two hearings to state whether there is any definite procedure to access free confidential legal calls and what that procedure is. Even if a procedure exists, Defendants do not rebut Plaintiffs’ showing that few detainees have ever accessed a free confidential legal call.” The Court further addressed the common problem of individuals in detention being forced to pay exorbitant phone rates for what should be free legal calls, stating, “Nor do Defendants explain why it is reasonable to expect detainees earning about one dollar a day…, or their families in the midst of an economic crisis, to fund paid ‘legal’ calls on recorded lines in the middle of their housing unit.”5

While litigation is ongoing in SPLC v. DHS and Torres v. DHS, our own legal teams throughout the country face daily, grueling obstacles in communicating with and effectively representing their detained clients, obstacles that have been compounded during the pandemic. ICE’s representations regarding phone and video-conference access are frequently belied by on-the-ground challenges including subcontractors’ belligerence, technology difficulties, or complex and opaque processes that even trained attorneys struggle to understand. As described by advocates in their October 2021 letter to DHS, the following examples are illustrative:

➔ Video-conference (VTC) technology is often not available or extremely limited in availability, even when facility policy states otherwise: An attorney with the University of Texas Immigration Law clinic attempted to schedule a VTC visit with a client who had recently been detained at the South Texas ICE Processing Center in Pearsall, Texas. A GEO staff member informed the attorney that there were no VTC visits available for two weeks—and even then availability was “tentative.” ICE’s webpage for Pearsall asserts that VTC appointments are available daily, 6 a.m. to 9 p.m., and can be scheduled 24 hours in advance.

➔ Emails and phone messages from attorneys go undelivered: The American Immigration Council’s Immigration Justice Campaign placed the case of a man detained at the El Paso Service Processing Center in Texas with a volunteer attorney at a law firm in Pittsburgh, Pennsylvania in June 2021. That attorney sent three emails to the El Paso facility requesting that a message be delivered to the client to call his new attorney. The attorney then learned that the client had been transferred to the Otero County Processing Center and sent two more emails to that facility requesting a call with the client. On June 28, an ICE officer claimed a message had been delivered to the client. On July 6, the client appeared before an immigration judge and stipulated to an order of deportation, seeing no way to fight his case and no way to find an attorney. That evening, the client received two of the attorney’s messages and was finally able to contact her, but the damage had been done.

5 Id.

  4

 ➔ Poor sound quality, dropped calls, and limited phone access: The Refugee and Immigrant Center for Education and Legal Services (RAICES) in San Antonio, Texas faces consistent problems trying to speak to clients detained at the facility in Pearsall, Texas. For example, over the course of one month in April and May 2021, RAICES staff struggled to prepare a declaration for a Request for Reconsideration of a negative credible fear interview for a client due to a host of communication failures at the facility. After RAICES was unable to contact the client for three days (despite prior regular calls) RAICES staff was finally about to reach their client, but the call dropped before the declaration was complete and GEO staff prohibited the client from calling back. GEO staff then did not schedule a VTC call as requested, canceled a VTC call, and a telephone call to attempt to finalize the client’s declaration had sound quality so poor that it was difficult to hear the client. These obstacles to access delayed the submission of the client’s Request for Reconsideration by several weeks. Similarly, The Florence Immigrant & Refugee Rights Project (FIRRP) has difficulty conducting legal intakes at La Palma Correctional Center in Arizona because guards frequently cut calls short. FIRRP works to complete intakes in just twenty to thirty minutes. Yet in the first two weeks of July 2021, it was unable to complete intakes for five potential clients because their calls were cut short by La Palma staff.

➔ Phone access restricted during quarantine and beyond: The El Paso Immigration Collaborative (EPIC) represents detained people in the El Paso area detention facilities, including the Torrance County Detention Facility. Staff at the Torrance facility have repeatedly told EPIC attorneys that they simply do not have capacity to arrange legal calls—with delays that can last for one week or more. For example, a call scheduling officer stated in August 2021: “Courts are my main priority and when I get chances to make attorney calls I will get to that.” Throughout the El Paso district, ICE denies any access to over-the-phone legal intakes and/or legal calls to people who are in quarantine for being exposed to COVID-19.

➔ Prohibitive cost of phone calls: The Immigration Detention Accountability Project of the Civil Rights Education and Enforcement Center (CREEC) answers calls to a free hotline available in immigration detention centers nationwide to monitor ICE compliance with the injunction in Fraihat v. ICE. Hotline staff routinely receive reports from callers—typically people with medical vulnerabilities or in need of accommodations—that they do not receive free calls for the purpose of finding an attorney, and the cost of telephone calls in detention is prohibitive for finding a removal defense attorney.

➔ Obstacles to sending and receiving legal documents: The Carolina Migrant Network represents a significant number of people detained at the Winn Correctional Center in

5

 Louisiana. The Winn facility has the lowest availability of immigration attorneys in the entire country—a recent study showed that there was one immigration attorney for every 234 detained people at Winn within a 100-mile radius of the facility.6 Winn is so far from most immigration attorneys and legal services providers that most attorneys who serve that facility must do so remotely, but Winn will not facilitate getting legal documents to and from clients. Winn will not allow attorneys to email or fax a Form G-28, Notice of Entry of Appearance as Attorney, for signing. Instead, attorneys must mail a Form G-28 with a return self-addressed stamped envelope. It takes approximately two business weeks for Carolina Migrant Network attorneys to receive a signed Form G-28, because the facility is so geographically isolated that the postal service will not guarantee overnight mail.

➔ Intransigence of subcontractors and inadequate access policies in local jails: An attorney with Mariposa Legal in Indianapolis, Indiana routinely confronts obstacles to reaching clients at the Boone County Jail in Kentucky. Those challenges include a faulty fax machine as the only mechanism for requesting client calls or visits, the facility’s refusal to allow any calls on Thursdays, staff who bring the wrong person to the attorney client room, and the use of attorney-client rooms as dorms when the population level increases. Boone’s mail system is particularly problematic. An attorney sent paperwork via FedEx to a client in July 2021 and the client simply never received the package. Jail staff made an “exception” and allowed the attorney to email the documents but delayed the attorney being able to file a time-sensitive Freedom of Information Act request by more than a week.

b) Legal representatives are routinely denied access to their clients in ICE custody.

The ICE Access Memo states that, “ICE ERO does not track the number of legal visits that were denied or not facilitated and/or the number of facilities that do not meet ICE standards for attorney/client communications. However, in FY 2020, ICE’s inspections did not identify any legal representatives being denied access to their clients, as confirmed by the DHS Office for Civil Rights and Civil Liberties (CRCL) and other oversight bodies.” Given ICE’s own admission that it does not track or keep records of visit denials, this statement is meaningless.

As organizations providing legal services to individuals in detention, we can confirm that in-person and virtual legal visits are in fact routinely denied either outright or because of facility

6 This study is found in a report called Justice-Free Zones, which also provides in-depth evidence and data regarding the lack of availability of lawyers for many of ICE’s newest detention facilities. See American Civil Liberties Union, National Immigrant Justice Center, Human Rights Watch, Justice-Free Zones: U.S. Immigration Detention Under the Trump Administration (2020), 20-23. The report discusses at length the ways in which ICE’s use of remote detention centers and prisons for its detention sites undermines the ability of those in custody to find counsel. This topic is not addressed in this memo, but underlies the entirety of the due process crisis for detained immigrants facing removal proceedings.

   6

 policies so restrictive as to constitute denials in practice. SPLC has documented over two dozen incidents of legal visits, including four in-person visits and 22 calls and VTCs, that were denied or not facilitated at the Stewart, Irwin, LaSalle and Pine Prairie facilities in FY 2020 alone. Attorneys attempting in-person meetings in 2020 were often left waiting for their visits for so long that they had to leave the detention center and come back another day, a constructive denial even if not outright. SPLC attorneys also report phone calls and VTCs being regularly canceled or unilaterally rescheduled by facility staff with no notice to attorneys, often preventing attorneys from speaking to clients on time-sensitive matters.

In many facilities, the procedures and rules around setting up attorney-client visits are so cumbersome as to make visitation nearly impossible; in these cases ICE may not be denying visits outright but they are allowing conditions to persist that constitute a blanket denial. In a number of facilities in Louisiana, for example, attorneys are not allowed to meet with clients in person unless visits are scheduled by 3 p.m. the day before. This policy renders visits entirely unavailable for attorneys who need to meet with a client for time-sensitive matters that cannot wait 24 hours.

In Torres v. DHS, the court noted in ordering a TRO in April 2020 that ICE “equivocate[d]” on the question of whether contact visitation was allowed at all at the Adelanto facility in California. ICE eventually admitted that “only two contact visits” had been allowed between March 13 and April 6, 2020.7

c) Legal representatives frequently face obstacles to meeting in a private confidential space with current or prospective clients.

The ICE Legal Access Memo states that, “Facilities continue to provide noncitizens opportunities to meet privately with their current or prospective legal representatives, legal assistants, translators, and consular officials.” However, it is our experience that in many facilities it is not possible for individuals to meet in person with their lawyers in a private setting, and that access to translators is also frequently compromised. Many detained individuals are also unable to access private, confidential remote communication with their attorney. The ability to access a confidential space may be the difference between presenting a successful claim to relief or being order deported, especially for individuals sharing difficult or traumatic experiences or sharing information that they fear will place them at risk if overheard by other people in detention such as sexual orientation or gender identity.

In many facilities, especially since the pandemic, it is nearly or completely impossible to access a confidential space to have a remote communication with one’s attorney. Some facilities may

7 Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, Order Granting Temporary Restraining Order, available here.

 7

 claim to provide confidential spaces, but the reality is quite different. In the Pine Prairie facility, for example, the spaces designated for “confidential” attorney-client phone calls and VTC are actually cubicles with walls that do not reach the ceiling and allow for noise to travel outside the cubicle. Cubicle-style spaces with walls that do not reach the ceiling are also the only spaces available for so-called confidential attorney-client meetings at the T. Don Hutto Residential Center in Texas, where the University of Texas School of Law Immigration Clinic provides services. Similarly, confidential phone calls are provided at the Stewart facility but are limited to 30 minutes, which is far from sufficient for many types of legal calls necessary to gather facts or prepare for an immigration court case, especially if an interpreter is needed.

There are also severe restrictions to individuals’ ability to meet in person with their lawyers in confidential settings. At Pine Prairie, for example, because the cubicles described above have been reserved for VTC during the pandemic, attorneys must meet with their clients or prospective clients at a table in the middle of an open-plan intake space that is the most highly-trafficked part of the facility. There is absolutely no privacy—guards, ICE officers, other facility staff, other detained individuals and even people refilling the vending machines all travel through or wait in this space frequently, making it impossible to have a confidential conversation.

We also contest ICE’s claim that it provides ready access to translators as necessary for attorney-client communication. As explained in briefing in SPLC v. DHS, for example, the non-contact attorney-client visitation rooms in the LaSalle, Irwin, and Stewart facilities provide only one phone on the “attorney side” of the room, which means that there is no way for an attorney to be accompanied by a legal assistant or interpreter. Also at these facilities, a “no-electronics policy” is maintained meaning that attorneys are effectively denied from accessing remote interpretation services (there are also no outside phone lines available).

The following examples provide further evidence of the ways in which access to confidential in-person or remote communications are restricted throughout ICE detention:

➔ Restricted access to confidential remote communications during periods of COVID quarantine: In the McHenry County Jail in Illinois, prior to its closure, individuals were subjected to a mandatory fourteen-day quarantine period if exposed to COVID-19, during which they had literally zero access to confidential attorney-client phone calls. In January 2022, the National Immigrant Justice Center (NIJC) raised this issue to the Office of the Immigration Detention Ombudsman, sharing several case examples. One of the examples was that of an NIJC client who was represented by pro bono attorneys at a major law firm. In the weeks leading up to the client’s asylum merits hearing, the pro bono team contacted the facility and were told that no time slots were available because their client was in COVID-related quarantine. The facility informed the pro bono attorneys that their

8

 only option to speak with their client was if he called them during the one hour every other day when he had access to the communal phones. Although the communal phones offered no confidentiality, it was the only option for them to speak with their client. The pro bono team had to deposit money into their client’s commissary account in order for him to call out, and then faxed him a letter asking him to call them during his one hour window. Their client did call, but he could barely hear his attorneys because the noise from the television and other people in detention speaking in the background was so loud.

➔ So-called “confidential spaces” providing no privacy: The University of Texas School of Law Immigration Clinic serves women detained at the Hutto facility, where since the start of the COVID pandemic attorneys have been required to sit in one plastic cubicle while their clients sit in another. This requires attorneys and their clients to raise their voices while speaking to one another, further limiting confidentiality. Two clinic students spoke to several women from Haiti who had experienced sexual assaults. The women had not been able to speak to attorneys prior to their credible fear interviews because of limits placed on attorney access, and so had little understanding of the process and the importance of describing their experiences fully. Because of this obstacle to due process, the women did not share their experiences of sexual assault during their credible fear interview. One woman was deported even after the students took on the case, because it took so long for legal counsel to learn about the details of the assault due to communication barriers.

II. ICE’s claims that it provides enhanced access to legal resources and representation are belied by the experiences of legal service providers and detained people.

In the Access Memo, ICE claims that it “made improvements in legal access accommodations by enhancing detained noncitizens’ remote access to legal service providers,” specifically including: a) the provision of more than 500 free phone minutes to “most noncitizens” and b) by expanding the Virtual Attorney Visitation (VAV) program from five to nine programs in FY 2020. ICE fails to mention, however, that the rollout of both programs has been extremely flawed. The 500 free minutes, for those in facilities where they are offered, are usually not available on a confidential line (making them generally not usable for attorney-client communication) and detained individuals often face severe obstacles in accessing the minutes at all. The VAV program, similarly, is in practice often inaccessible to attorneys trying to reach their clients.

a) The 500 free minutes do not meaningfully enhance legal access because they are usually available only on non-confidential lines and the length of calls is restricted.

ICE describes in the Access Memo that 520 minutes per month are provided to individuals detained in all facilities with Talton operated phone systems. The list of Talton-served facilities is

  9

 available on the AILA website here. However, these minutes are of limited utility in enhancing access to legal counsel for two primary reasons: First, the minutes can generally be used only in 10 or 15-minute increments after which time the call automatically cuts off, disrupting attorney-client calls and making conversations with interpreters particularly difficult. Second, in most cases it appears the minutes are available only on phones in public areas of housing units, and therefore cannot be used for confidential attorney-client communication. It has also been our experience that it is difficult for individuals who do not read Spanish or English to access the minutes at all, as the instructions for how to use them are usually provided in English and Spanish without accommodation for speakers of other languages, including indigenous languages.

Our own legal service teams and clients have experienced these challenges:

➔ The Otay Mesa Detention Center in California is one of the facilities ICE claims provides 520 free minutes. NIJC provides legal services to individuals at the Otay Mesa facility, and has found it to be difficult and often impossible for attorneys providing remote representation to get a secure line set up using clients’ free minutes. One NIJC attorney has had some success in doing so by calling the facility, asking for her client to submit a form adding her to their attorney list, and then calling her back. However, she has found this to only work in rare instances and notes that it usually takes at least three days’ advance notice.

➔ The American Immigration Council works with partners who provide legal services at the Otero County Processing Center in New Mexico, which is also on the list of facilities providing 520 free minutes. However, the free minutes available at the Otero facility are available only on recorded lines from phones in public areas of the housing units, thus not confidential. In July 2020, a law clerk with EPIC shared that they had conducted an intake interview with a potential client at Otero which had to be conducted over four short calls, because the first three calls were free ten minute calls that automatically cut off. The client paid for the fourth call, which cut off before the intake could be completed. This made it difficult to maintain a conversation, caused confusion, and impeded the law clerk’s ability to ask the client a full range of questions.

➔ The practice of dividing the 520 monthly minutes into calls of such short duration that they disrupt attorney-client communication was confirmed by ICE Assistant Field Officer Director Gabriel Valdez in a written affidavit filed in Torres v. DHS stating that as of April 2020 at the Adelanto facility, the 520 free minutes were provided as a maximum of 13 calls per week, with each call permitted to last no longer than 10 minutes. Legal service providers at Adelanto also confirm that these free minutes are provided only on

  10

 the phones in the common spaces of the Adelanto facilities, where attorney-client confidentiality is not protected.

b) The Virtual Attorney Visitation (VAV) program is severely compromised in its utility by restrictions on usage and technology problems, and in certain facilities does not even appear to be operational.

ICE describes in its Access Memo that the VAV program was expanded from five to nine facilities in Fiscal Year 2020, allowing legal representatives to meet with their clients through video technology in private rooms or booths to ensure confidentiality of communications. ICE posts a list of the facilities it claims are VAV-enabled here.

Many of our legal service teams had never heard of the VAV program until reviewing the ICE Access Memo, which speaks to the extent to which it can be utilized in practice. Included in ICE’s list of VAV-enabled facilities are three facilities where SPLC currently provides services—the Folkston ICE Processing Center, the LaSalle ICE Processing Center, and the Stewart Detention Center. Yet SPLC’s legal teams are entirely unaware of any VAV programs having been accessible at any of these three facilities in Fiscal Year 2020. While some VTC capacity was present at these facilities using Skype, they do not appear to have been part of the VAV program which is largely conducted using Teams and WebEx, according to the Access Memo. Further, the number of confidential VTC rooms in use at these facilities was dismally low. In the Stewart Detention Center, for example, which can detain up to 2,040 people, there are only two VTC rooms, neither of which are confidential.

Another facility on ICE’s list of VAV-enabled facilities is the Otay Mesa Detention Center, where NIJC provides legal services. Yet NIJC’s attorneys who represent individuals at Otay Mesa through a program focused on ensuring legal representation for LGBTQI individuals have found that there is no way for NIJC to schedule legal calls or VTC sessions for free, through the VAV or any other program. For one current NIJC client, the legal team must provide funds to the client’s commissary to be able to speak with them, and even then the calls cut off every ten minutes.

The ICE website describes the VAV program as providing detained individuals access to their attorneys in a “timely and efficient manner.” Yet at the Boone County Jail, one of the listed VAV-enabled facilities, NIJC’s clients report that there are very limited available hours for attorneys to call through the VAV program, and they must be requested well in advance. On one occasion, for example, an NIJC attorney called to ask for a VAV session in the ensuing 48 hours and was told none were available. Instead, the facility staff directed the attorney to the iwebvisit.com website where she could “purchase confidential visits” at $7.75 per 15-minute interval. Boone strictly limits the availability of free confidential VAV calls, and charges for calls

 11

 occurring during many slots in normal business hours. Given the limited availability that Boone provides for free calls on the VAV platform, NIJC has had to pay these fees in order to communicate with clients. Additionally, the quality of the videoconferences on the platform used by Boone County Jail is poor, and NIJC attorneys and advocates struggle to hear clients. Finally, the process for adding third-party interpreters through Boone’s system is extremely onerous, which raises serious concerns about accessibility for speakers of diverse languages. Third party interpreters are unable to join calls unless they go through a registration and clearance process with the jail and like attorneys, must also pay fees for 15-minute intervals if the call takes place during certain hours.

III. ICE’s stated increased coordination with Enforcement and Removal Operations (ERO) to address issues with access to legal counsel has not been communicated to legal service providers.

ICE notes in its Access Memo that it has designated Legal Access Points of Contact (LA-POC) in field offices, who are intended to “work with the ICE ERO Legal Access Team at headquarters to address legal access-related issues and to implement practices that enhance noncitizen access to legal resources and representation.” Among the four organizations authoring this memo, none of our legal service teams reported knowing how to access these designated points of contact or had experienced them resolving concerns or issues. For many of us, the Access Memo was in fact the first time we had even heard of LA-POCs, which is fairly remarkable given that all four of our organizations either provide large quantities of legal services to detained individuals or represent other organizations that do.

***

Meaningful and prompt access to confidential communication with counsel is literally a life and death matter for individuals who are in ICE detention. Barriers to communication can prevent an individual from being fully prepared for a court hearing that will determine whether they are permanently separated from their loved ones. A lack of confidential space for attorney-client communications can mean that an LGBTQI person may never feel safe to disclose their sexual orientation or gender identity, compromising both their own safety and their ability to present their full claim to asylum or other protection.

ICE has submitted this report, in effect asking Members of Congress to believe that they have been responsive and thoughtful in their approach to ensuring access to counsel, even while legal service providers are forced to seek emergency relief in the federal courts simply to be able to communicate with their detained clients. The ICE Access Memo represents a disingenuous and cavalier approach to a gravely serious topic, and we urge Chairpersons Roybal-Allard and Murphy to hold the agency accountable.

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Previous coverage from “Courtside:”

https://immigrationcourtside.com/2022/03/29/the-gibson-report-03-28-22-compiled-by-elizabeth-gibson-esquire-managing-attorney-nijc-headliners-ice-lies-to-congress-about-attorney-access-bia-flagged-by-11th-for/

You don’t have to be a “legal eagle” to understand that putting “civil” immigration prisons (the “New American Gulag”) in obscure locations like Jena, LA, and elsewhere in the notoriously anti-immigrant Fifth Circuit is, among other illegal objectives, about restricting access to lawyers and running roughshod over due process and fundamental fairness.

But, don’t hold your breath for a day of reckoning for immigration bureaucrats peddling lies, myths, and distortions.

Sadly, accountability for White Nationalist abuses of asylum seekers and other migrants by the Trump regime hasn’t been a priority for either a moribund Congress or the Biden Administration. And, a “New Jim Crow” 5th Circuit loaded with Trump judges isn’t likely to stop abuses of due process as long as they are directed primarily against persons of color. See, e.g., https://www.theguardian.com/law/2021/nov/15/fifth-circuit-court-appeals-most-extreme-us?CMP=Share_iOSApp_Other.

Nevertheless, as the GOP initiative to rewrite the history of racism in America rolls forward, it’s more important than ever to continually document  truth for the day in the future when America develops the communal courage to deal honestly with the past rather than intentionally and spinelessly distorting it.

🇺🇸Due Process Forever!

PWS

04-03-22

⚖️10TH CIR. SAYS TRANSGENDER WOMEN FACE “PATTERN OR PRACTICE OF PERSECUTION” IN HONDURAS — Gonzalez Aguilar v. Garland — Latest Setback For Garland’s “Asylum Deniers’ Club” (A/K/A “BIA”)!👎🏽 “Refugee Roulette” ☠️⚰️  The “Order Of The Day” @ Garland’s Dysfunctional & Unjust DOJ!

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca10-2-1-on-honduras-transgender-women-gonzalez-aguilar-v-garland

Immigration Law

pastedGraphic.png

Daniel M. Kowalski

29 Mar 2022

CA10 (2-1) on Honduras, Transgender Women: Gonzalez Aguilar v. Garland

Gonzalez Aguilar v. Garland

“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”

[Hats off to Nicole Henning, Tania Linares Garcia and Keren Hart Zwick!  And…nota bene…this PFR was filed in 2018!]

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Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!

Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have. 

No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.

He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.

In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!

Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!

The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!

A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along” 

I’m not the only one to express frustration with Garland’s failure to do his job, to prioritize accountability, and to take justice, human lives, and the rule of law seriously! See, e.g., https://www.huffpost.com/entry/merrick-garland-justice-department-contempt-charges-lag-capitol-riot-investigation_n_62427a3ae4b0e44de9b8451f

When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytes  as “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!

🇺🇸Due Process Forever!

PWS

03-30-22

🗽END THE “DOUBLE STANDARD” FOR REFUGEES — All Refugees Must Be Treated With Respect, Dignity, & In Accordance With The International Legal Standards! 

 

Nikolái Ingistov-García
Nikolái Ingistov-García Lecturer in Spanish Language and Latin American Studies at UC Riverside


http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7fe1b555-69d3-499c-b9cc-3deaebd50a26

A glaring double standard on refugees

The portrayal and treatment of Ukrainians fleeing war and of Haitian, Central American and Mexican asylum seekers also fleeing deadly violence could not be more different

By Nikolái Ingistov-García

. . . .

Over the course of that weekend, I watched how the Ukrainian refugee crisis grew day by day. I read that Airbnb was paying for thousands of refugees to stay in their rooms. Thousands of Europeans in dozens of countries opened their doors to Ukrainians. I was encouraged but bothered at the same time. Media outlets all over the world from the left, right and center praised the courage of these refugees, and some reporters called them heroes.

An overwhelming majority of my students in my classes at UCR are Latino. Several of them are refugees from Latin America, and a few are “Dreamers.” I asked if any of them noticed anything with this growing refugee crisis in Eastern Europe, and several were quick to point out the double standard.

A few weeks before Putin’s invasion of Ukraine started, my class watched interviews about the forced sterilization of Latina refugees at an immigration detention center in Georgia. We discussed the Latino children fleeing Honduras, El Salvador and Guatemala who are being held in U.S. Immigration and Custom Enforcement detention centers to this day. The double standard in the me-dia’s portrayal of the Ukrainian refugees in Europe compared with the images of Haitian, Central American and Mexican migrants at the Mexican border was obvious to everyone in my class.

I thought about the tens of thousands of refugees fleeing Ukraine and the tens of thousands of refugees who have had to flee their homes in Central America, Mexico and other parts of Latin America because of wars, dictatorships, gang warfare and cartel terrorism. Refugees and migrants who are uprooted from their homes all go through trauma whether they come from Latinoamérica or Eastern Europe.

The images of people fleeing Ukraine shook me as I remembered my family’s histories from Ukraine and Mexico, with both sides leaving their homelands for a better life.

. . . .

Ukraine and Mexico came together to form my family in the borderland of Los Angeles. My Chicano-Mexican-Russian-Ukrainian border-crossing identity hurts as I watch Putin’s war unfold while more waves of Latin American and, very recently, Ukrainian refugees arrive at the Tijuana-U.S. border. My hope is that out of this tragedy, future refugees that come to the Mexican border, whether they are from Honduras or Ukraine, are treated with equal dignity — which all of them deserve.

Nikolái Ingistov-García is a lecturer in Spanish languageand Latin American Studies at UC Riverside.

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Ukrainian refugees are “courageous heroes.” Meanwhile, equally brave and deserving refugees of color from Haiti, Latin America, and Africa are dehumanized, degraded, and removed to potential death or danger without a thought and in violation of law. 

They are often called by the misnomer “illegal migrants” — or worse! Ironically, however, the refugees arriving at Southern Border, even if not “invited,” are exercising internationally and domestically recognized legal rights to apply for asylum and other legal protections from involuntary return, some mandatory!

Of course, as intelligent humans, they don’t wait in vain or line up for “imaginary invitations” that will never come! We have no viable refugee programs for Haiti, Africa, and Latin America. Indeed, after four years of Trump and one of Biden we barely have any refugee programs anywhere! Even worse, we have immorally and illegally closed legal ports of entry to asylum seekers. So, having left refugees no viable legal avenues for seeking refuge in the U.S., a right guaranteed by both statute and international convention, we dehumanize and degrade them for using the only “self-help” methods available! Talk about chutzpah!  

It’s actually folks like Vice President Harris, Secretary Mayorkas, AG Garland, and his band of scofflaw lawyers at the DOJ who are the “illegals” in this  scenario. The Biden Administration is hardly the first to turn refugee and asylum laws as well as the Due Process and Equal Protection Clauses of our Constitution on their heads.

The Trump regime gloried in violating the law and mistreating refugees simply for the cruelty, racism, and hate involved. Shockingly, with a some exceptions, life-tenured Federal Judges gave them a pass — particularly at the Supremes which developed their own “special double standard” to dehumanize and “Dred Scottify” immigrants of color!

The Biden Administration sweeps their own gross misconduct and racially charged “double standards” under the rug! Under Garland, the DOJ has “gone along to get along” and even disgracefully defended illegal, immoral, and deadly removals without any process at all. In doing so, they have advanced some of the same discredited myths and disingenuous pretexts developed by Miller, Sessions, Barr and the Jim Crow White Nationalist nativists!

The “mainstream media” give excruciatingly detailed coverage of the humanitarian plight of Ukrainian refugees. Meanwhile, the similar humanitarian plight of vulnerable equally deserving refugees of color, like Ukrainians many of them desperate women and children, gets little coverage outside of a few specialized reporters. 

Of course, beyond the rhetoric, the Biden Administration has actually done very little to help even Ukrainian refugees beyond hollow expressions of sympathy and using them as “props” in the “war of words” with Putin. Leadership is a combination of rhetoric backed with action! 

Our refugee and asylum systems are in shambles, without the leadership and expertise in place to respond to either predictable refugee flows or humanitarian catastrophes in a practical and effective way. That needs to end! But, unfortunately, its hard to see the current, spineless (non) leadership from Harris, Mayorkas, Garland, and others in this Administration getting the job done!

🇺🇸Due Process Forever!

PWS

03-21-22

🤯TITLE 42 MADNESS: Even As DC Circuit Bars Returns To Persecution &/Or Torture, Trump Federal Judge In Texas Abuses Children!🤮☠️ — Circuit Findings Of Illegal Returns To “Stomach-Churning” Conditions & No Evidence Supporting Bogus Title 42 Orders Fails To Motivate “Robed Ones” To Reinstate The Rule Of Law! — Meanwhile, In Texas, Rogue Righty Judge Takes Over Immigration, Targets Vulnerable Kids For Rape, Torture, Death!

“Floaters”
Trump Judge Mark T. Pittman has a very explicit vision of the future for brown-skinned children seeking protection from “White Nationalist Nation.”
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 DC Circuit Decision:

https://www.cadc.uscourts.gov/internet/opinions.nsf/F6289C9DDB487716852587FB00546E14/$file/21-5200-1937710.pdf

Here’s the decision by Trump scofflaw U.S. District Judge Mark T. Pittman:

https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf

Here’s a link to “Instant Twitter Analysis” by Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council:

Aaron Reichlin-Melnick
Aaron Reichlin-Melnick
Policy Counsel
American Immigration Council
Photo: Twitter

https://twitter.com/reichlinmelnick/status/1499891832569876481?s=21

ThreadOpen appSee new TweetsConversationAaron Reichlin-Melnick@ReichlinMelnick🚨Absolute madness. The same day the DC Circuit rules that families can’t be expelled under Title 42 to places they will be persecuted, a federal judge in Texas just overruled the CDC and ordered the Biden administration to expel unaccompanied children. https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf…

. . . .

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Read the rest of Aaron’s feed at the link.

Although the DC Circuit basically confirmed that the evidence produced by plaintiffs showed illegal returns to death and that there was little, if any, support for the draconian Title 42 exclusion order, the relief granted was unacceptably narrow. The order merely directed the Administration to cease returning individuals to countries where they would be persecuted or tortured.

That order is weak because:

  • It doesn’t specify any particular fair procedure that must be followed by DHS in determining who faces persecution or torture. That appears to leave open the possibility of DHS employing bogus “summary determinations by enforcement agents” rather than using Asylum Officers and having cases referred to Immigration Courts.
  • There are no limits on the Government’s ability to detain individuals and/or return them to other countries.
  • The standard for so-called “withholding of removal” to persecution is “more likely than not” as opposed to the more generous “well-founded fear” or “reasonable possibility” standard for asylum (although individuals should be able to invoke the regulatory “presumption of future persecution” arising out of past persecution).
  • Even if granted, withholding of removal does not provide individuals with “durable legal status” nor does it allow them to access the asylum system, from which they apparently would remain barred under Title 42.

Judge Mark T. Pittman of the Northern District of Texas is a Trump appointee with strong ties to the Federalist Society and a very loose grasp on domestic and international laws and procedures for protecting children.

It’s interesting, if disheartening, to compare the “overt wishy-washiness” of the DC Circuit Judges who were timidly, “sort of” trying to protect at least some minimal legal and human rights with the “in your face,” overtly anti-immigrant, arrogant tone and ridiculous self-assuredness with which activist righty District Judge Mark Pittman advanced his absurdist notion that the White Nationalist agenda of “protecting” America from the “non-threat” of brown-skinned children merited his simultaneous assumption of the roles of President, Secretary of DHS, Attorney General, and for a good measure, Congress.

Obviously, the “judicial restraint,” supposedly a hallmark of modern conservatism, was just a “smoke screen” for the GOP’s activist anti-social, anti-immigrant, racially charged agenda. That’s not news to many of us, although it seems to have gone “over the head” of many in the Biden Administration and many Dems on the Hill.

It shows once again why “Team Garland’s” indolent, often uninformed, and floundering approach to immigrant justice under law is being steamrolled by Trump holdovers and crusading right-wing Federal Judges. And, you wonder why Dems can’t figure out what they stand for and what their “line in the sand” is!

Meanwhile, back at the ranch, Garland and other weak-kneed Biden officials can’t decide how much of the leftover “Miller Lite” anti-asylum, anti-humanitarian, anti-due-process policy they want to retain and defend and how much effort, if any, they want to put into re-establishing human rights and the rule of law.

One observation: After more than one-year in office, the Biden Administration is no closer to having an orderly, functional, due-process-oriented asylum system in place and ready for the border than they were on January 20, 2021! The expert Asylum Officers and qualified Immigration Judges who are necessary to operate such a system are still few and far between, and the program to facilitate legal assistance for those seeking legal protection at the border is all but non-existent.

🇺🇸Due Process Forever!

PWS

03-05-22

PROFESSOR JENNIFER CHACON’S BRENNAN ESSAY — RULE OF LAW RUSE — The Gratuitous Cruelty, Dehumanization, & Demonization Is The Point! — “Courts have played an essen­tial role in shor­ing up the dehu­man­iz­ing narrat­ives that enable our nation’s harsh enforce­ment prac­tices.”

 

 

Professor Jennifer M. Chacon
Professor Jennifer M. Chacon
UC Berkley Law

 

 

https://lawprofessors.typepad.com/immigration/2022/02/immigration-article-of-the-day-the-dehumanizing-work-of-immigration-law-by-jennifer-m-chac%C3%B3n.html

Professor and ImmigrationProf Blog Principal Kit Johnson reports:

Tuesday, February 22, 2022

Immigration Article of the Day: The Dehumanizing Work of Immigration Law by Jennifer M. Chacón

By Immigration Prof

Share

The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punit­ive excess that has come to define Amer­ica’s crim­inal legal system.”

In her article, Chacón acknowledges that “our immig­ra­tion laws are excep­tion­ally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immig­rate is just not true.” Moreover, “our coun­try has not always honored its own legal processes when immig­rants are doing things ‘the right way.’” And, for those “long-time lawful perman­ent resid­ents who have contact with the crim­inal legal system are often denied the chance to do things ‘the right way.’”

“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sunder­ing of famil­ies and communit­ies that would, in other circumstances, seem unthink­able.”

-KitJ

February 22, 2022 in Data and Research, Law Review Articles & Essays | Permalink | Comments (0)

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

Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!

But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.

But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.

Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!

Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.

Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” —  preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!

Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!

Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”

During his confirm­a­tion hear­ing to be attor­ney general, when asked about the Trump admin­is­tra­tion’s policy of separ­at­ing chil­dren from their parents at the U.S.–Mex­ico border, Merrick Garland repu­di­ated the policy, stat­ing “I can’t imagine anything worse.”

Yet, now that he is confirmed, Attor­ney General Garland presides over an agency that repres­ents the U.S. govern­ment in court arguing every day that parents should be separ­ated from their chil­dren, broth­ers from sisters, grand­chil­dren from grand­par­ents.

Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.” 

Star Chamber Justice
“Justice”
Star Chamber
Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”

Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮

And, there will be no true racial justice in America without justice for immigrants!

🇺🇸 Due Process Forever!

PWS

02-23-22            

🚂🛤GARLAND’S DEPORTATION RAILROAD KEEPS ROLLIN’ — WITH A LITTLE HELP FROM TWO GOP JUDGES IN 4TH — Mejia-Velasquez v. Garland — After 6 Years, 3 Flawed Tribunals, A Woman Claiming Politically-Motivated Gang Abuse In Honduras Sent Packing Back To Danger & Corruption Without A Merits Hearing!

 

Train
Train
Dennis Adams, Federal Highway Administration; levels adjustment applied by Hohum
Public domain. — Garland’s Deportation Railway retains most of his predecessors’ engineers, conductors, and crew.  It’s often slow, unreliable, erratic, and subject to arbitrary unannounced schedule changes. It continues to bypass “Due Processville” and “Fundamental Fairness City.”

 

https://www.ca4.uscourts.gov/opinions/201192.P.pdf

Mejia-Velasquez v. Garland, 4th Cir., 02-16-22, published

PANEL: NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.

OPINION BY: Judge Niemeyer

DISSENT: Judge Motz

KEY QUOTE FROM DISSENT:

Under the current immigration statutes, DHS has good reason to require applicants for relief from removal to submit fingerprints and other biometrics. But before DHS does so, it must first comply with specified notice obligations. Where, as here, DHS fails to do so, I would not fault the applicant. As the Supreme Court explained in Niz-Chavez, “[i]f men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” 141 S. Ct. at 1486.

I respectfully dissent.

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

The IJ and the BIA relied on a wrong BIA precedent. The 4th Circuit majority judges recognized its incorrectness, but took OIL’s invitation to fashion another rationale for denying this asylum applicant a hearing on the merits of her life or death claim. While the respondent was represented by counsel, the disputed “warnings” and dialogue relating to the missing biometrics were not translated into Spanish, the only language she understood.

While this case was pending, USCIS finally delivered the long and inexplicably delayed biometrics appointment letter to the respondent. But, that made no difference to a group of judges anxious to railroad her back to Honduras (one of the most dangerous and thoroughly corrupt countries in the hemisphere) without a meaningful chance to be heard.

With a dose of macabre ☠️ irony, the 4th Circuit’s tone-deaf decision came just as the US was requesting extradition of former Honduran President, and Obama and Trump Administrations’ buddy, Juan Orlando Hernández on drug trafficking charges! https://lawprofessors.typepad.com/immigration/2022/02/violence-in-honduras-tied-to-ex-president-now-arrested.html

Of all the Federal Judges who looked at this case over the years, only Judge Motz was interested in providing the respondent a due process hearing on her life-determining claim. The rest evidently were more fixated on creating reasons for NOT hearing her case. With the same amount of judicial and litigation effort, likely less, the respondent probably could have received a due process hearing on the merits of her claim. Additionally, there would have been consequences for the BIA’s defective “good enough for government work” precedent.

Of course, like Garland, none of the exalted judges involved in this disgraceful dereliction of duty have actually represented an asylum applicant in Immigration Court and had to deal with the confusing, convoluted, backlogged, and often notoriously screwed up DHS/EOIR biometrics process. See, e.g., “USCIS Biometrics Appointment Backlog,” https://www.stilt.com/blog/2021/02/biometrics-appointment-backlog/.

I suspect that folks contesting a parking ticket get more consideration in our system than this asylum applicant got from Garland’s unfair and dysfunctional Immigration Courts and the OIL lawyers who defend these mis-handled cases. And, in the world of “refugee roulette,” where human lives are treated like lottery tickets, a different Circuit panel of judges might have joined Judge Motz in getting it right.

The problem starts with EOIR — tribunals that receive deference without earning it through expertise, quality scholarship, and prioritizing due process, fundamental fairness, and best practices. It’s aggravated and multiplied by Garland — an Attorney General indifferent to injustice and the trail of broken lives and dashed hopes left in its wake. And, it’s aided, abetted, and enabled by judges like the panel majority here, who can’t be troubled with the hard work of understanding the consequences of their dilatory approach and demanding fair, competent, and reasonable expert judging from EOIR.

As several of my colleagues have said about the broken, dysfunctional, unfair Immigration Court system, the haphazard review by some Circuit Courts, and the disturbing systemic lack of judicial courage when it comes to fairly applying the Due Process Clause of our Constitution to migrants of color: “The cruelty is the point.”

It’s also worthy of note that the failure of all the Federal Judges, save Judge  Motz, to make any meaningful inquiry into the respondent’s clearly expressed fear of return to Honduras appears to violate mandatory requirements for withholding of removal under the INA and international conventions. Perhaps that’s not surprising as Federal Judges have allowed Garland, Mayorkas, and their predecessors to use the transparent pretext of “Title 42” to systemically violate the legal and human rights of refugees at our borders — every day!

It’s also worth putting into context the Biden Administration’s continuing pontification about the human rights of Ughyurs, Afghans, women, and other persecuted minorities, as well as their professed commitment to racial justice in the U.S., which has not been matched by actions. Indeed, the Biden Administration’s actual approach to human rights looks much more like “Miller Lite Time” than it does a courageous, competent, and fair reinstitution of the rule of law!

According to recent reports, many of the Ughyurs and Afghans who were fortunate enough to reach the U.S. and avoid arbitrary “turn backs” at our borders, are now mired in the endless, mindless Mayorkas/Garland bureaucracy that masquerades as an “asylum system” — subject to long waits, missing work authorizations, and sometimes arbitrary and secretive “denials” blasted by human rights advocates. In a functional system these would be the “low hanging fruit” that could rapidly be removed from limbo and given the ability to fully function in our society. But, not in the “Amateur Night at the Bijou” atmosphere fostered by Mayorkas and Garland.

The “strict enforcement” of regulatory requirements on the respondent in this case stands in remarkable contrast with the lackadaisical “good enough for government work” approach of Garland’s BIA and DOJ to the Government’s intentional non-compliance with the statutory requirements for a Notice to Appear (“NTA”).  See, e.g., https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/ Talk about “double standards” at Garland’s DOJ!

🇺🇸 Due Process Forever!

PWS

02-16-22

🔮PROPHETS: MORE THAN SEVEN MONTHS AGO, “SIR JEFFREY”🛡 & I SAID IT WOULD TAKE MORE THAN HOLLOW PROMISES IN AN E.O. TO BRING JUSTICE  FOR VICTIMS OF GENDER VIOLENCE! — Sadly, We Were “Right On” As This Timely Lament From CGRS Shows!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

The problem is very obvious: The “practical scholars” and widely respected international experts in asylum law who should be drafting gender-based regs and issuing precedents as appellate judges @ EOIR remain “frozen out” by Garland and the Biden Administration. Meanwhile, those who helped carry out the Miller/Sessions misogynistic policies of eradicating asylum protection for women of color not only remain on the bench but still empowered by Garland to issue controlling interpretations of asylum law. 

https://cgrs.uchastings.edu/sites/default/files/Deadly%20Inertia%20-%20PSG%20Regs%20Guide_Feb.%202022.pdf

Deadly Inertia: Needless Delay of “Particular Social Group” Regulations Puts Asylum Seekers at Risk

February 10, 2022

On February 2, 2021, President Biden issued an executive order (“EO”) which directed executive branch agencies to review and then take action on numerous aspects of our shattered asylum system.1 Of particular interest to the Center for Gender & Refugee Studies (CGRS), and many asylum seekers, legal experts, and allies, was a provision ordering the Departments of Justice and Homeland Security to conduct a comprehensive examination of whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule on the meaning of “particular social group,” as that term is derived from international law (emphasis added).2

The deadlines set by the President – August 1, 2021 for the examination of current law on domestic violence and gang claims, and October 30, 2021 for the proposed regulations on particular social group – have come and gone. We are concerned that the administration has offered no indication of its progress on what should be a simple task, given that international law and authoritative international standards on particular social group are clear.3

This reference guide explains why regulations on particular social group are important, why this legal issue has become so contentious, and why there is no good reason for the delay in proposing regulations. We point out that there is a clear path forward for the United States to realign its treatment of asylum claims with established international standards, which is precisely what the EO mandates.

Why are regulations on particular social group important?

While “particular social group” may sound like an arcane topic in the notoriously complex area of asylum law, there is a reason it merited the President’s attention in an EO signed just two weeks after he took office.4 Persecution on the basis of membership in a particular social group is one of only five grounds for refugee status in U.S. and international law and has become the most hotly contested asylum law issue in the United States.

Why has particular social group jurisprudence become so contentious in the United States?

First, the phrase “particular social group” is less intuitively clear than the other grounds for asylum of race, religion, nationality, and political opinion. This ground is understood to reflect a desire on the part of the treaty drafters – and U.S. legislators who incorporated the international refugee definition into our own immigration law – to protect those who don’t fit neatly into the other four categories, and to allow asylum protection to evolve in line with our understanding of human rights. Such refugees might include, for example, women fleeing domestic violence, or LGBTQ+ people persecuted because they do not conform to social norms regarding sexual orientation or gender identity. They might be people fleeing violent retaliation by criminal gangs because they

200 McAllister Street | San Francisco, CA 94102 | http://cgrs.uchastings.edu

reported a crime or testified against a gang member. Or they might simply be related to someone who has defied a gang, and that alone makes them a target.

These people are clearly facing enormous harm, and equally clearly belong to a particular social group under a correct interpretation of the law. 5 But merely belonging to a particular social group does not result in being granted asylum. Only if a person meets all the other elements of the refugee definition, including the heavy burden of showing their group membership is a central reason they will be targeted, will they obtain protection in the United States.

Second, some policymakers and adjudicators fear that if particular social group claims qualify for protection, the “floodgates” will open. The Department of Justice’s Board of Immigration Appeals (BIA) established the legal test for particular social group in 1985 in Matter of Acosta (see below).6 But beginning in 2006, the BIA altered the Acosta test by imposing additional requirements that are nearly impossible to meet.7 The result is that with only one exception, no new particular social groups from any country, no matter how defined, have been accepted in a published BIA decision since that time.

But there is no evidence to support the “floodgates” concern. Decades ago, when women who fled female genital cutting/mutilation were first recognized as a particular social group, some people argued that the United States would be inundated with such claims.8 Those fears never materialized. History shows, and the governments of both the United States and Canada acknowledged at the time, that acceptance of social group claims does not lead to a skyrocketing number of applicants.9

Third, asylum law, including the legal interpretation of particular social group, has been politicized. As part of an overtly anti-immigrant agenda, some politicians have seized upon the floodgates myth to promote increasingly restrictive policies and legal interpretations that depart from international standards. Politically oriented interference with asylum law reached new lows under the previous administration, most notably in 2018 when former Attorney General Sessions overruled his own BIA to issue his unconscionable decision in Matter of A-B-.10

Matter of A-B- was so widely reviled and justly condemned that all major Democratic candidates seeking their party’s presidential nomination in the last election promised to reverse the decision. Doing so was part of candidate Biden’s campaign platform.11 As President he made good on this promise by including the legal questions of domestic violence, gang brutality, and particular social group in the February 2021 EO.

Furthermore, and very much to his credit, Attorney General Garland granted CGRS’s request as counsel to vacate Matter of A-B- in June 2021.12 The law now stands as it did before Sessions’ unlawful interference, with the key precedent case Matter of A-R-C-G-13 recognizing a certain defined particular social group that may provide the basis for asylum for some domestic violence survivors.

However, as explained above, the problem goes beyond Sessions’ decision in Matter of A-B- and stretches back at least as far as 2006, when the BIA began to encumber particular social group claims with additional legal hurdles. As correctly noted in the EO, it is necessary to assess whether U.S. law concerning not only domestic and gang violence claims, but all claims based on particular

2

social group, is consistent with international law. Fortunately there is ample international guidance, which is itself largely based on Acosta, on this exact question.

So why the delay in proposing new regulations?

We can think of no good reason for the agencies’ delay in proposing new regulations on particular social group. From the perspective of both binding international law and authoritative international standards, each of which are named as the framework for particular social group regulations in the EO, the legal analysis is not at all complicated.

To begin with, this is not a new area of the law. The Convention Relating to the Status of Refugees, the source of the refugee definition in which the phrase appears, was drafted in 1951. Our domestic law followed suit in the 1980 Refugee Act. As noted above, the key BIA precedent case interpreting particular social group, Matter of Acosta, was decided in 1985.14 The UN Refugee Agency’s (UNHCR) guidelines on particular social group, which adopt Matter of Acosta, were issued 20 years ago, in 2002.15

Making the job of proposing regulations even simpler, international guidance is clear. It is critical to note that as an inter-governmental organization, UNHCR routinely takes the concerns of governments, including the United States, into account in crafting its legal advice. UNHCR’s guidelines on particular social group were drafted only after a thorough review of State practice, including U.S. law, and an extensive process of external expert consultations with government officials and judges in their personal capacities, academics, and practitioners.16 The consultations process began with a discussion paper on particular social group drafted by a leading U.S. scholar who had previously served as Immigration and Naturalization Service General Counsel.17

How should the United States interpret particular social group to be consistent with international law?

The United States should adopt the “immutability” standard that the BIA set forth in Matter of Acosta, with an alternative – not additional – test of “social perception” which was initially developed by courts in Australia.18 The Acosta test rests on the existence of immutable or fundamental characteristics such as gender to determine whether there is a particular social group. What must be discarded are the BIA’s extraneous requirements of “particularity” and “social distinction.” They have no basis in international law, are not consistent with international standards, are not compelled by the text of the statute, and are not coherent or internally logical. They have themselves spawned an enormous number of confused and confusing cases, including at the federal courts of appeals level, as judges attempt to apply them to real world cases.19

Key Democratic members of Congress with deep knowledge on refugee issues have taken this position, which is consistent with UNHCR’s views. The Refugee Protection Act of 2019, for example, reflects international guidance in its clarification of particular social group.20 Then-Senator Kamala Harris was one of the bill’s original cosponsors.

Additionally, in response to the EO, U.S. and international legal experts have explained that Matter of Acosta provided a workable test, that the BIA’s additional requirements distorted U.S. law in violation

3

of international standards, and that a return to Acosta would be consistent with international standards and offer an interpretation most faithful to the statutory text.21

Why does it matter?

Lives hang in the balance. Women who have survived domestic violence, and all other asylum applicants who must rely on the particular social group ground, are stuck on a deeply unfair playing field. Existing law, even with the vacatur of Matter of A-B-, gives far too much leeway for judges to say no to valid claims. For people wrongly denied protection, deportation can be a death sentence.22

We are concerned that the delay in proposing particular social group regulations reflects an unwillingness on the part of some key actors within the administration to accept that the United States is bound by international law and should realign itself with international standards. The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

1 Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Feb. 2, 2021, 86 Fed. Reg. 8267 (Feb. 5, 2021).

3 Instead, on the one-year anniversary of the EO, USCIS Director Ur Jaddou held a virtual briefing on USCIS’s progress on this and three other immigration-related EOs, but provided no substantive details.

4 The EO otherwise encompasses the enormous operational, logistical, foreign policy, development, and other challenges required to create a comprehensive regional framework to address root causes, manage migration throughout North and Central America, and provide safe and orderly processing of asylum seekers at the U.S. border.

5 For example, when Harold Koh, a senior State Department advisor, resigned in October 2021 in protest over the expulsion of Haitian and other asylum seekers, he wrote: “Persons targeted by Haitian gangs could easily have asylum claims as persons with well-founded fears of persecution because of their membership in a ‘particular social group’ for purposes of the Refugee Convention and its implementing statute. Indeed, this is precisely the issue that faces the interagency group on joint DOJ/DHS rulemaking pursuant to President Biden’s February 2, 2021 Executive Order, which directed examination of whether

 2 EO, Sec. 4(c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall:

(i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in

8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

 4

 the United States is providing appropriate asylum protection for those fleeing domestic or gang violence in a manner consistent with international standards.’” See https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000.

6 19 I&N Dec. 211 (BIA 1985).

7 Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, May 28,

2021, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. 8 Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

9 Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 132-133 (2007), available at: https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1560&context=faculty_scholarship.

10 27 I&N Dec. 316 (A.G. 2018). The applicant was a domestic violence survivor whose asylum claim based on particular social group had been granted by the BIA.

11 “The Trump Administration has … drastically restrict[ed] access to asylum in the U.S., including … attempting to prevent victims of gang and domestic violence from receiving asylum [.] Biden will end these policies [.]” See https://joebiden.com/immigration/.

12 28 I&N Dec. 307 (A.G. 2021). He also vacated other problematic decisions that touched on particular social group and gender claims. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021); Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021).

13 26 I&N Dec. 388 (BIA 2014). 14 19 I&N Dec. 211 (BIA 1985).

15 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, available at: https://www.refworld.org/docid/3d36f23f4.html.

16 UNHCR, Global Consultations on International Protection, Update Oct. 2001, available at: https://www.unhcr.org/3b83c8e74.pdf.

17 T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group’”, in Refugee Protection in International Law: UNHCR’s Global Consultations on International

Protection (Feller, Türk and Nicholson, eds., 2003), available at: https://www.refworld.org/docid/470a33b30.html.

18 This is the approach recommended by UNHCR, n.15 above.

19 Legomsky and Musalo, Asylum and the Three Little Words that Can Spell Life or Death, n. 7 above, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. See also, Sabrineh Ardalan and Deborah Anker, Re-Setting Gender-Based Asylum Law, Harvard Law Review Blog, Dec. 30, 2021, available at: https://blog.harvardlawreview.org/re-setting-gender-based-asylum-law/.

21 Scholars letter to Attorney General Garland and DHS Secretary Mayorkas, June 16, 2021, available at: https://cgrs.uchastings.edu/sites/default/files/2021.06.16_PSG%20Scholars%20Letter.pdf. See also, letter to Attorney General Garland and DHS Secretary Mayorkas, May 27, 2021, signed by 100 legal scholars discussing the “state protection” element of the proposed regulations, available at: https://cgrs.uchastings.edu/sites/default/files/Law%20Scholars%20State%20Protection%20Letter%205.27.21%20%28FINAL%2 9.pdf.

22 When Deportation Is a Death Sentence, Sarah Stillman, The New Yorker, January 8, 2018, available at: https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.

             20 The Refugee Protection Act of 2019, Sec. 101(a)(C)(iii) reads: “the term ‘particular social group’ means, without any additional requirement not listed below, any group whose members—

(I) share—

(aa) a characteristic that is immutable or fundamental to identity, conscience, or the exercise of human rights; or (bb) a past experience or voluntary association that, due to its historical nature, cannot be changed; or

(II) are perceived as a group by society.”

See https://www.congress.gov/bill/116th-congress/senate-bill/2936/text?r=4&s=1#toc- idA272A477BC814410AB2FF0E6C99E522F.

      5

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

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

You can check out what “Sir Jeffrey” and I had to say back in June 2021 here:

https://immigrationcourtside.com/2021/06/22/sir-jeffrey-chase-garlands-first-steps-to-eradicate-misogyny-anti-asylum-bias-eoir-are-totally-insufficient-without-progressive-personnel-changes/

Unfortunately, my commentary then remains largely true today:

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

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!

    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.

    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!

    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.

    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 

    • No regulation can bring decisional integrity and expertise to a body that lacks both!

As the CGRS cogently says at the end of the above posting:

The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

If you follow some of the abysmal anti-asylum, poorly reasoned, sloppy results still coming out of Garland’s BIA and how they are being mindlessly defended by his OIL, you know that a “principled application” of asylum law to protect rather than arbitrarily reject isn’t in the cards! Also, as I have pointed out, even if there were a well written reg on gender based asylum, you can bet that the “Miller Lite Holdover BIA” would come up with intentionally restrictive interpretations that many of the “Trump-era” IJs still packed into EOIR would happily apply to “get to no.” 

You don’t turn a “built and staffed to deny in support of a White Nationalist agenda agency” into a legitimate court system that will insure due process and fair treatment for asylum seekers without replacing judges and bringing in strong courageous progressive leaders.

That’s particularly true at the BIA, where harsh misapplications of asylum law to deny worthy cases has been “baked into the system” for years. And, without positive precedents from expert appellate judges committed to international principles and fair treatment of asylum seekers in the U.S., even a well-drafted reg won’t end “refugee roulette.” 

By this point, it should be clear that the Biden Administration’s intertwined commitments to racial justice and immigrant justice were campaign slogans, and not much more. So, it will be up to advocates in the NDPA to continue the “relentless fight” to force an unwilling Administration and a “contentedly dysfunctional” DOJ that sees equal justice and due process as “below the radar screen” to live up to the fundamental promises of American democracy that they actively betray every day!

🇺🇸Due Process Forever!

PWS

02-13-22