Border Enforcement – Page 20 – immigrationcourtside.com

☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts — How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

IMMIGRANT LEGAL DEFENSE

FOR IMMEDIATE RELEASE January 10, 2022

Contacts:

Immigrant Legal Defense

Ilyce Shugall, ilyce@ild.org, (415) 758-3765

Siobhan Waldron, siobhan@ild.org, (510) 479-0972

Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980

Omar Ameen Files Federal Lawsuit Seeking His Release

After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism

San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.

After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.

Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.

“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”

“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.

“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”

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Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.

The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.

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Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.

To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).

“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/jan-11-2022-sc-oral-arg-previews-detention-bond-jurisdiction

One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.

It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.

In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.

He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.

But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.

It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”

Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.

Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️

🇺🇸Due Process Forever!

PWS

01-11-22

☠️⚰️BORDER DEATHS: Opaqueness & Lack Of Accountability Common Threads According To New Reports!

https://www.nytimes.com/2022/01/09/us/politics/border-patrol-migrant-deaths.html

Eileen Sullivan reports in The NY Times:

By Eileen Sullivan

Jan. 9, 2022, 5:00 a.m. ET

WASHINGTON — Angie Simms had been searching for her 25-year-old son for a week, filing a missing persons report and calling anyone who might have seen him, when the call came last August. Her son, Erik A. Molix, was in a hospital in El Paso, Texas, where he was strapped to his bed, on a ventilator and in a medically induced coma.

Mr. Molix had suffered head trauma after the S.U.V. he was driving with nine undocumented immigrants inside rolled over near Las Cruces, N.M., while Border Patrol agents pursued him at speeds of up to 73 miles per hour. He died Aug. 15, nearly two weeks after the crash; even by then, no one from the Border Patrol or any other law enforcement or government agency had contacted his family.

The number of migrants crossing the border illegally has soared, with the Border Patrol recording the highest number of encounters in more than six decades in the fiscal year that ended Sept. 30. With the surge has come an increase in deaths and injuries from high-speed chases by the Border Patrol, a trend that Customs and Border Protection, which oversees the Border Patrol, attributes to a rise in brazen smugglers trying to flee its agents.

From 2010 to 2019, high-speed chases by the Border Patrol resulted in an average of 3.5 deaths a year, according to the American Civil Liberties Union. In 2020, there were 14 such deaths; in 2021, there were 21, the last on Christmas.

The agency recorded more than 700 “use of force” incidents on or near the southern border in the last fiscal year. Customs and Border Protection does not disclose how many of those ended in death, or how many high-speed chases take place each year.

Crossing the border without documentation or helping people do so is full of risk regardless of the circumstances, and stopping such crossings — and the criminal activity of smugglers — is central to the Border Patrol’s job. But the rising deaths raise questions about how far the agency should go with pursuits of smugglers and migrants, and when and how agents should engage in high-speed chases.

Customs and Border Protection has yet to provide Ms. Simms, a fifth-grade teacher in San Diego, with an explanation of what happened to her son. She saw a news release it issued two weeks after the crash; officials say it is not the agency’s responsibility to explain. She said she understood that officials suspected her son was involved in illegal activity, transporting undocumented immigrants.

“But that doesn’t mean you have to die for it,” she said.

Customs and Border Protection, which is part of the Department of Homeland Security, has a policy stating that agents and officers can conduct high-speed chases when they determine “that the law enforcement benefit and need for emergency driving outweighs the immediate and potential danger created by such emergency driving.” The A.C.L.U. argues that the policy, which the agency publicly disclosed for the first time last month, gives agents too much discretion in determining the risk to public safety.

In a statement to The New York Times, Alejandro N. Mayorkas, the secretary of homeland security, said that while “C.B.P. agents and officers risk their lives every day to keep our communities safe,” the Homeland Security Department “owes the public the fair, objective and transparent investigation of use-of-force incidents to ensure that our highest standards are maintained and enforced.”

But previously unreported documents and details of the crash that killed Mr. Molix shed light on what critics say is a troubling pattern in which the Border Patrol keeps its operations opaque, despite the rising human toll of aggressive enforcement actions.

. . . .

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ACLU of Texas Released the following related fact sheet:

https://www.aclutx.org/en/fact-sheet-deadly-trend-border-patrol-vehicle-pursuits

FACT SHEET: THE DEADLY TREND OF BORDER PATROL VEHICLE PURSUITS

Vehicle pursuits may make for exciting movie scenes and reality TV, but in real life, police chases are dangerous and often deadly. Yet the United States Border Patrol, the largest law enforcement agency in the country, increasingly engages in vehicle pursuits that result in mounting injuries and deaths. The agency operates with almost no transparency. This culture of impunity puts lives and communities at risk of grave harm each time a chase occurs.

The ACLU of Texas and ACLU of New Mexico partnered to produce the following fact sheet on the disturbing trend of deadly Border Patrol vehicle pursuits. We analyzed Border Patrol’s recently released vehicle pursuit policy, which reveals troubling discretionary authority given to agents. We also evaluate the department’s deeply flawed oversight and investigation protocols surrounding the pursuits, including the involvement of Border Patrol’s Critical Incident Teams – internal investigative units tasked with protecting the agency from liability and further obscuring the truth behind deadly vehicle pursuits.

Click the link below to download and read the fact sheet.

STAY INFORMED

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RELATED ISSUES

Immigrants’ Rights

DOCUMENTS

PDFBorder Patrol Vehicle Pursuit Policy Fact Sheet

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Read Sullivan’s complete article and get the full version of the ACLU fact sheet at the above links.

ACLU of Texas Attorney Shaw Drake is one of my former Georgetown Law “Refugee Law & Policy” students and a proud member of the New Due Process Army. Proud of you Shaw! 😎It’s what the “new generation of practical scholars” or “applied scholars” does!👍🏼⚖️

🇺🇸Due Process Forever!

PWS

01-10-22

⚖️4TH CIRCUIT: BIA ABUSED DISCRETION, BLEW ANALYSIS, FAILED TO FOLLOW PRECEDENT IN MINDLESS DENIAL OF CONTINUANCE FOR U VISA APPLICANT— Garcia Cabrera v. Garland — A Microcosm Of Garland’s Dysfunctional, Backlog-Building Immigration Courts & His Disgraceful Defense Of The Indefensible In The Article IIIs! — Why Garland’s Inept & Disinterested Performance @ EOIR Is A “Nail In The Coffin” Of American Democracy! ⚰️

Melody Bussey — Melody Busey ESQUIRE
Associate Attorney
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

It should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard
Principal Partners
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

https://www.ca4.uscourts.gov/opinions/201943.P.pdf

Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION: Judge Motz

CONCURRING OPINION; Judge Rushing

KEY QUOTE:

In sum, we hold that the BIA and IJ abused their discretion in denying Garcia

Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.

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Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!

Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels!

Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.

That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in the Biden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!

When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work.

Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPA attorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration!

The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!

While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.

Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!

Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.” Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?

Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).

By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why?

Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?

More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized?

And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!

In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!

That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!

Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.

The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms!

Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions!

🇺🇸Due Process Forever!

PWS

01-08-21

🗽🗽⚖️😇NY TIMES PAYS TRIBUTE TO LEGENDARY FOLK HERO & HUMAN RIGHTS ADVOCATE LISA BRODYAGA (1940-2021)

https://www.nytimes.com/2022/01/04/us/lisa-brodyaga-dead.html

Lisa Brodyaga, Crusading Lawyer for Immigrants’ Rights, Dies at 81

She became a folk hero representing asylum seekers fleeing violence in Central America, setting up shop in the Rio Grande Valley and building a refuge camp.

By Alex Vadukul

Jan. 4, 2022

As leftist revolution and U.S.-backed counter-insurgencies spread through El Salvador and Guatemala in the early 1980s, Central America became awash in bloodshed, sending refugees fleeing to the United States border in hopes of a new life.

When they got there, a combative immigration lawyernamed Lisa Brodyaga, who had only recently passed the Texas bar exam, was waiting.

She was running Proyecto Libertad, a pro bono legal initiative in Texas representing asylum seekers, and by the decade’s end she had helped defend thousands in court. She went on to earn a reputation as a litigious thorn in the side of federal border enforcement agencies for the next 40 years.

“Lisa was a leader in a whole movement of lawyers who decided to approach the representation of immigrants with a civil rights consciousness,” said Susan Gzesh, an immigrant rights expert who teaches at the University of Chicago. “She helped firmly establish that undocumented asylum seekers have rights under our Bill of Rights. She taught immigration lawyers to not be afraid to go into federal courts.”

Ms. Brodyaga (pronounced brod-YA-ga) died on Oct. 28 at her home at a refuge camp she founded near San Benito, Texas. She was 81. The cause was lung cancer, her son, Paul Mockett Jr., said. Her death was not widely reported at the time.

Wearing her hair in a long single braid down her back, Ms. Brodyaga was known to show up at court wearing sandals or cowboy boots. If the federal prosecutors she faced smirked at first, it was because they were uninitiated. By lunch break they were often stepping outside to collect themselves after the verbal barrage Ms. Brodyaga had directed at them in defense of her client.

“I like to be underestimated,” she once told law students at the University of Miami. “I like to have people think, ‘She’s just a hick lawyer.’” She added: “Go ahead, I dare you. Dismiss me.”

In the mid-1980s, as war raged in El Salvador, members of the independent Human Rights Commission of El Salvador were imprisoned by the country’s government, and Ms. Brodyaga traveled there to check on their condition.

. . . .

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Read the complete tribute/obit at the link!

“Go ahead, I dare you. Dismiss me.”

That’s something to which today’s talented, dedicated, grossly under-appreciated NDPA lawyers can relate!

As an elitist who never had to operate “in the trenches of immigration law,” AG Garland obviously takes your and your colleagues’ legitimate demands for long overdue radical EOIR reform, real practical immigration/human rights expertise, and potential judicial and administrative talent “for granted” as he “busies himself” with “more important things” and runs our immigrant justice and asylum systems even more deeply into the ground (a hard concept to grasp after four years of Sessions & Barr — but progressive advocates had better start looking at Garland in a “new Miller Lite” and acting accordingly).

It looks like the only way you are going to get Garland’s attention is to keep taking him and his error-prone, anti-immigrant, Trump-era-holdover BIA “to the cleaners” in Federal Court — in the mold of the late, great, Lisa B!

Many thanks to my good friend and NDPA warrior queen Deb Sanders, who’s cast in that same mold as Lisa, for alerting me to this article!

Here’s a previous Courtside post on Lisa:

https://immigrationcourtside.com/2021/09/28/ndpa-😢-sad-news-gives-gives-all-of-us-a-chance-to-honor-ndpa-warrior-queen-for-a-lifetime-of-unswerving-devotion-to-due-process-equal-justice-for-migrants-s/

🇺🇸Due Process Forever!

PWS

01-05-21

THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!

NEWS

President Biden promised to reform immigration policy. How has that been going?

NPR: President Biden had an ambitious agenda to overhaul the nation’s border policies. But as the end of the year approaches, many of those proposals have been blocked, reversed or simply abandoned.

Biden asks U.S. Supreme Court to hear ‘Remain in Mexico’ case

Reuters: The Biden administration on Wednesday asked the U.S. Supreme Court whether it needed to continue to implement a Trump-era policy that has forced tens of thousands of migrants to wait in Mexico for the resolution of their U.S. asylum cases. See also ‘Remain In Mexico’ Renewal May Bring More Solo Migrant Kids

Hundreds of Afghans denied humanitarian entry into US

AP: Since the U.S. withdrawal, U.S. Citizenship and Immigration Services has received more than 35,000 applications for humanitarian parole, of which it has denied about 470 and conditionally approved more than 140, Victoria Palmer, an agency spokesperson, said this week. See also Months later, Afghan evacuees abroad and at US bases still wait to be resettled.

Mexico Is Detaining More US-Bound Migrants Than Ever

Vice: Authorities in Mexico detained more than a quarter of a million migrants this year, and most of them were from Honduras. See also Mexico disbands makeshift camp with thousands of migrants

“I Hope a Lawyer Will Answer”: Asylum Seekers Risk Deportation in Expedited Process

KQED: Advocates say the current system has more safeguards for migrant families and isn’t placing them in detention facilities, but the accelerated pace still makes it tough for asylum seekers like López to find legal representation.

LITIGATION/CASELAW/RULES/MEMOS

Top Immigration Litigation To Watch In 2022

Law360: Federal courts in 2022 will grapple with immigration law questions ranging from the extent of the president’s authority to set immigration enforcement priorities to federal courts’ ability to review immigration decisions made by the executive branch. Here, Law360 breaks down the cases to watch.

Biden Administration Petitions the High Court, Seeking to End Trump’s “Remain in Mexico” Program

ImmProf: The petition, which asks to review a decision of the Fifth Circuit court of appeals, addresses issues relating to the Migrant Protection Protocols, commonly known as the “Remain in Mexico” program.

Oral Argument and Other Court Operations at the United States Court of Appeals for the Second Circuit

CA2: In light of the recent surge in Covid-19 infections, beginning January 4, 2022 oral arguments will be conducted remotely, by Zoom or teleconference.

Unpub. CA5 Niz-Chavez Remand: Lima-Gonzalez V. Garland

LexisNexis: Lima-Gonzalez v. Garland “Lima-Gonzalez’s NTA did not contain the information required to trigger the stop-time rule. See Niz-Chavez, 141 S. Ct. at 1478-79, 1485; see also § 1229(a)(1)(A)–(G). Neither did any of the subsequent notices of hearing. As a result, the Government has not furnished Lima-Gonzalez with the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct…

Illinois’ law ending immigration detention in 2022 hits snag

WaPo: Three Illinois counties with such federal agreements faced a Jan. 1 deadline to end contracts. While one in downstate Illinois complied last year, two others are involved in a federal lawsuit challenging the law. The case was dismissed last month, but a federal judge on Thursday granted an extension while an appeal is considered. Authorities in McHenry and Kankakee counties now have until Jan. 13.

DOS Proposed Rule to Raise Several Consular Service Fees

AILA: DOS proposed rule which would raise several nonimmigrant visa application processing fees, the fee for the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee. Comments are due 2/28/22. (86 FR 74018, 12/29/21)

Third Delay of Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal

AILA: USCIS and EOIR interim final rule further delaying until 12/31/22 the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20). Comments on the extension of the effective date as well as the possibility of a further extension are due 2/28/22. (86 FR 73615, 12/28/21)

President Revokes Proclamation Suspending Entry of Certain People Who Pose a Risk of Transmitting Omicron Variant

AILA: Effective December 31, 2021, 12:01 am (ET), Presidential Proclamation 10315 was revoked, thus rescinding travel restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. Vaccine requirements remain in effect.

USCIS Extends Flexibility for Responding to Agency Requests

USCIS: In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020.

USCIS Provides Guidance on Expedited EADs for Healthcare Workers

AILA: USCIS stated that healthcare workers with a pending EAD renewal application, Form I-765, and whose EAD expires in 30 days or less or has already expired, can request expedited processing of their EAD applications. Proof of employment will be required.

RESOURCES

AILA: Client Flyer: U-Visa Petitioners – Bona Fide Determination and Employment Authorization

AILA: Practice Alert: DOS Expands Interview Waivers for Certain Nonimmigrant Visas

AILA: Client Flyer: Overview of the Naturalization Process and Basic Requirements

AILA: Practice Alert: Summary of Omicron Presidential Proclamation

AILA: Get the AILA Discount on the Spanish for Lawyers Online Course

AILA: Custody Redetermination Hearings And Material Change In Circumstances

Asylos Research

Ghana: Accessibility of Dialysis (AFR2020-27)

Nigeria: Mental Health Treatment (AFR2021-09)

Somalia: Situation of ‘Westernised’ Returnees (AFR2021-16)

Mexico: Persecution by and local/national presence of Cartel Jalisco and Familia Michoacana (AME2021-17)

Afghanistan: Treatment of Family Members of Human Rights Activists and Former Government Supporters after the Taliban Take-over (ASI2021-13)

Afghanistan: Availability of Psychiatric Treatment for Returnees with Mental Health Conditions and Treatment of Returnees with Mental Health Conditions by the Taliban (ASI2021-12)

Egypt: Opposing Female Genital Mutilation (FGM), Social Impact, and Availability of State Protection (MEN2021-18)

Egypt: Christians in Egypt & Obtention of Citizenship (MEN2021-17)

EOIR: Appearance Requirements at the New York – Varick Immigration Court (attached)

Project South: Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018

DHS OIG: Continued Reliance on Manual Processing Slowed USCIS’ Benefits Delivery during the COVID-19 Pandemic

US Embassy DR: Minors under 14 present during an Immigrant Visa interview

EVENTS

1/5/22 TPS Roundtable – Strategies for Adjusting TPS Holders in Proceedings Who Have Traveled on AP

1/6/22 Broken Promises: MPP 2.0 and Perspectives from the Ground

1/11/22 Comprehensive Overview of Immigration Law (COIL)

1/14/21 Assisting Citizens of Afghanistan

1/25/22 Adoptions for Orphans and Family Members

1/27/22 Immigration Options and Resources For Victims of Human Trafficking

02/02/22 How to Apply for DOJ Full Accreditation

02/03/22 Webinar Series: Overview of Immigration Consequences of Crimes

02/03/22 Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas

02/04/22 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2022

3/23/22 ASISTA Virtual CLE Conference (Save the Date)

ImmProf

Monday, January 3, 2022

Immigration Reform Is Dead

The Need for Attorneys in Dedicated Docket Cases

Immigration Article of the Day: Constantine’s Legacy: Preserving Empire While Undermining International Law by Craig Mousin

Sunday, January 2, 2022

Immigrant of the Day: Luis Ortiz (Professional Boxer), Cuba

Upcoming Webinar — Broken Promises: MPP 2.0 and Perspectives from the Ground

Saturday, January 1, 2022

U.S. Citizens Placed on Watch List While Taking Part in Caravan Through Mexico

Immigration Article of the Day: Asylum Under Attack by Lindsay Harris

Celebrating Immprof Books & Book Chapters of 2021 * UPDATED *

Americans seeking to renounce their citizenship can’t for now

Friday, December 31, 2021

Celebrating Immprof Achievements in 2021

Happy New Year!

Opinion: Harry Reid’s immigration legacy put politics over country

Thursday, December 30, 2021

Immigration Article of the Day: We Broke It, We Own It: How To Meet The Climate Migration Future by Elizabeth Keyes

Biden Administration Petitions the High Court, Seeking to End Trump’s “Remain in Mexico” Program

JOTWELL Administrative Law Listings feature immigration

The Citizenship Angle of the Ghislaine Maxwell Sex Trafficking Case

Disillusionment and disappointment: Biden’s White House struggles to find its footing on immigration

Wednesday, December 29, 2021

Animated film about Afghanistan refugee in top ten movies list

Silver lining of remote learning for LEP parents

Uyghur Forced Labor Prevention Act

Latino USA: 9/11’s Immigration Legacy

Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018

Tuesday, December 28, 2021

A Proclamation on Revoking Proclamation 10315

Biden’s First Year Brings Modest Changes to Immigration Policy

Immigration Article of the Day, The Unexamined Law of Deportation, by David Hausman

The most neglected story of 2021? Immigration

Monday, December 27, 2021

Afghans in America: WaPo Calls for a Christmas Miracle

Has President Biden kept his immigration promises?

Xenophobia Spills Into Japan’s Covid-Era Debate on Immigration

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

Thanks, Elizabeth!

The problem with “ADR” @ EOIR is chronic! It’s one that Garland seems determined to repeat, despite ample advice to the contrary.

Also, he’s ignored the availability of many “practical experts” on the outside who, if appointed to key EOIR positions, could have helped him solve this without stomping on due process (although, I admit the solution would have been easier in March 2021, when Garland was sworn in as AG, than it is after 9 months of his making it worse — not to mention that his “defiant tone-deafness” has probably “turned off” some of the top-flight talent he needed to “reach out” to). As the KQED article points out:

“But there’s a lot of room for improvement, and I don’t know if the people that are being named to supervise this actually know what’s happening in the trenches.”
- Duh! That’s what all of us have been saying. Truth is, they aren’t the right people, and they don’t know what’s happening. Not by a long shot!
- I also understand why Torres, who’s trying to maintain a relationship with Garland’s “Clueless Crew” is trying to be charitable.
- But, as someone not currently “out there in the trenches,” I don’t have to be so reticent. So, I’ll say what she can’t. This is a totally unacceptable and inexcusable performance from Garland!
Another reason why this program is a massive failure is that, like their ADR-promoting, backlog-building predecessors, Garland & Mayorkas started this misguided and mishandled program without seeking the advice, counsel, and support of the pro bono lawyers who have to staff it to make it work!
- Think of the total absurdity of what Garland is doing here! While a pro bono (or low bono) lawyer is having already prepared cases “orbited” years out on the docket (a process that usually requires re-preparation of the entire case), the phone is ringing off the hook with desperate, perspective new clients given unrealistically expedited hearing dates that should have been used for the cases “orbited” to the end of the docket.
Also, having not practiced privately for many years, Garland appears to have forgotten the Code of Ethics.
- Attorneys are obligated not to take on work (even pro bono work) that they can’t professionally and timely handle.
- Yet, Garland is pushing them to do exactly that! The choice is let folks try to prepare their own cases (literally tantamount to a “death sentence” in many cases); or
- Take on work you can’t handle (a clear ethical violation that could have the same unfavorable result for the client).
There actually are ways of working with outside experts to increase pro bono representation. One of the most promising is the the amazing VIISTA Program created and run by Professor Michele Pistone at Villanova Law to train non-attorney “Accredited Representatives” to handle pro bono asylum cases.
- I have no knowledge that Garland or anyone at EOJ/EOIR has ever reached out to Professor Pistone, despite recommendations that Garland do so.
- Worse yet, Garland has allowed his “EOIR Clown Show” to also create a “new backlog” in the approval process for Accredited Representatives! Talk about clueless, counterproductive mismanagement!
Garland’s mis-handling of EOIR and his new round of “Aimless Docket Reshuffling” raises serious issues about his own performance.
- Whatever happened to Democratic oversight of EOIR in Congress? Why is Garland getting a “free pass” on mismanagement of EOIR, his further undermining of Due Process in Immigration Court, and his disrespectful treatment of the immigration pro bono and low bono bar?

🇺🇸Due Process Forever!

PWS

01-04-22

☹️👎🏽BIDEN’S MUDDLED IMMIGRATION APPROACH WINS FEW FANS, WHILE CONTINUING TO TREAT HUMAN LIVES CALLOUSLY! — Weak AG, Underperforming VP, Fear Of The Right, Dysfunctional Immigration Courts, Failure To “Connect The Dots” Between Immigrant Justice & Racial Justice Appear To Have Led Administration To Treat Re-Establishing The Rule Of Law & Standing Up For Human Rights As “Bogus Policy Option” Rather Than The Legal & Moral Imperative It Is! — Tal Kopan Reports In The SF Chron!

Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/One-year-in-Biden-has-been-slow-to-unwind-Trump-16725642.php

One year in, Biden has been slow to unwind Trump immigration policies

WASHINGTON — As President Biden approaches a year in office, immigration advocates fear he may have learned some lessons from his predecessor, Donald Trump — and not the ones they would have wanted.

Most immigration advocates abhor virtually every policy in the sphere that Trump pursued, but they do give him credit for two things: showing how much change an administration can make quickly, and driving home the power of fully committing to a salient political message. But they fear that instead of using those lessons to enact Biden’s stated objective — a fair, orderly and humane immigration system — the president has borrowed too many of his predecessor’s policies and not enough of the fervor.

Biden has extended Trump’s policy turning away the vast majority of immigrants at the border ostensibly because of COVID. The administration has also, under court order, reinstated and expanded a policy forcing migrants to wait in Mexico for court hearings, despite Biden running against the policy in his campaign. And his Justice Department is defending some of Trump’s policies in court against challenges from immigrant advocates.

Several immigration groups worked together on what became known as the “Big Book,” a collection of more than 500 policy recommendations for the incoming Biden administration. The pro-immigration group Immigration Hub has tracked about 150 that have been implemented so far. Many of those were reversing Trump policies.

“What we don’t have is a White House that’s committed to moving forward on the stated Biden administration agenda in the way that the Trump White House was committed to moving forward on theirs, and as a result, we’re living in a world where a whole lot of those Trump policies are still around,” said Omar Jadwat, director of the Immigrants’ Rights Project with the American Civil Liberties Union.

A White House spokesperson objected to the notion that Biden has not delivered progress on immigration, citing actions in the early days of the administration to roll back some of Trump’s policies, extend protections to young undocumented immigrants who came to the U.S. as children and new protections for migrants whose home countries are in turmoil.

“This administration is committed to working day in and day out to provide relief to immigrants and bring our immigration system into the 21st century,” spokesperson Vedant Patel said.

During the presidential campaign, Biden ran on turning the page from Trump’s hardline immigration policies and talked up a plan to get a pathway to citizenship for the undocumented into law. He also emphasized the importance of letting asylum-seekers make their case to stay in the U.S., and said the Obama administration in which he served made a mistake in waiting too long to enact immigration reforms.

In his early days in office, Biden did introduce policies cheered by immigration advocates, including rescinding Trump’s travel bans and embracing an aggressive legislative strategy to legalize millions of undocumented immigrants through procedural maneuvers that would require only Democratic votes.

But he also kept in place a controversial policy known as Title 42 that essentially closed the southern border to virtually all immigrants. Then in the spring, when border crossings soared to historic levels, the Biden administration doubled down on deterring migration, vexing many advocates who saw that strategy as essentially an embrace of the right’s talking points. Others have pinned their hopes on Vice President Kamala Harris, who forged a strong progressive streak on immigration while serving as California’s senator. She has led administration efforts to improve conditions in Central America, but also adopted deterrence talking points, including urging would-be migrants directly while in Guatemala: “Do not come.”

More: https://www.sfchronicle.com/politics/article/One-year-in-Biden-has-been-slow-to-unwind-Trump-16725642.php

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

As Tal and others have observed, the Trump Administration “hit the ground running” on its White Nationalist anti-immigrant agenda, which was a key part of it’s overall anti-democracy, neo-fascist program.

The Biden Administration’s campaign pledges to undo the damage — not so much. In the end, lack of backbone, failure to leverage and use the expert talent available, not acting quickly, and treating values-based campaign promises as “fungible political capital” has left the Administration “wandering in the wilderness” on this key issue. Usually, standing for the right thing, even if risky, is a far better path than aimlessly wobbling around.

“Don’t come” is not part of our asylum law!

🇺🇸Due Process Forever!

PWS

01-03-22

👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!

The “Gauleiter”s” policies of “transportation” of legal asylum seekers to danger zones or death has, to a totally unacceptable extent, been adopted by the Biden Administration. America’s cowardly, immoral, illegal, and unethical treatment of these vulnerable individuals will haunt our nation for generations to come! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

https://trac.syr.edu/immigration/reports/672/

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

. . . .

Completed Asylum Cases and Outcomes

Asylum grant rates have often been the focus of public attention and discussion. An implicit assumption is often made that if the immigrants’ asylum applications are denied that they have been unsuccessful in their quest to legally remain in the U.S. However, this may not always be the case. In addition to asylum, there are often other avenues for relief, and other types of decisions where the Immigration Court can determine that an individual should be allowed to legally remain in the U.S. This report breaks new ground in empirically documenting just how often asylum seekers’ quests to legally remain in the U.S. have been successful.

According to case-by-case records of the Immigration Courts, Immigration Judges completed close to one million cases (967,552) on which asylum applications had been filed during the last 21 years (October 2000 – September 2021). Of these, judges granted asylum to 249,413 or one-quarter (26%) of these cases.

However, only about half of asylum seekers were ordered deported. More specifically, just 42 percent received removal orders or their equivalent,[4] and an additional 8 percent received so-called voluntary departure orders. These orders require the asylum seekers to leave the country, but unlike removal orders voluntary departure orders do not penalize individuals further by legally barring them for a period of years from reentry should their circumstances change.

The remaining one-quarter (24%) of asylum seekers were granted other forms or relief or Immigration Judges closed their cases using other grounds which allowed asylum seekers to legally remain in the country.[5] When this proportion is added to asylum grant rates, half of asylum seekers in Immigration Court cases — about twice the individuals granted asylum — have been successful in their quest to legally remain in the United States at least for a period of time. See Figure 5.

Figure 5. Outcome of U.S. Asylum Applications, October 2000 – September 2021

(Click for larger image)

Focusing on just Immigration Court asylum cases, however, does not take into consideration asylum seekers who have asylum granted by Asylum Officers from the United States Citizenship and Immigration Services (USCIS). Those cases end there with the asylum grant. Only unsuccessful cases are forwarded to the Immigration Court for review afresh, and thus included in the Immigration Court’s records. These referrals of asylum denials by USCIS Asylum Officers are classified in the Court’s records as affirmative asylum cases,[6] to distinguish them from those that start with DHS seeking a removal order from the Immigration Court and the asylum claim being raised as a defense against removal.

Thus, a more complete picture of asylum seekers to the U.S. would add in the asylum grants by USCIS on these affirmative cases. Over the period since October 2000, the total number of asylum grants totals just under 600,000 cases – more than double the asylum grants by Immigration Judges alone.[7] Asylum Officers granted asylum in just over 350,000 cases, while Immigration Judges granted asylum in an additional close to 250,000 cases. See Tables 5a and 5b.

Asylum grants thus make up almost half (46%) of the outcomes on the total number of 1.3 million cases closed in which asylum applications were filed. An additional one in five (18%) were granted some other form of relief or otherwise allowed to legally remain in the U.S. Thus, almost two-thirds (64%) of asylum seekers in the 1.3 million cases which were resolved have been successful over the past two decades.

Figure 5 above presents a side-by-side comparison of asylum case outcomes when examining Immigration Court completions alone, and how outcome percentages shift once Asylum Officers’ asylum grants are combined with decisions made by Immigration Judges.

. . . .

Outcome on Asylum Cases Number Percent**

IJ Outcome on Asylum Cases

Asylum Granted by IJ 249,413 26%

Other Relief, etc. 236,889 24%

Removal Order 403,252 42%

Voluntary Departure Order 77,998 8%

Total IJ Asylum Completions 967,552 100%

USCIS + IJ Outcome on Asylum Cases

Asylum Granted by USCIS+IJ 599,772 46%

Other Relief, etc by IJ 236,889 18%

Removal Order by IJ 403,252 31%

Voluntary Departure Order by IJ 77,998 6%

USCIS + IJ Asylum Completions 1,317,911 100%

. . . .

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

Read the complete TRAC report, containing all the graphs and charts that I could not adequately reproduce, at the link.

Applying the 50% “granted protection of some type” rate in Immigration Court to the ever expanding backlog of 667,000 asylum cases in Garland’s dysfunctional EOIR, that means that there are at least 333,000 asylum seekers who should be “out of Garland’s backlog” and legally living, working, and/or studying in the U.S., probably over 165,000 of whom should be on the way to green cards, citizenship, or already citizens in a functional system!

And, the TRAC-documented success rate has been achieved in a system that has been designed with bias to deter and discourage asylum seekers with mediocre, or even hostile, judges, a BIA that lacks asylum expertise and turns out incorrect restrictionist precedents, and administrative leadership that specializes in ineptitude, toadyism, and mindless “aimless docket reshuffling.”

Obviously, the “get to stay” rate would be much higher with better-qualified, better-trained, merit-selected judges, guided and kept in line by a BIA of America’s best and brightest appellate judges with proven expertise in asylum, immigration, human rights, due process, and racial justice, and dynamic, inspiring, well-qualified leadership. For a great example of what “could have been” with a better AG, see, e.g., https://immigrationcourtside.com/2021/12/18/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8courts-justice-courtside-proudly-announces-the-dream-bia-its-out-there-even-if-garland/.

Better problem-solving-focused judicial leadership at EOIR could come up with innovative ways of screening and getting the many aged, grantable cases of asylum seekers and other migrants (cancellation of removal, SIJS, and “stateside processing” come to mind) out of the Immigration Court backlog and into an alternative setting where relief could granted more efficiently. For the most part, there is no useful purpose to be served by keeping cases more than three years old on the Immigration Court docket.

The Immigration Courts must work largely in “real time” with real judges who can produce consistent, fair results on a predictable timetable. Big parts of that are increasing competent representation, providing better legal guidance on recognizing and promptly granting meritorious cases (that, significantly, would also guide the USCIS Asylum Office), and standing up to efforts by DHS Enforcement to overwhelm judicial resources and use Immigration Courts to “warehouse and babysit” the results of their own mismanagement and misdirection of resources.

There’s no chance that Garland (based on inept and disinterested performance to date, and his near total lack of awareness and urgency) and the crew, largely of Sessions/Barr holdovers, currently comprising his EOIR can pull it off. That’s a monumental problem for migrants and American justice generally!

Without an AG with the guts, determination, expertise, and vision to “clean house” at EOIR and DOJ, or alternatively, a Congress that takes this mess out of the DOJ and creates a real Article I Immigration Court system, backlogs, fundamental unfairness, and incompetence at EOIR will continue to drag down the American legal system.

Worthy of note: The TRAC stats confirm the generally held belief that those asylum seekers held in detention (the “New American Gulag” or “NAG”) are very significantly less likely to be granted relief than those appearing in a non-detained setting. But, what would be helpful, perhaps a task for “practical scholars” somewhere, would be to know “why.”

Is it because the cases simply are not a strong, because of criminal backgrounds or otherwise? Or, is it because of the chronic lack of representation, intentional coercion, and generally less sympathetic judges often present in detention settings? Or, as is likely, is it some combination of all these factors?

Also worthy of note: Three major non-detained courts, with approximately 31,000 pending asylum cases, had success rates significantly below (20% or more) the national average of 50%:

Houston (19%)
Atlanta (29%)
Harlingen (24%)

On the “flip side,” I was somewhat pleasantly surprised to see that the oft-criticized El Paso Immigration Court (non-detained) had a very respectable 48% success rate — a mere 2% off the national average! Interesting!

Also worthy of watching: Although based on a tiny, non-statistically-valid sampling (2% of filed asylum cases), Houston-Greenspoint had a 53% grant rate, compared with “Houston non-detained’s” measly 19%. If this trend continues — and it well might not, given the very small sample — it would certainly be worthy knowing the reasons for this great disparity.

In addition to “giving lie” to the bogus claims, advanced mostly by GOP nativists, but also by some Dems and officials in Dem Administrations, that most asylum seekers don’t have valid claims to remain, the exact opposite appears to be true! Keeping asylum seekers from getting fair and timely dispositions of their cases hurts them at least as much, probably more, than any legitimate Government interest.

Moreover, it strongly suggests that hundreds of thousands of legitimate asylum seekers with bona fide claims for protection have been illegally and immorally returned to danger or death without any semblance of due process under a combination of a bogus Title 42 rationale and an equally bogus “Remain in Mexico” travesty. It should also prompt some meaningful evaluation of the intellectual and moral failings of Administrations or both parties, poorly-qualified Article III judges, and legislators who have encouraged, enforced, or enabled these “crimes against humanity” — and the most vulnerable in humanity to boot!

🇺🇸 Due Process Forever!

PWS

12-24-21

☠️🤮⚰️ HOLIDAY HORROR @ BORDER: NATIVIST GOP AGs, SCOFFLAW 5th CIR. JUDGES, BUMBLING BIDEN BUREAUCRATS, FECKLESS CONGRESS DELIVER CRUEL MESSAGE OF DEATH & DESPAIR TO MOST VULNERABLE HUMANS @ BORDER DURING HOLY SEASON! — Disgraceful “Remain In Mexico Redux” Opens To Predictable Chaos — “I told the asylum officer I’d rather be in a U.S. detention center than be sent back to Mexico, . . . it’s dangerous for us.” Duh!

“Floaters” — 🎅🏻🎁🧸🎄😇“Happy Holidays from the U.S. Government! Don’t these folks know they could avoid this fate if they only would take our advice and ‘due in place’ — out of sight, out of mind.”
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)

https://www.washingtonpost.com/immigration/remain-in-mexico-policy-biden/2021/12/16/2c85ff66-5e1e-11ec-ae5b-5002292337c7_story.html

Arelis R. Hernandez reports for WashPost:

EL PASO — Chaos, confusion and disillusionment marked the experience of many of the first asylum seekers to be enrolled in the Biden administration’s revised “Remain in Mexico” program, saying they understood little about what was happening or why they were selected.

The Trump-era program — formally known as Migrant Protection Protocols (MPP) — returns border-crossers to Mexico to await the outcomes of their asylum claims and resumed earlier this month under court order. Although the Biden administration said it has made changes to the program that make it more humane, several of the first enrollees interviewed by The Washington Post said they did not understand documents they were asked to sign, did not have access to lawyers and were puzzled about why they were not released along with some of their compatriots.

Three men — two from Nicaragua and one from Venezuela — who were among the more than 160 migrants enrolled so far, said they had been robbed or extorted before crossing the U.S.-Mexico border. The men, who were fleeing political persecution, said they hoped for relief in the United States, but instead felt as if they had won a raffle they never entered.

“I told the asylum officer I’d rather be in a U.S. detention center than be sent back to Mexico,” said Pedro, a 27-year-old asylum seeker from Nicaragua. “It’s dangerous for us.”

(The Washington Post is identifying the men only by their first names because they fear they might jeopardize their cases by speaking publicly.)

Biden’s Department of Homeland Security is still trying to terminate MPP, even though it was ordered to reimplement it by a federal judge. The administration lost an appeal of the ruling this week after the U.S. Court of Appeals for the 5th Circuit in Louisiana upheld the lower court decision. The circuit court order said the Biden administration erred when it issued a memo earlier this year terminating the program, “affecting billions of dollars and countless people.” The program, which is in effect in one border community and accepting only men, will soon expand to six more communities and could soon include families.

[‘Remain in Mexico’ program begins in El Paso amid skepticism from advocates]

Advocates say that MPP subjects migrants to a policy as hazardous to their lives as the reasons that prompted them to flee to the United States for protection. They say the revised version of the program is as flawed as it was under the Trump administration, when the New York-based nonprofit Human Rights First tracked more than 1,500 “violent attacks” against migrants.

“The Biden administration’s revamped ‘Remain in Mexico’ is already presenting security and due process concerns we saw under the Trump administration,” said Julia Neusner, who interviewed 16 MPP enrollees for Human Rights First. “I anticipate this process will deny people their due process rights and accessing counsel. This policy is inherently dangerous and I expect it to cause tremendous suffering as the rollout expands.”

. . . .

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

Read the full article at the link.

”Let ‘Em Die In Mexico!” What a thoughtful way for the world’s richest and most powerful nation to recognize and honor the birth of Christ. Doubt that Jesus would approve, though! He’d more likely be found among the “floaters” than with the arrogant, privileged, inhumane politicos and judges who came up with this idea and then enabled it!

Completely unnecessary! The incoming Biden Administration had the blueprints to reestablish due process and the rule of law at the border and to start robust, realistic, expanded refugee programs in potential sending countries. The practical human rights/immigration experts who could have pulled it off were out there.

The Administration could have “hit the ground running” with bold innovative actions, practical expert leadership, and a show of competence and humanity. But, they didn’t!

Instead, Biden, Harris, Mayorkas, and Garland dissed the progressive experts, ignored their recommendations, and froze them out of key judicial and leadership positions, preferring instead to use modified versions of “proven to fail deterrence-only programs” administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers. (There is an important legal doctrine of “mixed motive” that politicos, bureaucrats, and bad judges often choose to ignore when it suits them.)

Not surprisingly, this ridiculous, muddled “Miller Lite” approach has been spectacularly unsuccessful! Predictably, flows of desperate refugees, generated largely by circumstances outside our immediate control (contrary to restrictionist myths reinforced by some enforcement aficionados and mindlessly repeated by some mainstream media) have continued. Humans have continued to needlessly suffer and die. Backlogs have grown without credible plans to address them. The rule of law and the U.S. justice system (led by failed Immigration Courts, but also including poorly functioning and too often “brain dead” jurists at all levels of the Federal Judiciary) has continued to flounder and lose credibly. The “die in place and never darken our doors” message delivered by Gauleiter Miller and his acolytes, cluelessly repeated by VP Harris, hasn’t convinced anyone. Would YOU basically accept an invitation to “commit slow suicide by persecution rather than taking a chance on survival.”

And, also predictably, nobody is pleased or supportive of the Biden Administration’s inept and disingenuous approach. From hard core racist nativists to liberal asylum advocates, nobody, but nobody, outside the Administration’s party line flackies, supports this approach! Indeed, nobody in the Administration can even explain what they are doing on any particular day in a coherent manner.

Humanity, moral courage, common sense, and the rule of law might be taking a holiday. But death and despair don’t.

🇺🇸Due Process Forever!

PWS

12-19-21

☠️NEW KIND REPORT SHOWS CRISIS OF PERSECUTION OF WOMEN & CHILDREN IN NORTHERN TRIANGLE EXACERBATED BY PANDEMIC — More Evidence Of Legal, Factual, & Moral Bankruptcy Of Administration’s Bogus “Deterrence Policies” As Well As Grotesque Failure Of U.S. Courts At All Levels To Uniformly Require Granting Of Asylum To Qualified Refugee Women & Children!

*Cover photo by photojournalist Guillermo Martinez shows a boy in El Salvador wearing a protective mask from his home during a COVID-19 lockdown. Photo credit: Guillermo Martinez/APHOTOGRAFIA/ Getty Images

New Report: Dual Crises

Gender-Based Violence and Inequality Facing Children and Women During the COVID-19 Pandemic in El Salvador, Guatemala, and Honduras

Gender-based violence has long been one of the main drivers of migration from Central America to the United States. Widespread violence, including sexual abuse, human trafficking, and violence in the home and family, combined with a lack of access to protection and justice forces children and women to flee in search of safety. Drawing on existing research and interviews with children’s and women’s rights experts, this report lays out how the COVID-19 pandemic has exacerbated already pervasive forms of violence against children and women in Central America, as well as the deeply entrenched gender inequality that leaves children and women even more vulnerable to violence.

Here’s a link to the full report: http://us.engagingnetworks.app/page/email/click/10097/1093096?email=C9P0Zhj6QQc0L7Si0LDouAN%2BRR2ul1GhmZAK81VjEpg=&campid=z6owwwxd2r6ZkArzVWMSmA==

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Successful implementation of the U.S. Strategy for Addressing the Root Causes of Migration in Central America must start by acknowledging that gender-based violence is a primary driver of migration and includes most violence against children.

Obviously, mindless, failed enforcement and deterrence-only policies that tell women and children to “suffer and die in place” rather than flee and seek asylum are absurdly out of touch with the realities of both human migration and the real situation in the Northern Triangle. This report shows that increased flight from the Northern Triangle probably has more to do with the aggravating effects of the pandemic on the already untenable situation of many women and children in the Northern Triangle than it does on any policy pronouncements, real or imagined, on the part of the Biden Administration.

An honest policy that recognizes the reality that gender-based persecution is a major driver of forced migration in the Northern Triangle would go a long way toward addressing the largely self-created situation at our Southern Border.

As many of us keep saying, to no visible avail, asylum isn’t a “policy option” for politicos and wonks to “discuss and debate.” It’s a legal and moral requirement, domestically and internationally, that we are currently defaulting upon!

Wonder why “democracy is on the ropes” throughout the world right now? Perhaps, we need look no further than our own horrible example!

A robust overseas refugee program in the region and a uniform, consistent, timely policy of granting asylum to qualified applicants applying at ports of entry at our borders would be a vast improvement.

Sure, it would undoubtedly result in the legal immigration of more refugees and asylum seekers. That’s actually what refugee and asylum laws are all about — an important and robust component of our legal immigration system.

Although our needs are not actually part of the “legal test for asylum,” the fact is, we need more legal immigrants of all types in America right now.

It should be a win-win for the refugees and for America. So why not make it happen, rather than continuing failed policy approaches that serve nobody’s interest except nativist zealots trying to inflame xenophobia for political gain?

An additional point: On February 2, 2021, to great ballyhoo, President Biden issued Executive Order 14010. A key provision of that order required that:

(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.

270 days have long passed. In fact, its been more than 300 days since that order. Yet, these regulations are nowhere in sight. Perhaps, that’s a good thing.

This doesn’t come as much of a surprise to “us old timers” who have “hands on” experience with the unsuitability of the DOJ regulation drafting process for this assignment. Indeed, this assignment is actually several decades “overdue,” having originally been handed out by the late former Attorney General Janet Reno prior to her departure from office in January 2020!

The problem remains lack of expertise. With the possible exception of Lucas Guttentag, I know of nobody at today’s DOJ who actually has the necessary experience, expertise, perspective, and historical knowledge to draft a proper regulation on the topic. Past drafts and proposals have been disastrous, actually seeking to diminish, rather than increase and regularize, protections for vulnerable women and others facing persecution on account of gender-based particular social groups.

Indeed, one proposal was even used by OIL as an avenue in attempting to “water down” the all-important, life saving “regulatory presumption of future persecution arising out of past persecution!” Talk about perversions of justice at Justice! Why? Because OIL had suffered a series of embarrassing, ego-deflating setbacks from Article III Courts calling out the frequent failure of the BIA and IJs to properly apply the basics of the presumption. Sound familiar?

At DOJ, the “normal solution to lack of expertise and competence” is to simply eliminate expertise and competence as requirements! In many ways, “good enough for government work” has replaced “who prosecutes on behalf of Lady Justice” as the DOJ’s motto!

It’s also yet another reason why the DOJ is a horribly inappropriate “home” for the U.S. Immigration Courts!

😎Due Process Forever!

PWS

12-16-21

⚖️🗽NDPA CALL TO ARMS: THE GEORGE W. BUSH INSTITUTE ISSUES RESEARCH TO COMBAT THE DISINGENUOUS ATTACK ON WOMEN & THE RACE-DRIVEN MISOGYNY & MINIMIZATION OF GENDER-BASED PERSECUTION THAT INFECTS THE FEDERAL JUDICIARY & BUREAUCRACY FROM TOP TO BOTTOM! — “Better Than The Third Circuit!”

“Make the record” to fight the ignorant nonsense and grotesque misconstruction of the asylum law and country conditions by the Third Circuit & far, far too many Federal Judges & Bureaucrats with this authoritative report authored by Natalie Gonnella-Platts, Jenny Villatoro, and Laura Collins of the George W. Bush Institute:

https://www.bushcenter.org/publications/resources-reports/reports/gender-based-violence-and-migration-central-america.html?utm_source=newsletter&utm_medium=email&utm_campaign=fiveforfriday&utm_term=12102021

No Justice: Gender-based Violence and Migration in Central America

Gender-based violence affects one in three women worldwide, making it an urgent and important policy challenge. Violence against women and girls is often excluded from conversations on the nexus of Central American migration, regional development, and domestic immigration reform.

Key Excerpts:

. . . .

Though there has been increasing focus from US and international influencers on the levels of violence in El Salvador, Guatemala, and Honduras (known as the Northern Triangle) and its impact on migration, an adequate response to the gendered differences in the ways violence is perpetrated remains limited and at times nonexistent.

This needs to change, especially since gender-based violence within the Northern Triangle constitutes a daily threat to women and girls—one that has been significantly worsened by corruption, weak institutions, and a culture of impunity toward perpetrators. At individual and community levels, gender-based violence drives women and girls to be displaced internally, migrate to the United States, or a somber third path—death either by femicide or suicide. At national levels, it seriously inhibits security, opportunity, and development.

As circumstances at the southern border of the United States demonstrate, gender-based violence has a direct influence on migration flows across the region and is deeply tangled with cyclical challenges of inequity and poverty. For those who choose to seek assistance or flee their communities, high rates of revictimization and bias further obstruct access to justice and safety.

Until policies and programs respond to the serious violations of agency and human rights perpetuated against women and girls (and within systems and society at large), instability in and migration from the Northern Triangle only stand to grow.

As the United States and the international community consider a comprehensive plan on Central America and immigration reform, proposed strategies must anchor the status and safety of women and girls at the center of solutions.

. . . .

In Guatemala, teenage girls face a substantial risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.7

. . . .

Guatemala: In Guatemala, about 8 of every 1,000 women and girls were the victim of violence in 2020. Thirty women were murdered on average each month last year, or almost one per day, the lowest rate in the last 10 years. Reported rape cases averaged 14 per day.17 One of the most extreme and recognizable forms of gender-based violence is sex slavery. According to a report by the International Commission against Impunity in Guatemala (CICIG) and UNICEF: “A combination of gangs, crime families, and drug trafficking organizations run sex trafficking rings in Guatemala that may involve some 48,500 victims.”18

Women in Indigenous and rural communities may have it even worse. For example, Indigenous women in Guatemala face multiple layers of discrimination, including a history of repression and genocide.

During the genocidal Guatemalan civil war that lasted from 1960 to 1996, state sanctioned mass rape during massacres was used to repress the Indigenous populations—with offenses committed publicly and bodies often left on display with the intent to instill terror in the Mayan communities.19 Truth commissions state that more than 100,000 Indigenous women were raped and forced into sex slavery.20

State-sanctioned and state-accepted gendered violence may have contributed to a culture that tolerates violence against women. Guatemalans were the most accepting of gender-based violence in a 2014 survey of Latin American countries by Vanderbilt University, while El Salvador came in second.21

Unfortunately, the COVID-19 pandemic has further exacerbated the risk of violence to women and girls in the Northern Triangle, as it has in every region

of the world. Exploited by gangs and others, lock-downs have forced those most at risk for violence to shelter in proximity to their abusers. All three countries within the region have reported sizable increases in intrafamily violence since the start of the pandemic. El Salvador has also seen a notable increase in intrafamily femicide.

. . . .

Coupled with the trauma already experienced by survivors, each of these factors contributes to a lack of trust in institutions, high levels of impunity for perpetrators, and a vicious cycle of repeat violence against women and girls.

Faced with this dire reality, women and girls often have three choices: (1) report and face disbelief, (2) stay and risk additional violence, or (3) flee.

. . . .

Women and girls undertake this risky journey with no guarantee of legal protection in the United States. But they come because the horrors they face at home are so much worse.

It’s important to remember that seeking asylum

is often the only legal means that migrants who qualify have of entering the United States. Although requesting asylum is legal, the path to asylum is not

safe. An understanding of legal rights and access to services—including health, trauma, and legal support—also remain out of reach for many female migrants, furthering cycles of exploitation.

Current US refugee and asylum law does not recognize gender-based violence as its own category warranting protection. According to the American Bar Association, US protections for victims of gender-based violence are built upon 20 years of advocacy and sometimes favorable legal opinions.54 These protections are tenuous, with any presidential administration able to roll back the decisions made under its predecessor. Attorney General Merrick Garland recently reinstated prior precedent for gen- der-based violence asylum requests and announced that the Department of Justice would pursue a formal rule.55 But even this could be reversed in the future.

Until legislation enshrines gender-based violence as a condition warranting humanitarian protection, the United States will continue to turn away women and girls who merit refuge.

. . . .

The Northern Triangle, Mexico, and the United States are at a crossroads. El Salvador, Guatemala, and Honduras can either take advantage of a young population of prime working age by promoting pol- icies that create a safe, stable environment where women and girls can fully participate, or they can continue on a path that is leading to substantial lev- els of gender-based violence, instability, migration, and economic stagnation.

As research continuously demonstrates, when empowered, active, and engaged, women and girls are a critical catalyst for security and prosperity. Countries with higher levels of gender equity are more peaceful and stable overall.66 Gender equality can provide better outcomes for children, increased labor productivity, lower poverty rates, and reduced levels of violence.67

In seeking to secure a brighter future across the Western Hemisphere, immigration and develop- ment policies must include solutions to address gender inequity and gender-based violence. As current circumstances at the southern border of the United States demonstrate, stability and prosperity are not possible without them.

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Debi Sanders ESQ
“Warrior Queen” of the NDPA
PHOTO: law.uva.edu

Many thanks to my good friend and “founding mother of the NDPA,” Deb Sanders for bringing this to my attention.

The Bush Institute has done some great “practical scholarship” on gender-based asylum, exposing many of the lies and misinformation upon which Government policies have been based, particularly GOP nativist policies and the overtly misogynistic attack on migrant women of color by the Trump regime.

“No justice,” “protections are tenuous” (at best), “high levels of impunity,” “dire reality,” “requesting asylum is legal, the path to asylum is not safe” come to mind when reading the Third Circuit’s abominably incorrect “analysis” in Chavez-Chilil v. A.G. https://immigrationcourtside.com/2021/12/10/%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%f0%9f%91%8e%f0%9f%8f%bd-3rd-cir-badly-bungles-guatemalan-women-psg-chavez-chilel-v-atty-gen/

And let’s not forget that Ms. Chavez-Chilil is actually one of the lucky ones! She got a chance to make her claim and was awarded life-saving protection by an Immigration Judge under the CAT, albeit protection that leaves her unnecessarily and perpetually “in limbo” — ineligible to fully join our society and maximize her own human potential for everyone’s benefit.

By contrast, thousands of women and girls (also men and boys) are insanely, illegally, and immorally “orbited” back to danger zones without any opportunity to even make a claim and without any legitimate process whatsoever, let alone due process!

Why this is important:

Compelling documentation and cogent arguments will win individual cases and save lives;
We can build case law precedent for gender-based asylum grants;
We must make a clear historical record of which jurists and bureaucrats stood up for the rule of law and the humanity of refugee women and which of them purposely have aligned themselves with the “dark side of history.” See, e.g., Chief Justice Roger Taney.

Why is the Biden Administration mindlessly and immorally attempting to “deter” legal asylum seekers from seeking to save their own lives? What’s the excuse for treating a moral and legal requirement under domestic and international law as a “bogus political strategy option” rather than the legal obligation it is? Why was the DOJ “pushing” a legally wrong, corrupt, factually wrong position before the Third Circuit? Where’s the expertise? The backbone? The moral courage? The accountability?

🇺🇸Due Process Forever!

PWS

12-13-21

⚖️🛡⚔️ROUND TABLE CONDEMNS RESTART OF “REMAIN IN MEXICO!”

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

RT Statement – MPP Restart (Final)

December 6 , 2021
The Round Table of Former Immigration Judges is a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system.
There has been no greater affront to due process, fairness, and transparency than the MPP, or “Remain in Mexico” policy. Instituted under the Trump Administration, it appears to have been motivated by nothing other than cruelty.
Tragically, to comply with a most misguided court order, the Biden Administration, which promised us better, is today not only resuming the program with most of its cruelty intact, but expanding its scope to now apply to nationals of all Western Hemisphere countries.
In 1997, the BIA issued a precedent decision, Matter of S-M-J-, that remains binding on Immigration Judges and ICE prosecutors. In that decision, the BIA recognized our government’s “obligation to uphold international refugee law, including the United States’ obligation to extend refuge where such refuge is warranted. That is, immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.”1
One of the cases cited by the BIA was Freeport-McMoRan Oil & Gas Co. v. FERC,2 a decision which concluded: “We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.”
The MPP policy constitutes the pounding into submission of those who, if found to qualify for asylum, we are obliged by international law to admit, protect, and afford numerous fundamental rights. The “pounding” in this instance is literal, with reports of those lawfully pursuing their right to seek asylum in the U.S. being subject to kidnappings, extortion, sexual abuse, and other
1 Matter of S-M-J-, 21 I&N Dec. 722, 728 (BIA 1997). 2 962 F.2d 45, 48 (D.C. Cir. 1992).

threats and physical attacks.3 This is the antithesis of fairness, in which the parties are not afforded equal access to justice.
Concerning due process, a statement issued by the union representing USCIS Asylum Officers, whose members interview asylum applicants subjected to the program, noted that MPP denies those impacted of meaningful access to counsel, and further impedes their ability to gather evidence and access necessary resources to prepare their cases.4 As former judges who regularly decided asylum claims, we can vouch for the importance of representation and access to evidence, including the opinions of country condition experts, in successfully obtaining asylum. Yet according to a report issued during the Trump Administration, only four percent of those forced to remain in Mexico under MPP were able to obtain representation.5 As of course, DHS attorneys are not similarly impeded, the policy thus fails to afford the parties a level playing field.
As to transparency, one former Immigration Judge from our group who attempted to observe MPP hearings under the prior administration was prevented from doing so despite having the consent of the asylum seeker to be present. A letter from our group to the EOIR Director and the Chief Immigration Judge expressing our concern went unanswered.
Like many others who understand the importance that a fair and independent court system plays in a free and democratic society, we had hoped to have seen the last of this cruel policy. And like so many others, we are beyond disappointed to learn that we were wrong. On this day in which MPP is being restarted, we join so many others both within and outside of government in demanding better.
We urge the Biden Administration to end its unwarranted expansion of MPP; to instead do everything in its power to permanently end the program; and to insure that in the interim, any court-ordered restart of MPP first accord with our international treaty obligations towards refugees, and with the requirements of due process and fairness on which our legal system is premised.
Contact Jeffrey S. Chase, jeffchase99@gmail.com
3 See the compilation of of publicly reported cases of violent attacks on those returned to Mexico under MPP by Human Rights First, available at https://www.humanrightsfirst.org/sites/default/files/ PubliclyReportedMPPAttacks2.19.2021.pdf.
4 American Federation of Government Employees, National Citizenship and Immigration Services Council 119, “Union Representing USCIS Asylum Officers Condemns Re-Implementation of the Migrant Protection Protocols” (Dec. 2, 2021).
5 Syracuse University, TRAC Immigration, “Contrasting Experiences: MPP vs. Non-MPP Immigration Court Cases,” available at https://trac.syr.edu/immigration/reports/587/.

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Thanks to “Sir Jeffrey” Chase for leading this effort. It’s an honor and a privilege to serve with you and our other colleagues on the Round Table!

🇺🇸Due Process Forever!

PWS

12-06-21

🌎ENVIRONMENTAL REFUGEES ARE ENTITLED TO PROTECTION — BIDEN ADMINISTRATION RECOGNIZES PROBLEM, BUT FAILS TO ACT ACCORDINGLY — Bannon & Far Right Neo Fascists 🏴‍☠️ Plan To Leverage Lies, Hate, Fear, & Loathing To Destroy Civilization! ☹️ — Round Table’s 🛡⚔️ Jeffrey Chase & The Guardian’s 🖋 Zoe Williams Sound The Alarm!⏰

https://www.jeffreyschase.com/blog/2021/11/22/white-house-issues-report-on-climate-change-and-migration\

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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White House Issues Report on Climate Change and Migration

On October 21, the White House issued a Report on the Impact of Climate Change on Migration which contains a few noteworthy passages relating to the law of asylum.

On page 17, the White House report acknowledges that existing legal instruments for addressing displacement caused by climate change are limited. Encouragingly, the report advises that “the United States should endeavor to maximize their application, as appropriate” to such displaced individuals.

The report next cites both the 1951 Refugee Convention and the 1967 Protocol and their application to climate-induced displacement, referencing recent UNHCR guidance on the topic. The report then offers three examples in which climate change issues might arise in the asylum context.

First, the report recognizes that where “a government withholds or denies relief from the impacts of climate change to specific individuals who share a protected characteristic in a manner and to a degree amounting to persecution, such individuals may be eligible for refugee status.”

Secondly, the report acknowledges that “adverse impacts of climate change may affect whether an individual has a viable relocation alternative within their country or territory.” This language relates to the regulatory requirement that in order to have a well-founded fear of persecution, an asylum applicant could not avoid persecution by relocating within their country of nationality “if under all the circumstances it would be reasonable to expect the applicant to do so.”1

The applicable regulations instruct that:

adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.2

While the regulatory language is broad and non-exhaustive, the specific mention of climate change factors in the White House report is most welcome, as such circumstances might not otherwise jump out at immigration judges and asylum officers as being relevant to the relocation inquiry.

Thirdly, the White House report states that “[c]limate activists, or environmental defenders, persecuted for speaking out against government inaction on climate change may also have a plausible claim to refugee status.”

Although not specifically cited in the White House report, UNHCR issued guidance on the topic in October 2020.3 Practitioners should file both the White House report and the UNHCR guidance with EOIR and DHS in appropriate cases, as the latter clearly served as an influence for the former, and provides greater detail in its guidance.4 For instance, in discussing how climate change factors can influence internal relocation options, the UNHCR document at paragraph 12 makes clear that the “slow-onset effects of climate change, for example environmental degradation, desertification or sea level rise, initially affecting only parts of a country, may progressively affect other parts, making relocation neither relevant nor reasonable.” This detail not included in the White House report is important; it clarifies that the test for whether relocation is reasonable requires a long view, as opposed to limiting the inquiry to existing conditions, and specifically flags forms of climate change that might otherwise escape an adjudicator’s notice.

Also, in paragraph 10, the UNHCR document’s take on the White House report’s third example is somewhat broader, stating that “[a] well-founded fear of being persecuted may also arise for environmental defenders, activists or journalists, who are targeted for defending, conserving and reporting on ecosystems and resources.”5 UNHCR’s inclusion of journalists as potential targets, and its listing of “defending, conserving, and reporting” as activities which a state might lump into the category of “speaking out” and use as a basis for persecution, should be brought to the attention of adjudicators.

Given how early we are in the process of considering climate change issues in the asylum context, the above-cited language in the White House report is important, as it provides legitimacy to theories still unfamiliar to the ears of those adjudicating, reviewing, and litigating asylum claims. It is hoped that EOIR and DHS will immediately familiarize its employees who are involved in asylum adjudication with the report. And as EOIR and DHS consider next steps in developing guidance and training, it is hoped that they will consider a collaborative approach, including in the discussion those outside of government who have already given the topic a great deal of thought.6

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Notes:

8 CFR 208.13(b)(2)(ii).

Id.

UN High Commissioner for Refugees (UNHCR), Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters, 1 October 2020, https://www.refworld.org/docid/5f75f2734.html, at para. 12.

Although UNHCR’s views on interpreting the 1951 Convention and 1967 Protocol are not binding on the U.S. Immigration Courts, they have been found by the BIA to be “useful tools in construing our obligations under the Protocol.” Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 (1987).

Id. at para. 10.

See, e.g. “Shelter From the Storm: Policy Options to Address Climate Induced Displacement From the Northern Triangle,” https://www.humanrightsnetwork.org/climate-change-and-displaced-persons.

NOVEMBER 22, 2021

NEXT

The Need For Full-Fledged Asylum Hearings

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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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https://www.theguardian.com/commentisfree/2021/nov/11/climate-refugees-far-right-crisis?CMP=Share_iOSApp_Other

Failing to plan for climate refugees hands a cheap victory to the far right

Zoe Williams

The climate crisis could cause mass displacement as land is left uninhabitable – nations have to work together to plan for this

Thu 11 Nov 2021 03.00 EST

Last modified on Thu 11 Nov 2021 03.02 EST

As scientists wrestle to predict the true impact and legacy of Cop26, one speech, given at a rally organised by Global Justice Now, insisted upon a perspective not data-driven but moral. Lumumba Di-Aping, a South Sudanese diplomat and former chief negotiator for the G77, said: “The first resolution that should be agreed in Glasgow is for annex I polluters to grant the citizens of small island developing states the right to immigration.”

It was a tactful way of putting it: annex I nations are those with special financial responsibilities in tackling the climate crisis. They have these special responsibilities because their early industrialisation created so much of the carbon burden. A more pugilistic diplomat might have said “the people who created this disaster have to offer sanctuary to those displaced by it”, but then, he wouldn’t be a diplomat.

Di-Aping went on to note article 3 of the UN Universal Declaration of Human Rights: “Everyone has the right to life, liberty and security of person.” “Small island states,” he concluded, “should not be drowned alive like Zealandia.”

. . . .

As old debates around the climate crisis and whether or not it is anthropogenic give way to consensus, new ambiguities and uncertainties are constructed around refugees: can they really be called the victims of environmental degradation? We will grapple with any other explanation – they’re actually economic migrants, or they’re the victims of civil strife, or they fell foul of a dictatorship, the one-bad-man theory of geopolitics – rather than trace these proximal causes back to their roots. Most political efforts, currently, are geared towards building a positive picture of a sustainable future; the alternative is despair or denial, neither of which are generative forces for change. A coherent, practical plan detailing the probable scale of displacement and figuring out a just distribution of the climate diaspora will look radical and unsettling.

One group is extremely comfortable on that territory, however: the far right. Steve Bannon sent a chill down the spine in 2015 when he talked about a “Camp of the Saints-type invasion into … Europe”. He made the reference again and again, until finally onlookers were forced to read the source: Jean Raspail’s racist novel of 1973, which one contemporary reviewer called “a major event … in much the same sense that Mein Kampf was a major event”. The title comes from a passage in the Book of Revelation about the coming apocalypse – civilisation collapses when the hordes arrive from the four corners of the Earth to “surround the camp of the saints and the beloved city” – and Raspail took up the idea; it was inevitable, he said, that “numberless disinherited people of the south would set sail one day for this opulent shore”.

Through Bannon and others, this idea has replicated, mutated and engulfed others, to become the “great replacement theory” of white supremacists, which Paul Mason describes in his recent book How to Stop Fascism as the toxic political view that “immigration constitutes a ‘genocide’ of the white race”. Feminists help it along by depressing the birth-rate, and cultural Marxists bring the mood music, by supporting both migrants and feminists.

Other far-right movements are sucked into the vortex of this wild but coherent theory, and yet more are spawned or shaped by it: the cosmic right (embodied in Jake Angeli, the QAnon figure in the animal-skin cap who stormed the Capitol in January, then went on hunger strike in prison because the food wasn’t organic), or the eco-minded white supremacists who make this explicit – you can be a humanitarian or an environmentalist. Choose one.

As fanciful and irrational as many far-right arguments are, they have a rat-like cunning. They find these spaces that are untenanted by mainstream debate – there will be climate refugees and they must be accommodated – and they run riot in them. Nations who ignore Lumumba Di-Aping aren’t doing anything to avert the consequences he describes: their silence merely creates an open goal for the professed enemies of a peaceful and prosperous future.

Zoe Williams is a Guardian columnist

*********

Read Zoe’s complete article at the link.

Usually White House Reports and other quasi-academic “White Papers” produced at public expense are accompanied by major press releases and momentary hoopla. Then, they are rapidly consigned to the “Dustbin of History.”

They are widely ignored by politicos and bureaucrats who all too often are pursuing policies with little or no empirical basis, but designed to appease or “fire up” some voting block or to further the institutional self-preservation upon which bureaucracies thrive, expand, and prosper, even at the expense of the well-being of the governed!

This report, however, is one that deserves to be the basis for policy action! Too bad it isn’t!

Obviously, an Administration that failed to restore existing refugee and asylum systems, continues to subject migrants to due process denying “star chambers,” thinks “die in place” is an acceptable and effective refugee policy, and wrongly views asylum as a “policy option” rather than a well-established legal and human right, is playing right into the hands of Bannon, Miller, and their 21st Century nihilist movement! It’s also an Administration that didn’t learn much from World War II and the Cold War.

And, on future inevitable and predictable forced migrations, the world isn’t going to get much leadership from a rich nation that can’t even deal fairly, generously, and efficiently with today’s largely predictable, potentially very manageable, refugee situations. Many are situations that our nation either created or played a significant role in creating. See, e.g., environmental migration.

There is actually “room at the inn” for everyone and creative ways for nations to work together to resettle refugees of all types while prospering and working together for the benefit of humanity. Sure, they contradict the nationalist myths upon which many past and current refugee and migration restrictions are based.

Clearly, the realistic, constructive, humane solutions necessary for survival aren’t going come from the racist far right! And, currently the Biden Administration’s failure to stand up for the legal, moral, and human rights of asylum seekers and other referees isn’t doing the job either! Constructive, democratic, moral leadership and courage, oh where, oh where, have you gone?

We can’t deport, imprison, prosecute, wall, threaten, mythologize, abuse, and hate our way out of forced migration situations. It’s going to take dynamic, courageous folks who can get beyond past failures and lead the way to a better future for humanity!

🇺🇸Due Process Forever!

PWS

11-24-21

⚠️🚸🆘☠️☹️THE GIBSON REPORT —10-25-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Posts Show How USG’s Scofflaw Asylum Policies Generate Unnecessary Irregular Entries, Misleading Statistics, More Unnecessary CBP “Apprehensions,” More CBP Abuses, No Accountability For Abusers, & No Plans By Biden Administration To Rectify Situation — Lack Of Principled, Realistic, Legally Compliant Border Policy Undermines Democracy!

Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

NEWS

9th Circ. nixes order mandating more COVID protections for ICE detainees

Reuters: The 9th U.S. Circuit Court of Appeals in a 2-1 ruling said the preliminary injunction issued last year improperly placed ICE’s entire network of detention facilities under the direction of a single federal judge, an error because the plaintiffs failed to show systemic nationwide shortfalls in detainee health protections.

DOJ lifts Trump-era case quotas for immigration judges

ABA: Immigration judges will no longer be required to close 700 cases per year to get a “satisfactory” rating.

Border Patrol apprehensions hit a record high. But that’s only part of the story

NPR: The Border Patrol recorded nearly 1.7 million migrant apprehensions at the Southern border over the past year — the highest number ever, eclipsing the record set more than two decades ago. But that doesn’t mean it’s the biggest number of individual migrants who’ve illegally crossed from Mexico into the U.S. in a single year. In fact, it’s probably not even close. See also Tired of waiting for asylum in southern Mexico, thousands of migrants march north.

New York Set Aside $2.1 Billion for Undocumented Workers. It Isn’t Enough.

NYT: A demand for aid has depleted the Excluded Workers Fund in New York, and thousands of those who qualify could miss out on payments. See also Immigrant families struggle to access child tax credit payments.

A Leaked US Government Report Documents How People With Medical Conditions And Disabilities Were Forced Into The “Remain In Mexico” Program

BuzzFeed: The report offers a rare window into the behind-the-scenes dysfunction and confusion surrounding the so-called Remain in Mexico program, which is set to come back.

‘It Should Not Have Happened’: Asylum Officers Detail Migrants’ Accounts of Abuse

NYT: More than 160 reports, obtained by Human Rights Watch, reveal details of mistreatment that asylum seekers described experiencing from border officials and while in U.S. custody.

Border agents who made violent, lewd Facebook posts faced flawed disciplinary process at CBP, House investigation finds

WaPo: A U.S. Customs and Border Protection discipline board found that 60 agents “committed misconduct” by sharing violent and obscene posts in secret Facebook groups but fired only two — far fewer than an internal discipline board had recommended, according to a House Oversight and Reform Committee report released Monday.

ICE Review Of Immigrant’s Suicide Finds Falsified Documents, Neglect, And Improper Confinement

Intercept: An internal review of Efraín Romero de la Rosa’s death in ICE custody found almost two dozen policy violations during his stint in detention.

Biden’s Pick To Lead CBP Supports Two Of Trump’s Most Controversial Border Initiatives

Intercept: In a confirmation hearing, Tucson Police Chief Chris Magnus signaled support for Title 42 and border wall construction.

Biden’s Embrace Of Border Tech Raises Privacy Concerns

Law360: President Joe Biden hasn’t shied away from using controversial technologies for immigration enforcement, raising concerns that his predecessor’s pet project to build a border wall is being replaced with a “virtual wall” rife with privacy and civil liberties problems.

California Hires Border Wall Contractors to Screen, Vaccinate Migrants

Newsweek: SLS was previously assigned to build the border wall under the Donald Trump administration, but now it is expected to work with the health department to also offer migrants prescription services and transportation for “safe onward travel.”

LITIGATION/CASELAW/RULES/MEMOS

Justices Revive Citizenship Suit After Feds Yield Ground

Law360: The U.S. Supreme Court on Monday vacated a Third Circuit ruling in a deportation case that barred a Yemeni man from acquiring citizenship through his naturalized but divorced parents, after the Biden administration said the lower court overlooked precedent.

Anti-Immigration Group Asks Justices To Nix Bond Hearings

Law360: Advocates of drastically reduced immigration urged the U.S. Supreme Court on Thursday to overturn decisions in the Third and Ninth circuits that said migrants who have been detained more than six months should get a bond review hearing.

High Court Urged To Reverse ‘Impossible’ Review Standard

Law360: A coalition of conservationists and ranchers has asked the U.S. Supreme Court to review a Ninth Circuit ruling that the federal government need not subject immigration policies to environmental review, saying it created an “impossible” standard for challenging immigration programs.

1st Circ. Orders BIA To Weigh Honduran Man’s Testimony

Law360: The First Circuit revived a Honduran man’s bid for protection from a deportation order, ruling that immigration authorities saw discrepancies in his testimony that he faced persecution as an HIV-positive gay man where there were none.

CA2 Finds Connecticut Convictions for Possession of Narcotics with Intent to Sell Were Aggravated Felony Drug Trafficking Offenses

AILA: The court held that the petitioners’ convictions under Connecticut General Statute §21a-277(a) were controlled substance offenses and aggravated felony drug trafficking crimes, and that the jurisdictional holding of Banegas Gomez v. Barr remained good law. (Chery v. Garland, 10/15/21)

CA3 Finds BIA Misapprehended Applicable Law by Not Considering Religious Persecution Against Chinese Petitioner Cumulatively

AILA: Granting the petition for review and remanding, the court held that while the BIA was correct in finding that the petitioner had not suffered political persecution in China, its reasons for rejecting religious persecution were flawed. (Liang v. Att’y Gen., 10/12/21)

CA4 Strikes Down Matter of S-O-G- & F-D-B-

AILA: The court abrogated Matter of S-O-G- & F-D-B-, holding that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA the general power to terminate removal proceedings. (Chavez Gonzalez v. Garland, 10/20/21)

5th Circ. Wants DOJ Input On Full Court Review Of ICE Policy

Law360: The Fifth Circuit on Wednesday asked the federal government to respond to Texas and Louisiana’s petition for the full appellate court to review a panel’s decision allowing the Biden administration’s policy curbing immigration enforcement operations to remain in place.

Feds Can’t Put DACA Challenge On Hold For Rulemaking

Law360: The Fifth Circuit refused to freeze the Biden administration’s appeal of a lower court order stopping the federal government from approving new applications under the Deferred Action for Childhood Arrivals program while it inks a replacement rule.

CA9 (2-1) Reverses Fraihat Preliminary Injunction

LexisNexis: Fraihat v. ICE Maj. – “COVID-19 presents inherent challenges in institutional settings, and it has without question imposed greater risks on persons in custody. But plaintiffs had to demonstrate considerably more than that to warrant the extraordinary, system-wide relief that they sought.

District Court Orders Government to Begin Processing 9,905 FY2020 Diversity Visas as Soon as Is Feasible

AILA: The U.S. District Court for the District of Columbia ordered the defendants to commence processing the 9,905 DV-2020 visas as soon as is feasible, and to conclude such processing no later than the end of FY2022, or September 30, 2022. (Gomez, et al. v. Biden, et al., 10/13/21)

Feds Say DC Court Wrong To Narrow Power To Expel Migrants

Law360: The federal government urged the D.C. Circuit to erase a lower court’s injunction blocking its use of a public health law to expel migrant families, arguing that the lower court interpreted its powers under the authority too narrowly.

Judge Scolds CBP In Partial Win For Press Freedom Group

Law360: A D.C. federal judge ordered U.S. Customs and Border Protection on Monday to release previously withheld documents related to the government’s 2017 attempt to unmask a Trump administration critic’s Twitter account, while scolding the agency for its “lackluster efforts” to comply with Freedom of Information Act requirements.

Mich. Judge Drops DACA Holders’ Travel Permit Suit

Law360: A Michigan federal judge rejected two brothers’ claims that their due process and religious freedom rights were violated when they were denied travel authorization to Mexico for their grandfather’s funeral, saying that they had no recourse against the officials involved.

Documents Related to Lawsuit Seeking to Make Unpublished BIA Decisions Publicly Available

AILA: DOJ provided a status update to the court, which states that the BIA and NYLAG are in discussions regarding the possibility of posting certain unpublished BIA decisions online, both prospectively and retrospectively. (NYLAG v. BIA, 10/15/21)

DOD Denies Flouting Immigrant Soldier Citizenship Order

Law360: The Pentagon denied foreign-born soldiers’ contention that it was flouting an injunction to process their citizenship requests, telling a Washington, D.C., court that it was complying and close to doubling the number of requests that are processed annually.

IJ Finds Respondent Merits Favorable Exercise of Discretion for Fraud Waiver Under INA §237(a)(1)(H)

AILA: In balancing respondent’s desirability as a permanent resident with social and humane considerations, the IJ found that respondent was entitled to a waiver of removability for fraud or misrepresentation under INA §237(a)(1)(H). Courtesy of Christopher Helt. (Matter of Mohammed, 9/13/21)

CBP Notification of Continuation of Travel Restrictions from Mexico and Intent to Lift Restrictions for Vaccinated Individuals

AILA: CBP notification of the continuation of travel restrictions limiting non-essential travel from Mexico into the U.S. at land ports of entry through 1/21/22, while also announcing the intent to lift these restrictions for individuals fully vaccinated against COVID-19. (86 FR 58216, 10/21/21)

DHS Notice on Implementation of Employment Authorization for Individuals Covered by DED for Hong Kong

AILA: DHS notice establishing procedures for individuals covered by Deferred Enforced Departure (DED) for Hong Kong to apply for employment authorization through 2/5/23. (86 FR 58296, 10/21/21)

RESOURCES

AILA: Attorney Obligations When Posting on Social Media

AILA: Practice Pointer: Best Practices for Preparing and Filing Form I-912, Request for Fee Waiver

AILA: Practice Pointer: Liaison Assistance for VAWA, Us, and Ts

AILA: Use of Video Teleconferences During Immigration Hearings

AILA: Practice Alert: Biden Administration Plans to Rescind COVID-19 Travel Bans and Instead Require Proof of Vaccination

AILA: Position on the Use of Virtual Hearings in Removal Proceedings

AILA: Sample Complaint for Declaratory and Injunctive Relief Under the APA in a Claim Against CBP

CLINIC: Central American Family Law Codes

CLINIC: Current Updates on USCIS Processing Times

NIP/NLG: Explainer: Budget Reconciliation and the Filibuster

Suffolk County DA: Newly created Immigrant Affairs unit. The Chief of the unit is Leslie Anderson and Deputy Chief is Imran Ahmed. Their hotline is 631-852-2950 and the dedicated email address is immigrantaffairsDA@suffolkcountyny.gov.

USCIS: Immigration Benefits for Noncitizen Crime Victims

USCIS: Updated T & U Information for Law Enforcement Agencies and Judges

USCIS: Questions and Answers: Victims of Human Trafficking, T Nonimmigrant Status

USCIS: T Visa Law Enforcement Resource Guide

USCIS: I-601A, Application for Provisional Unlawful Presence Waiver, Starting 12/20/21, we will only accept the 08/31/21 edition

VIISTA — Villanova Interdisciplinary Immigration Studies Training For Advocates

White House: Report On The Impact Of Climate Change On Migration

EVENTS

10/26/21 Emerging Issues in Asylum Law

10/26/21 Legal Trends in Consular Adjudications: Updates to the Foreign Affairs Manual

10/27/21 Challenging Expedited Removal and Reinstatement Orders

10/28/21 What’s Old Is New Again: “Hail Mary” Relief and Creative Lawyering Options That Are Back!

11/3/21 U Visa Adjustment

11/3/21 Unaccompanied Minors: Changing the Narrative & Taking Action

11/4/21 USCIS Data Listening Session

11/4/21 IDP Training: ICE Detainers in NYC: The Impact on State Criminal Cases

11/7/21 Together We Welcome: A National Faith Gathering to Strengthen Support for Refugees, Immigrants and Migrants

11/9/21, 11/16/21 Two-Part Introduction to Asylum Law and Procedure

11/10/21 Remedies for Surviving Relatives

11/11/21 Inadmissibility: A Look at Common Grounds and Red Flags

11/12/21 Haitian People at the Border: Historical and Current Push Factors and the Role of U.S. Foreign Policy

11/16/21 Advocating for Prosecutorial Discretion Under the Current Enforcement Priorities

11/16/21 Considerations for I-601A Waivers and I-212

11/18/21 Dealing with Post-Consular Interview Nightmares for Immigrant Visas

11/18/21 Ethical Representation: Serving Clients with Criminal Contacts on November 18, 2021 at 3-4:30pm

11/22/21-12/13/21 Webinar Series: Selected Issues in Family-Based Immigration

11/23/21 Establishing Social Group in Asylum Claims

11/23/21 But I’m Not an Expert! What You Need to Know About Common Non-Immigration Questions Your Clients Expect You to Know

11/29/21-12/3/21 Partial to Full Accredited Representative Initiative 2021

12/1/21 54th Annual Immigration and Naturalization Institute

12/2/21 Post-Conviction Relief For Immigrants: New Laws, New Developments, New Advice

12/7/21 Hardship in Non-LPR Cancellation Cases

12/9/21 December Immigration Update

12/15/21 FOIA

12/16/21 Ethical Scenarios for Removal Defense

02/03/22 Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas

02/04/22 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2022

ImmProf

Monday, October 25, 2021

VIISTA online certificate training to represent asylees/refugees

Immigrant of the Day: Karine Jean-Pierre (Martinique)

Biden Asylum Rule Spurs Criticism, Even From Supporters

Immigration Article of the Day: Refugee Responsibility Sharing or Responsibility Dumping?” by Katerina Linos & Elena Chachko, California Law Review

Sunday, October 24, 2021

Poetry Break: The Unwritten Letter from my Immigrant Parent by Muna Abdulahi

Immigrants in the United States

Belonging Begins With Us

Advocates say US immigration is rooted in anti-Blackness. Here’s how policies puts Black migrants at risk

Immigration Article of the Day: Labor Citizenship for the Twenty-First Century by Michael Sullivan, Seattle Journal for Social Justice

Saturday, October 23, 2021

Your Playlist: El Tri

House Democrats press Senate leaders to override parliamentarian on immigration

Immigration Article of the Day: Children as Bargaining Chips by Clare Ryan, UCLA Law Review

Friday, October 22, 2021

Ninth Circuit Court of Appeals Issues a Ruling in Fraihat v. US ICE

Thursday, October 21, 2021

“I Want to be a Border Patrol Agent When I Grow Up!”

Conference: Detention, Incarceration, and Administrative Law

Say It Ain’t So, Joe: Despite Promises, Biden Looks a Lot Like Trump on Border Issues

Human Rights Watch Report: US Records Show Physical, Sexual Abuse at Border

DOJ Walks Back Immigration Judge Case Quotas

Wednesday, October 20, 2021

CFP: Business Accountability for Human Rights: Addressing Human Rights Issues in Global Supply Chains

Strategy Conference on Climate-Induced Displacement (Virtual Conference – Oct 25, 2021)

Case update: Citizenship for children of naturalized divorced parents

Facebook Settles With DOJ Over Discrimination in H1-B Hiring

Tuesday, October 19, 2021

The Climate Migration: Testing point of Human Sensitivity

2d Amendment Rights of Undocumented Migrants

Comprehensive Immigration Reform is Long Overdue

Remove the Bureaucratic Red Tape for Afghan Nationals

Detention or Punishment?

Afghanistan: Broken Promises or Hopeful Futures

Miru Alcana – Auschwitz Survivor

University of San Francisco Immigration Clinic Attorney Position Opening

Changing Demographics in Long Island City

At the Movies: Themes of immigration and family dominate Nigerian film Eyemofe

“Fake heiress” Anna Sorokin has been jailed by ICE for 7 months

Supreme Court Sends Derivative Citizenship Case Back to Third Circuit

Monday, October 18, 2021

Job Announcement: Cardozo Clinical Immigration Fellowship

Chinese immigrant contributions on display in Yosemite

Kidnapping on Rise in Haiti

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

Sadly, more than eight months in, the Biden Administration lacks:

A coherent vision for the border;
A cogent plan to restore the refugee system and the legal asylum system (the poorly conceived “proposed asylum regs” — mostly opposed by our Round Table and other asylum experts — don’t make it);
The tough, courageous, well-informed leadership to make the necessary border enforcement and Immigration Court reforms and to stand up to the entirely predictable, well-organized nativist opposition, led by Stephen “Gauleiter” Miller and his accomplices.

Not a “recipe for success,” in my view!

Another item worthy of note: The pending settlement between NYLAG and EOIR on making unpublished decisions readily accessible to the public could open new avenues for advocates.

For example, the 1st Circuit recently cited an unpublished BIA decision in reversing the BIA on “equitable tolling.” https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-equitable-tolling-remand-james-v-garland#

BIA panel decisions favorable to respondents are almost never published as precedents by an organization where judicial independence and due process have long taken a back seat to “job preservation” within the DOJ. Politicos @ DOJ are normally much more interested in supporting enforcement and “false deterrence” goals than with enhancing due process, enforcing immigrants’ rights, and achieving racial justice when it comes to immigrants.

🇺🇸Due Process Forever!

PWS

1-26-21

☠️⚰️🏴‍☠️HAITI IS NOT “SAFE,” & THE PERVASIVE GANG VIOLENCE APPEARS TO BE POLITICALLY MOTIVATED! — “They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs. . . . It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption!” — So, Why Are Biden, Harris, Mayorkas, & Garland Illegally Returning Refugees There Without Hearing Their Asylum Claims? 👎🏽🤮

Catherine Porter
Toronto Bureau Chief
NY Times
PHOTO: NY Times website

Natalie Kitroeff
Foreign Correspondent
NY Times
PHOTO: NY Times

https://www.nytimes.com/2021/10/21/world/americas/haiti-gangs-kidnapping.html?referringSource=articleShare

By Catherine Porter and Natalie Kitroeff

They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs.The gruesome massacre three years ago, considered the worst in Haiti in decades, was more than the work of rival gangs fighting over territory. It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption, the U.S. Treasury Department announced last year.

Since then, Haiti’s gang members have grown so strong that they rule swaths of the country. The most notorious of them, a former police officer named Jimmy Cherizier, known as Barbecue, fashions himself as a political leader, holding news conferences, leading marches and, this week, even parading around as a replacement for the prime minister in the violent capital.

. . . .

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

Read the rest of this gruesome, yet telling, report at the link.

Over 21 years on the Immigration Bench as both a trial and appellate judge, I adjudicated thousands of asylum claims. The circumstances described on this article undoubtedly would give rise to many potentially valid asylum and withholding claims, based on actual or implied political opinion and/or family or gender-based “particular social groups” and Convention Against Torture (“CAT”) grants based on torture with government acquiescence or actual connivance!

So, how do Biden, Harris, Mayorkas, and Garland, who to my knowledge have never represented an asylum applicant or adjudicated an individual asylum case among them, “get away” with simply suspending the rule of law, under false pretenses, for those entitled to seek asylum?

Stephen Miller must be on “Cloud Nine” as Biden & Co. carry out his White Nationalist plans to eradicate asylum, particularly when it protects women and people of color! This is even as Miller and his neo-Nazi cohorts (a/k/a “America First Legal”) are gearing up to sue the Biden Administration to block every measure that might aid immigrants, particularly those of color.

By contrast with Miller’s delight, human rights NGOs have “had it” with the Biden Administration’s grotesque anti-asylum agenda! See, e.g.,https://m.dailykos.com/stories/2021/10/18/2058777/–We-refuse-to-be-complicit-Advocates-leave-Biden-admin-meeting-in-protest-of-Remain-in-Mexico-plan?detail=emaildkre

Haiti Corpses — NGOs don’t share the Biden Administration’s vision of what a “safe” Haiti looks like. Neither do kidnapped American missionaries!
PHOTO: Marcelo Casal, Jr., Creative Commons License

Angering and alienating your potential allies and supporters to aid the far-right program of your enemies who are determined to do whatever it takes to undermine, discredit, and destroy your Presidency! Obviously, I’m no political expert. But, sure sounds like an incredibly stupid, “designed to fail” strategy to me!

🇺🇸Due Process Forever!

PWS

1-23-21

⚖️🗽⚔️🛡 — ROUND TABLE COMMENTS ON PROPOSED ASYLUM REGS RIP LIMITATIONS ON IJ REVIEW, UNFAIR RESTRICTIONS ON DE NOVO HEARINGS, AMONG OTHER THINGS!

KEY EXCERPT:

III.E. Limitation on Immigration Judge Review

We strongly oppose the proposal to severely restrict the right of those denied asylum by USCIS to a full de novo merits hearing before an Immigration Judge.Given these significant increases in efficiency mentioned above, the proposed restrictions are unnecessary to reduce the backlog.Regardless, even if EOIR and DHS disagree with this assessment, regulations may neither contradict the Congressional intent of statutes they seek to interpret, nor deny due process in the name of efficiency.Yet the proposed rule would violate both of these principles in the changes they propose to the Immigration Court procedures.

EOIR and DHS claim that the statutory language of 8 U.S.C. § 1225(b)(1), requiring “further consideration of the application for asylum” to those found to have a credible fear of persecution, is ambiguous.In fact, the legislative history of that statute demonstrates that Congress intended for all of those found to possess a credible fear of persecution to be afforded full Immigration Court hearings. At a 1996 hearing on the bill, Senator Alan Simpson (R-WY) assured that “[a] specially trained asylum officer will hear his or her case, and if the [noncitizen] is found to have a ‘credible fear of persecution,’ he or she will be provided a full—full—asylum hearing.”EOIR and DHS are asked to note Sen. Simpson’s repetition of the word “full.”

This same sentiment was echoed by Senator Patrick Leahy (D-VT), who stated that those who establish credible fear “get a full hearing without any question,” and Rep. Lamar Smith (R-TX), who emphasized that those with a credible fear of persecution “can go through the normal process of establishing their claim.”The regulatory proposal is thus improperly violative of Congressional intent.

As to due process, in a 2013 decision, Oshodi v. Holder, the U.S. Court of Appeals for the Ninth Circuit held that limiting an asylum seeker’s testimony to events that were not duplicative of the written application, on the belief that the written record would suffice for deciding veracity, was a violation of the asylum seeker’s due process rights. Yet the proposed regulations seek to codify what according to Oshodi the Constitution specifically forbids.

The court in Oshodi stated that “the importance of live testimony to a credibility determination is well-recognized and longstanding.”Our own experience supports this conclusion.Immigration Judges have long decided cases that were first heard by Asylum Officers. The outcomes of those cases offer strong reason to question the logic of what is now being proposed. EOIR’s Statistical Yearbook for 2016 (the last year such stats were made available) shows that 83% of cases referred by asylum officers were granted asylum that year by Immigration Judges conducting de novo hearings.

Having heard as Immigration Judges many cases referred from the Asylum Office, we believe that the right to a full de novo court hearing, in which attorneys were free to offer documents and briefs, and to present testimony as they saw fit, was the reason for the large disparity in outcomes. The current system itself recognizes this; it is why asylum officers, who need not be attorneys, are limited to granting clearly meritorious cases, and must refer the rest to courts better equipped to delve into the intricacies of a highly complex field of law.

We can vouch from our experience on the bench to the importance of hearing live testimony in reaching the correct decision.We decided many cases in which in-person demeanor observations were instrumental to our credibility findings.Credibility is often a threshold issue in applications for asylum and related relief.In 2005, Congress specifically amended the criteria Immigration Judges may rely on in deciding credibility.While those criteria include their observations of the “demeanor, candor, or responsiveness of the applicant or witness” (observations which cannot be made unless testimony is witnessed), there is no provision in the statute for reaching credibility findings by reviewing an asylum officer’s opinion on the topic.The court in Oshodi cited language in a House conference report on the REAL ID Act of 2005, containing the following quote: “An immigration judge alone is in a position to observe an alien’s tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He [or she] is, by virtue of his [or her] acquired skill, uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.”

We can also state from experience that critical “Eureka” moments arise unexpectedly in the course of hearing testimony. A question from counsel, or sometimes from the judge, will elicit an answer that unexpectedly gives rise to a new line of questioning, or even a legal theory of the case. An example is found in last year’s Second Circuit decision in Hernandez-Chacon v. Barr. In that case, the Second Circuit found that a woman’s act of resisting rape by an MS-13 gang member could constitute a political opinion based on one sentence not contained in the written application, and uttered for the first time at the immigration court hearing: when asked why she resisted, the petitioner responded: “Because I had every right to.” From that single sentence, the Second Circuit found that the resistance transcended mere self-protection and took on a political dimension.

Under the proposed rules, the attorney would likely never have been able to ask the question that elicited the critical answer. At asylum office interviews, attorneys are relegated to sitting in the corner and quietly taking notes.Some of us teach trial advocacy skills to immigration attorneys, where we emphasize the importance of attorneys formulating a theory of their case, and then presenting documentary evidence and testimony in a manner best designed to support that theory.During our time on the bench, we looked forward to hearing well-presented claims from competent counsel; good attorneys increased efficiency, and usually led us to reach better decisions.And as former asylum officers have indicated that the concept of imputed political opinion was not available to them as a basis for granting asylum, questioning in support of such theory will not be covered in an asylum office interview.

But under the proposed procedures, attorneys are largely relegated to passive observer status.At asylum office interviews, attorneys are only provided a brief opportunity to speak after the interview has been completed.And in cases referred to the Immigration Court, the new restrictions may prevent attorneys from presenting any testimony at all.

As to the criteria that must be met in order to supplement the record before the Immigration Judge, whether evidence is duplicative or necessary is a fuzzy concept. For example, the law accords greater deference to government sources, such as State Department reports, and at times, Immigration Judges may find other evidence deserving of “little evidentiary weight.” Thus, sometimes duplicative evidence is necessary to persuade a judge who may otherwise not be sufficiently swayed by a single report. But that need might not become apparent until the hearing is concluded, whereas decisions to exclude additional testimony and documentary evidence are made much earlier, at the outset of the proceeding.

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

Read our full commentary,, including some parts of the proposal we endorse, here:

Comments NPRM Credible Fear procedures 10-19-21

Many, many, many thanks to “Sir Jeffrey” Chase for collecting the “sentiments of the group” and preparing these cogent comments under extreme pressure!

🇺🇸Due Process Forever!

PWS

10-20-21

Outcome on Asylum Cases	Number	Percent**
IJ Outcome on Asylum Cases
Asylum Granted by IJ	249,413	26%
Other Relief, etc.	236,889	24%
Removal Order	403,252	42%
Voluntary Departure Order	77,998	8%
Total IJ Asylum Completions	967,552	100%
USCIS + IJ Outcome on Asylum Cases
Asylum Granted by USCIS+IJ	599,772	46%
Other Relief, etc by IJ	236,889	18%
Removal Order by IJ	403,252	31%
Voluntary Departure Order by IJ	77,998	6%
USCIS + IJ Asylum Completions	1,317,911	100%

🇺🇸Due Process Forever!

Related posts:

Eileen Sullivan reports in The NY Times:

ACLU of Texas Released the following related fact sheet:

🇺🇸Due Process Forever!

Related posts:

Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Completed Asylum Cases and Outcomes

🇺🇸 Due Process Forever!

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Arelis R. Hernandez reports for WashPost:

🇺🇸Due Process Forever!

Related posts:

😎Due Process Forever!

Related posts:

No Justice: Gender-based Violence and Migration in Central America

Gender-based violence affects one in three women worldwide, making it an urgent and important policy challenge. Violence against women and girls is often excluded from conversations on the nexus of Central American migration, regional development, and domestic immigration reform.

Key Excerpts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

KEY EXCERPT:

Many, many, many thanks to “Sir Jeffrey” Chase for collecting the “sentiments of the group” and preparing these cogent comments under extreme pressure!

🇺🇸Due Process Forever!

Related posts: