"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
Good ideas require dynamic, timely implementation. So far, that hasn’t been a strong point for the Biden Administration on immigration and human rights. Public Realm
From Asylum Access & Reuters:
#US is looking to open a resettlement pathway to #refugees in #Mexico who arrived before June 6, 2023.
“The plan under discussion would allow qualifying migrants approved for refugee status to enter via the U.S. refugee resettlement program, which is only available to applicants abroad (…) refugees receive immediate work authorization and government benefits such as housing and employment assistance”
This is a fine idea, albeit one that many experts recommended that the Biden Administration implement in a robust way upon taking office in January 2021.
If properly and generously carried out, it could 1) stop the “endless wait” for refugees stuck in Mexico; 2) relieve border pressure; 3) avoid the backlogs at EOIR and the Asylum Office; 4) admit individuals as refugees with immediate work authorization and a clear part to green cards and citizenship; 5) pave the way for more robust refugee processing elsewhere in the Western Hemisphere; 6) avoid the political stunts of GOP nativist governors; and 7) be much harder for restrictionists to challenge in court.
Past programs similar to this in the Western Hemisphere (with the exceptions of Cubans in the 1960s) have largely failed because they have been too 1) limited, 2) slow, and 3) bureaucratized.
From the Reuters article, it appears to me that the Administration is ready to repeat all three of the foregoing mistakes, assuming the program even gets off the ground at all.
It’s definitely a good idea with promise. But realizing that promise depends on the details of implementation. In this case, they don’t sound promising. Stay tuned!
“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”
[Hats way off to superlitigator Ben Winograd! Listen to the oral argument here.]
“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”
Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!
The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!
Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!
In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️
And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways.What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?
Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
How bad is EOIR under Garland? One informed observer put it this way:
BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.
Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!
I’m sure many of you remember a childhood game called “Mother, May I?” An authority figure would say, “Jeff, take two giant steps forward!” But before doing so, the player would have to ask “Mother, may I?” Those two giant steps could only be taken if the response was “Yes, you may.” Otherwise, if the player took the steps, they were out.
If we were to take this game, direct the request and reply through an app called CBPOne, and make the stakes life or death, the result would be something very similar to the Biden Administration’s latest regulations governing asylum at the southern border.
The new rules are at odds with U.S. law. Congress has already authorized asylum seekers to take the necessary steps up to the border. The very first sentence of 8 U.S.C. § 1158 (the U.S. asylum statute) says that any noncitizen “whether or not at a designated port of arrival” and irrespective of their immigration status may apply for asylum.
And yet, not Congress but two Executive Branch agencies have now added a “Mother, May I?” type obstacle for those seeking to do what the law has long permitted. Under the new rules, the asylum seeker must first ask through a glitchy government phone app for specific permission (in the form of an appointment) before striding up to the border. Otherwise, the asylum seeker is simply not eligible for asylum, no matter how serious the danger they face if removed to their country.
How can Executive Branch agencies issue regulations that so directly contradict the statute those agencies are charged with enforcing? That question is the basis of a lawsuit filed by the ACLU, the National Immigrant Justice Center, and the Center for Gender and Refugee Studies in U.S. District Court.1
Our Round Table of Former Immigration Judges filed an amicus brief in support of petitioners’ arguments. We are in good company, as the USCIS asylum officers’ union filed a persuasive amicus brief as well.2 This means that groups representing the views of the only government officials authorized to decide asylum claims in this country (i.e. immigration judges and asylum officers) are united in opposing the new rule.
In our Round Table brief, we specifically take issue with the government’s false labeling of the new bar as merely a “rebuttable presumption” of asylum ineligibility.
Real rebuttable presumptions have long existed in our asylum regulations. For example, there is a rebuttable presumption that someone who has been persecuted in the past for reasons that give rise to an asylum claim may be persecuted again, unless major changes have since taken place in their country. There is also a presumption that one whose persecutor is the government of their country can’t find safety by simply relocating within that same country.
As you’ve probably noticed, there is a logic that flows in each of those examples from the known facts to the presumption. It is logical to assume that someone who was harmed before might be harmed again if conditions remain the same. The government may rebut the presumption by showing a fundamental change of the type that would put those fears to rest. There is a similar logic in concluding that a government’s reach extends throughout the country it governs. Again, the government may rebut that presumption through evidence establishing an exception to this general rule. In both of these examples, the fact established increases the likelihood of the fact presumed.
Now let’s return to the new rule. Say that a person faces brutal persecution on account of their political opinion if returned to their country. How does the fact that they couldn’t or didn’t get an appointment through a phone app in any way create a presumption that they are not in need of humanitarian protection? There can’t be a presumption if the fact established (i.e. that the person didn’t obtain an appointment through the app) is completely unrelated to the fact presumed (i.e. the person is not in need of asylum).
I believe it matters greatly whether the rule is considered a bar or a presumption. It is Congress that decides who may apply for asylum in this country. Thus, a regulation that admittedly creates a new bar to asylum (particularly where that bar is in direct contradiction to Congressional intent) is likely to be rejected as ultra vires by the courts. And in fact, a very similar bar to this one published by the Trump Administration was enjoined for just that reason.3 Agencies cannot usurp Congress’s role by legislating in the guise of rulemaking.
By attempting to disguise the new bar as merely a “rebuttable presumption,” the agencies seek to increase the odds of the ban passing muster this time. That is exactly the Department of Justice’s argument in its response brief: that its new rule is completely different from the prior administration’s “bar,” because according to DOJ, the new rule “does not treat manner of entry as dispositive, but instead creates a rebuttable presumption that can be overcome…”4
So the “Mother, may I?” regs clearly overstep the agencies’ legal authority. But do they create an equal barrier for all asylum seekers? The answer is no. As stated, the rules require one intending to apply for asylum to first obtain an appointment. Of course, there are more asylum seekers than there are available appointments. As mentioned, the government app through which one tries to secure an appointment, CBPOne, is full of glitches. As Prof. Austin Kocher recently noted, those glitches have impacted who gets those appointments:
the initial release of CBP One was accompanied by a variety of tech failures that did not necessarily undermine CBP’s ability to fill up its appointments calendar for asylum seekers but did create barriers to entry for migrants who were less tech savvy, could not access high-speed Internet, were part of larger families, or, either directly or indirectly, migrants who were darker-skinned or Black.5
That last point refers to the app’s problems with facial recognition that have caused it to reject applicants who are not white.6 As a result of these and other reported scheduling inequities, Sen. Edward Markey wrote to DHS back in February urging the agency to cease use of the app, due to its inaccessibility to many intending applicants, adding that “we cannot allow it to create a tiered system that treats asylum seekers differently based on their economic status — including the ability to pay for travel — language, nationality, or race.”.7
Instead of “ditching the app” as the Senator requested, the agencies instead added an exception to the bar if the noncitizen “demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”8
However, there is a big catch. Pursuant to the rule, this exception is only available to those without an appointment who make their claim at an actual port of entry. But observers at points of entry along the southern border report that “practices by U.S. and Mexican authorities restricted asylum seekers without CBP One appointments from physically reaching U.S. ports of entry to make protection requests.”9 So the exception written into the regs is not available in reality, as one seeking to claim it is restricted from reaching the port of entry where it must be claimed, and is barred from claiming the exception if they cross the border elsewhere.
If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.10 Another article described how some of those “lucky” enough to have obtained CBPOne appointments at Laredo claimed “that Mexican officials in Nuevo Laredo, across the border from Laredo, Texas, had threatened to hold them and make them miss their scheduled asylum appointments unless they paid them.”11 As a result, CBPOne appointments were temporarily suspended for the Laredo port of entry.
One excluded from asylum under these rules may still seek two types of lesser protections called withholding of removal.12 Oddly, under U.S. law, these alternative protections are much more difficult than asylum to qualify for, yet provide far fewer benefits. Asylum is an actual legal status which extends to the spouse and minor children of the asylee, allows for travel abroad, and puts recipients on a path to permanent residence and then citizenship in this country. By contrast, withholding of removal arises when an individual is ordered deported, and only blocks their deportation to a country in which persecution or torture is likely to occur, but otherwise leaves the recipient in limbo. The protection provides no path to family reunification or permanent status, and no right to travel abroad to visit the family members from whom the recipient is left indefinitely separated.
Nevertheless, withholding of removal does save lives. But not satisfied with simply barring asylum, the new regulations also make these lesser forms of protection far more difficult to access. This is because one must first pass something called a “credible fear interview” in order to even have the right to apply for withholding of removal in this country. As those interviews are conducted within days of the asylum-seeker’s arrival, in custody, often before the applicant has had the opportunity to obtain legal counsel or evidence, and possibly while suffering from the effects of persecution, the credible fear standard was intentionally designed to be a low one. The idea is to allow people who might genuinely be at risk the opportunity to fully develop their cases in a full removal proceeding, while only quickly removing those lacking legitimate claims.
But the new regulations raise the burden of proof by requiring the applicant at this very early stage to demonstrate a “reasonable fear” of persecution, which USCIS describes as the exact same standard required for a grant of asylum – i.e. “well-founded fear.13 Again, the lower credible fear standard being replaced was created solely because it isn’t reasonable to expect someone to prove more under the conditions faced by such recent arrivals. This intended safeguard has thus been completely undermined, as one who might only be a day or two in the country must now present a full-blown asylum claim just to earn the chance to have a hearing.
The new process requires non-lawyers to satisfy a complex legal standard they won’t understand, often without the time to seek legal advice or compile the evidence necessary to meet the heightened burden. I have no doubt that the process will result in genuine refugees being denied protection. And once again, the entire reason for placing applicants at such heightened risk is their not having obtained an appointment on a problematic phone app.
Why does the Biden Administration believe all this is necessary? In a recent column, Jamelle Bouie addressed the vows of some Republican presidential candidates to eliminate the constitutional right to birthright citizenship through executive order.14 In addition to presenting a compelling argument as to why this cannot legally be done, Bouie included in his column a wonderful quote from Frederick Douglass: “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”
In case the Biden Administration is wondering if it can champion that same sentiment today, in lieu of its convoluted attempt to ban protection to those deserving of it under our laws, the answer is: “Yes, you may.”
(Much thanks to attorneys Ashley Vinson Crawford and Steven Schulman of the law firm of Akin Gump for representing the group of former Immigration Judges and BIA Members on our amicus brief in East Bay Sanctuary.)
Copyright 2023, Jeffrey S. Chase. All rights reserved.
Notes:
East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810-JST, N.D. Cal. (Filed May 11, 2023).
See Britain Eakin, “Asylum Officers, Ex-Judges Back Suit on Biden Asylum Rule,” Law360, June 8, 2023.
East Bay Sanctuary v. Barr, 964 F.3d 832 (9th Cir. 2020) (holding that the Trump Administration’s asylum bar was inconsistent with our asylum laws).
Defendants’ Reply Brief, East Bay Sanctuary v. Biden, (June 30, 2023) at 8.
Austin Kocher, “Glitches in the Digitization of Asylum: How CBP One Turns Migrants’ Smartphones into Mobile Borders,” mdpi.com, June 20, 2023, https://www.mdpi.com/2075-4698/13/6/149, section 4.
Melissa del Bosque, “Facial Recognition Bias Frustrates Black Asylum Applicants to US,” The Guardian, Feb. 8, 2023,
One form of withholding covers persecution for specified reasons; the other applies to torture.
See Asylum Officer Basic Training Course Lesson Plan, “Reasonable Fear and Torture Determinations,” (USCIS, RAIO, 2017) at 11 (“The ‘reasonable possibility’ standard is the same standard required to establish eligibility for asylum (the ‘well- founded fear’ standard).”)
Jamelle Bouie, “Opinion: What Frederick Douglass Knew That Trump and DeSantis Don’t,” NYT, June 30, 2023.
JULY 5, 2023
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It’s an existential problem for our nation when a Dem Administration claims as “success:” failure to recognize the rights of asylum seekers, intentionally evading asylum law, and endangering the lives of asylum seekers!
Lest anyone think the confusion, unfairness, and disorder caused by the Biden/Harris failure to implement competent, professional, expert leadership on human rights is “overhyped,” here’s an “in person” report from Professor Lenni Benson of NY Law School, founder of Safe Passage Project, and a widely reknowned “practical expert” on asylum and human rights.
Professor Lenni B.Benson Distinguished Chair of Immigration and Human Rights Law New York Law School Founder, Safe Passage Project PHOTO: NYLS website
Sharing an excellent Blog post by retired IJ Jeff Chase on why the CBP One app may be endangering asylum applicants. See below.
Related to the CBP One app was a hearing I observed last Friday, June 30, 2023 in NY City.
A self-represented individual was asked by the IJ “were you admitted or inspected” by the government, the Respondent through a Mandarin interpreter said “Yes, through the CBP app.” The IJ paused. The OPLA attorney was visible on Webex. She was silent.
The IJ said “I will note your statement for the record, I find you removable as charged for not having been inspected or admitted.” [The Respondent had declined an opportunity to find an attorney.]
I am sure CBP will argue that entry under the app is not an inspection or admission and I haven’t looked carefully at the regulations but the issue is there to perhaps be litigated.
The other interesting twist in this particular case was that the government then told the Judge that she could see the Respondent had already completed biometrics and submitted an asylum application, but no application was in either her file nor the Court’s.
The IJ asked, do you have a copy?
The respondent: “On my phone.”
The IJ set a call-up date hearing to have the respondent print out the application and file it with the court in person.
I didn’t get a chance to speak to the Respondent, but I wondered if he had perhaps thought his interview with CBP was his asylum application or if he had filed affirmatively with USCIS.
Just sharing with this community.
Confusion abounds.
“Confusion abounds!” 🤯Why, rather than clarifying and applying the law, would the Administration intentionally create confusion and a host of unnecessary “litigatable issues?”
Why would they create delay by supposedly having applications for asylum “filed” but unavailable electronically to either ICE or EOIR?
Why didn’t the Administration recruit and hire real “practical experts” like Lenni Benson and her colleagues to straighten out the asylum system at the border, restore the rule of law, and reform and repopulate the critically important, currently dysfunctional, Immigration Courts and the BIA with well-qualified progressive judges, merit-selected experts in human rights and practical problem solving?
Pleased to join my friend “Sir Jeffrey” in giving a big “shout out” to our Round Table colleagues and superstar NDPA attorneys Steve Schulman, Ashley Vinson Crawford, and their pro bono team at Akin Gump for representing us on the amicus brief in East Bay Sanctuary!
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Anybody naive enough to believe the “party line” from Administration wonks about “success at the border” should heed this “hot off the presses” report from Mica Rosenberg @ Reuters. It confirms the legal and humanitarian disaster at the border resulting from two plus years of mismanagement of asylum by Mayorkas, Garland, and the rest of the Biden immigration politicos who havefailed to undo the humanitarian and legal mess left behind by White Nationalist Stephen Miller and the rest of the Trumpist scofflaws!
Mica Rosenberg National Immigration Reporter, Reuters
Mica writes:
We examined the impact of the Biden administration’s new asylum regulation at the U.S.-Mexico border after it replaced the COVID-era Title 42 expulsion policy on May 11.
U.S. officials have said the regulation and other Biden immigration policies, that have opened new legal pathways to the US, have dramatically reduced the number of illegal border crossings.
But in the first month of the new policy, Reuters interviews with more than 50 migrants, U.S. and Mexican officials, a review of court records and previously unreported data found:
More than 100,000 migrants waiting in northern Mexico, many trying to snag an appointment on an oversubscribed government run smartphone app; a sharp drop in people passing their initial asylum screenings; more people in detention and tens of thousands of deportations.
My colleagues visited the mile-long migrant camp in Matamoros, across the river from Brownsville, Texas, where conditions are deteriorating, including cases of sexual assault in the camp, and we also spoke to a father who crossed the border but was speedily deported while his family was allowed into the US.
The report at the above link has many photos illustrating both the cruel stupidity of the Biden program and the amazing resilience of those still hoping, against the odds, to have their legal rights respected and protected by the USG.
Thanks, Mica, for “telling it like it is” and penetrating the “bureaucratic smokescreen” thrown up by the Administration to cover its misdeeds and human rights abuses!🤮
I love this country dearly, but not without deep sorrow for the mistakes of my own homeland. And so, I criticize it because I want this place to mean freedom for everyone.
On July 4th, I will celebrate with my mixed-immigrant, first-generation family, neighbors, and community. I tell my little one she is an Incan-Viking Warrior (because she is). And that there are places where not everyone is free, including in our own country. But we are working to change that. I try to teach her about refugees and why people flee their homes to come to the United States.
We also talk about family separation. Not long after zero-tolerance began, another child told mine that she “belongs in a cage” after all of us, young and old alike, saw those images. These are the misgivings of small children but also the symptoms of a deeply flawed system and culture. The way the Zero Tolerance Policy desecrated freedom continues to haunt us today.
As the director of CAIR Coalition’s Detained Adult Program, I believe we can help right the path our country is currently on—one that continues to separate families with unrestrained racism and violence. The family separation crisis is ongoing, senseless, and continues to destroy our communities.
The United States has the largest immigration system in the world and is currently detaining approximately 29,000 immigrants, more than 63 percent of whom have no criminal record. In addition, the Biden Administration has deported over four million people, the majority for simple civil immigration violations, including not having the correct paperwork. This should be the least complicated public policy-making decision.
Immigrants’ rights groups need a new platform to stop these inhumane policies. It should be simple:
Stop separating families.
On an annual average, over 1,500 children in the DMV are impacted by a parent’s detention. Over a thousand children put their best forward as they try to move on with their lives without their parents—over a thousand children!
Why policies that harm our own children and communities are allowed to continue is heartbreaking. Our policies must keep families together.
Provide Immigrants in deportation proceedings with government-appointed counsel.
Immigrants in deportation proceedings, including parents, are forced to defend themselves against a government-trained attorney without a right to court-appointed counsel in a language often not their own. This means children become indefinitely separated from their parents simply because the right to a public-defense counsel is not available in immigration court. One solution would be to support the Fairness to Freedom Act and local programs for the right to counsel.
Being a parent is scary enough because there is very little you have control over in this world, but I know I am free to access the institutions in this country to care for, educate, and protect my child, but not everyone does.
As I celebrate this holiday, I will light fireworks and sparklers and do so as a symbolic spark to action for change and family unity. I hope you will join me.
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GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera
From Professors Alberto Benitez and Paulina Vera, Co-Directors, GW Law Immigration Clinic:
“Thank you isn’t enough to express how grateful we are.”
On May 22, 2023, V-M- was granted her green card. Her applications were filed on April 18, 2022 and her interview at USCIS was waived. V-M- is the wife of our long-time client, E-K-. The Clinic started representing E-K- in 2009 and helped him obtain asylum, his green card, and then his U.S. citizenship. Once he became a U.S. citizen, he was able to petition for his wife, V-M-, with whom he has two kids, ages 2 and 4. Like E-K-, V-M- is from Cameroon.
Please join me in congratulating Mir Sadra Nabavi and Trisha Kondabala, who both worked on the case.
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Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: Facebook
When I was little, my Ba would bring out fireworks for the Fourth of July. He acquired them in places like Maryland, where our family would go summer camping on the state beaches, and brought them across state lines to our little suburban enclave in upstate New York. As soon as it was dark enough out, many of our neighbors would gather, the area kids eager to see what Mr. Kuo had in store that year. Sparklers for sure. Sometimes big noisemakers. And always more than a few showstopper rockets with brilliant flourishes of color. He would hand them out to us to dole out to the other children without a thought to liability.
The 1970s were a crazy time.
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It didn’t occur to me until much later that there was some irony here. We were the only Chinese American household in the area. With four kids and a house on the corner of two main streets, our family was the center of activity for Tioga Terrace. And on July 4, Ba would bring the magic, developed centuries ago by people who looked like us, gunpowder mixed carefully with binding and coloring agents, bringing wonder and delight.
I understood we were celebrating the independence of America from the British Crown, and I most clearly remember the bicentennial celebration that took place in 1976. Our schools had focused heavily on American history that year, yet most of my understanding of what had transpired 200 years before still came from watching our Founding Fathers sing about it in the movie 1776.
Musical theatre has always been in my DNA.
In that merry portrayal, the heroes of the revolution were towering figures: debonair, erudite, romantic, able to find gallows humor at the darkest of hours. I remember best the musical number around whether slavery should be condemned in the words of the Declaration. It was a terrifying and bewildering song. What did molasses and rum and Bibles have to do with Roots? And I remember vividly poor Thomas Jefferson, the author of that brilliant document, being called out for still practicing slavery on his property.
“I have already resolved to release my slaves,” said a quietly thoughtful Jefferson.
I sincerely believed that earnest and brave man, who thrilled his colleagues with the playing of his violin, his adoring wife Martha swooning to the tune. He was a noble man, to be admired.
We didn’t learn the real truth about Jefferson, or about any of the Founding Fathers, in class. And it wasn’t taught to me in college either, even though I was a political science major. The first person to challenge my view of our any of the Founders was a Black colleague I met during my RA training, who had brought up that we don’t ever teach real history. She cited the story of Jefferson and Sally Hemings, one of the many slaves he owned—a girl he had raped when she was just 14 years old.
I didn’t want to believe it. The Declaration of Independence, and its famous author, were sacred in my mind. The principles they espoused were of the highest order. And in my mind, July 4th was my favorite holiday, next to Christmas. For one day, Ba was cooler than all the other dads, and at least for that day we were the most popular kids in the neighborhood, even though we were not fully American—at least, that’s how it had always felt.
Once the veil was pierced, however, the truth began to burn holes through my mind. I began to question a great deal of the mythology that had been spoonfed to me, really to all of us. Christopher Columbus, that was a shocker. Manifest Destiny. The Chinese Exclusion Act. The Tulsa Massacre. The internment of Japanese Americans. With each revelation, it was hard not to become deeply and irretrievably cynical about our history and the way our country has always acted toward the most vulnerable in America.
There’s a strange thing that happens when you come out the other end of all that. I began to wonder how they did it. How did people like Frederick Douglass, Dr. Martin Luther King, Jr., and even my own hero George Takei still have anything left of faith and belief in this country, after all it had done to them, their families, their communities?
“We hold these truths to be self-evident.”
That all people are equal. That we all possess “unalienable rights of life, liberty and the pursuit of happiness.”
Those words were revolutionary in their time. And they indeed spawned a revolution. Despite my great disillusionment, they still inspire and hold true for me today. That’s the power of the enduring promise of America. Not that we will always, or even most of the time, get things right, or that we won’t stumble our way into dark and nearly hopeless chapters of genocide, slavery, internment, and yes, growing Christofascism today.
Loving the promise of America isn’t the same as loving what it has done and still does to break that promise, over and over. But I’ve come to appreciate the high value of maintaining our gaze upon that North Star, the one that still shines for liberation, fairness and equality. That the promise has now endured nearly 250 years speaks to our collective and deep desire for hope, even in the face of broad and dehumanizing injustice and inequity.
The America that our white, propertied, slave-holding male Founders envisioned isn’t what we’ve got today. But that’s because we’ve improved upon that vision. For me, the America of tomorrow is a truly multi-racial, multi-denominational, pluralistic democracy, a place of opportunity and prosperity, with no one left behind. That is the vision that sustains me. It’s the one where my Chinese father could hand out fireworks on July 4 to excited, white kids and seem the most American of all the dads.
We inherited both a sacred promise and a big mess from those who came before, and we’re still working on both. The fact that it is so very hard, and we have so very far still to go, is strong evidence of the incredible value of that promise. This is evidenced in great part by how fiercely others will fight with all they have to keep us from it.
But nothing worth fighting for was ever won without a fight. And in the end, the enemies of our unalienable rights will fail. That is the faith I keep.
Happy Independence Day. Our fight continues.
— Jay
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As Jay says, “the fight continues.” And, the patriots quoted above are on the front lines!
Sad historical footnote: Whatever the “musical version of TJ supposedly ‘resolved,’” the real-life version freed only two enslaved workers in his lifetime and five (including two of his own children) at death. The rest of his enslaved workers and their families were sold upon his death to pay off his monumental debts. Thus, these enslaved African-Americans paid a huge personal price for this “Father of Freedom’s” gross financial mismanagement!
For African Americans, working and being owned by the primary drafter of the Declaration of Independence was a bad deal! No freedom, no pay, and almost all of those he owned at death got sold to pay off the debts he left, resulting in the permanent separation of families! This is the real history of our nation that Trump, DeSantis, and other GOP White Nationalist “snowflakes” don’t want you to hear or learn. IMAGE: Public realm
According to Wikipedia:
Thomas Jefferson, the third president of the United States, owned more than 600 slaves during his adult life. Jefferson freed two slaves while he lived, and five others were freed after his death, including two of his children from his relationship with his slave (and sister-in-law) Sally Hemings. His other two children with Hemings were allowed to escape without pursuit. After his death, the rest of the slaves were sold to pay off his estate’s debts.
MEXICAN CARTELS NAME STEPHEN MILLER “BIDEN ADMINISTRATION PERSON OF THE YEAR” FOR HIS CONTINUING DEADLY INFLUENCE ON U.S. BORDER POLICIES! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
In 2019, the US Department of Homeland Security (DHS) announced the Migrant Protection Protocols (MPP).1 What would become known as “remain in Mexico” was the latest in a decades-long effort by successive Republican and Democrat administrations to curb migration by making it increasingly difficult for migrants to enter and stay in the United States.
However, the policies have had numerous unintended consequences, including bolstering criminal organizations along the US-Mexico border. Whereas the smuggling of drugs and weapons used to dominate the cross-border contraband trade, human smuggling has morphed into one of the most lucrative industries for crime groups. It also has made it increasingly dangerous for migrants who face more risks en route and along the US border.
This report aims to highlight the role US policy has played in this transformation, which continues to evolve today. Specifically, it analyzes the ways in which Mexican organized crime groups have become involved in human smuggling as risks rose, prices surged, and migrants began to move through less-traveled corridors. The goal is to inform policymakers who are looking to address irregular migration and combat Mexico’s criminal organizations. We also aim to provide relevant stakeholders with opportunities for positive intervention to mitigate this human suffering by targeting the most violent criminal actors.
The findings are based on two years of desktop and field research across the Mexican states of Baja California, Chihuahua, Coahuila, Sonora, and Tamaulipas, where human smuggling is prominent. It includes dozens of in- person and remote interviews with migrants, asylum seekers, US and Mexican prosecutors, security experts, government officials, religious leaders, and migrant advocates, among others. In addition, we analyzed government data on human smuggling investigations and prosecutions, judicial cases, and previous studies on the topic.
1 US Department of Homeland Security (DHS), “Migrant Protection Protocols,” 24 January 2019.
insightcrime.org 4
Unintended Consequences: How US Immigration Policy Foments Organized Crime on the US-Mexico Border
2
Major Findings
insightcrime.org 5
1. The prevention through deterrence policies used by the US government have created an increasingly lucrative black market for human smuggling. Transnational criminal networks have assumed greater control over the movement of people and replaced the personalized, community-based nature of human smuggling that once existed.
2. The US government’s immigration policies have provided more opportunities for organized criminal groups to victimize migrants. The policies have, most notably, created a bottleneck along the US-Mexico border where northbound migrants are forced to congregate as they determine whether they are eligible to seek asylum and contemplate alternative ways to enter the country. As a result, they have become highly susceptible to extortion and kidnapping. And over time, restrictive immigration policies have expanded the scope of these lucrative, secondary criminal economies.
3. The US government’s immigration policies and the externalization of immigration enforcement to countries like Mexico have expanded the breadth of official corruption. As the US government has increased its reliance on third countries for enforcement and pushed migrants to remain in these countries, officials from these nations have expanded their illegal operations. These include extortion, kidnapping, and human smuggling rackets.
. . . .
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Read and listen to the full report at the above link.
In many ways, this detailed report, based on two years of desk and field research, is a “Duh!”It mostly confirms what experts, advocates, and those who truly understand asylum law and border security have been saying for years. Arrogant politicos from both parties have “tuned out the truth” and suggestions for positive changes, for different reasons.
The GOP has no interest in the truth because it conflicts with and undermines their racist false narrative about “open borders” and “replacement theory.” The Dems, by contrast, basically recognize the racist lies behind the GOP “close the border” narrative. But, once in office, Dem “leaders” lack the political and moral courage to stand up for human rights, the rule of law, and to make the refugee, asylum, and legal immigration systems work, at the border, abroad, and in the interior.
In other words, while nominally opposing the GOP’s nativist/racist/alarmist rhetoric (particularly during elections when votes from progressives and ethic communities are needed), Dem leaders basically accept much of the restrictionist premise. That is, that increased regular legal immigration resulting from well-functioning refugee, asylum, and legal immigration systems that comply with existing laws and due process would be politically unpopular and that the Administration lacks the self-confidence and expertise to manage legal immigration, including asylum, in an orderly, professional, and competent manner that ultimately will greatly benefit both our nation and the immigrants.
Thus, experts and advocates find themselves continually isolated in a deadly and frustrating “no-persons’ land!’ They are armed with undeniable truth and the facts to back it up, yet for transcendent reasons, neither party will give them the time of day.
So, those with the answers are stuck in an endless cycle of law suits, toothless protests, letters in opposition, focus groups, op-eds, law review articles, talking heads, and blogs (like this one) none of which offer much hope of a durable solution. And, in the meantime, the cartels are loving every minute of political failure on the part of America!
Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
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A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.
The new asylum policy is the centerpiece of the Biden administration’s border efforts.
Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.
The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.
Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.
But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.
The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border.
“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”
. . . .
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Read Hamed’s full story at the link.
None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.
In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying.
Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.”
Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?”
So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.
If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.”That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system.
NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.
Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.
“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”
Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.
Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.
City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.
New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.
Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.
Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.
The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.
The number of people requesting appointments, however, far outstrips supply.
The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.
“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.
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Read the rest of Nick’s & Joanna’s article at the link.
This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.
Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3)restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.
Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best.
Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.
This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?”
Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a“problem” that can’t be solved.
Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!
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CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!
GIULIA MCDONNELL NIETO DEL RIO reports for Documented:
The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.
“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”
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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.
The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor.
Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.
“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.
After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.
At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.
“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).
Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.
“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.
. . . .
At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.
“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.
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Read Giulia’s complete article at the link.
Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.
But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!
On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court.
She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.
Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.
Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.
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UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE
Jenell Scarborough, Pathway to Citizenship Coordinator at EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:
What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America. Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!
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Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).
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🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!
There should be a process, but there does need to be some space to be able to do this process. When you are in the thick of applying for asylum, you’re going to commit errors, you’re going to make mistakes, and it’s my understanding that these are the things that get you sent home. The work of an attorney is so important because you [as the applicant] have to turn over your soul, the best of you in this interview. The hardest part is the time, and the details required to demonstrate to the U.S. you are worthy of being allowed to remain herei
Lara Boston, MA Recently received her green card based on an asylum grant.
For people fleeing violence and persecution, nothing is more important than finding safety. For more than 40 years, U.S. asylum law has guaranteed asylum seekers the right to access legal protections enabling them to stay in the United States and avoid being returned to danger. But since the Refugee Act was signed into law in 1980, the laws on asylum eligibility have grown into a maze of convoluted requirements and pitfalls, like the children’s game “Chutes and Ladders,” with potentially deadly consequences.
Because of the complexity and requirements of asylum law, it takes time to prepare an asylum application. In my 25 years of practice, I have prepared and filed hundreds of asylum applications. Based on my experience, it takes time to get an accurate account of someone’s life when there’s violence and trauma involved. It takes time to find evidence of torture and persecution. When you read this report, I encourage you to try to imagine navigating the complex legal steps in the asylum process. Then, imagine doing it without an attorney, a nearly impossible task as extensive research and data has shown.1
This report comes at a critical moment when increased migration to the U.S. southern border and intense political pressure are pushing lawmakers to process asylum seekers faster. Faster can be accomplished, but it must also be fairer. If the system is fair, people meriting protection will receive it and those not eligible can and must depart. Toward that end, this report includes several recommendations that improve asylum processing so that it is both fair and more efficient. It is our hope that this report will contribute to policy reforms that are grounded in the realities of asylum law and the system that implements it.
Jeremy McKinney President, American Immigration Lawyers Association (AILA)
i Quotes by Lara throughout the report are from an interview conducted primarily in Spanish and then translated into English.
High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 3 AILA Doc. No. 23061202. (Posted 6/14/23)
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Executive summary and recommendations
The heightened levels of migration worldwide are drawing intense political and media attention to the United States’ southern border, including radical calls for blocking access to asylum seekers that would undo longstanding American humanitarian principles. More balanced, smarter approaches are available. In fact, since taking office, the Biden Administration has implemented several such policies, including the scale-up of resources to screen asylum seekers at the border and the expansion of existing legal pathways for people to obtain protection.
Unfortunately, the President is also accelerating and truncating the asylum system in an attempt to speed up the process with policies like the 2022 asylum processing rule and the dedicated dockets program.ii AILA has forcefully opposed these recent policies because they are restricting or blocking asylum access and, as a result, deeply compromising the integrity and fairness of the U.S. system.iii
This report on the asylum process draws principally upon the expertise of AILA’s membership of more than 16,000 immigration attorneys and law professors nationwide who provided more than 300 detailed responses to a survey about the critical steps and time required to prepare an asylum case.iv The report’s principal conclusion is that the minimum time required for an attorney to properly prepare an asylum case is 50 to 75 hours. While this estimate accounts for some complications, an asylum case can take much longer. For example, the attorney may need to find evidence of torture in a country that is still wracked by political violence or devote extensive interview time to obtain sensitive information from the asylum applicant while they are still suffering from trauma. See Appendix I.
The government can greatly increase the efficiency of the asylum process by increasing agency resources and capacity and by eliminating existing delays within the system. Some of those steps are being taken, but further action is urgently needed . AILA recommends the Biden Administration use a systemwide, all-of-government approach to implement a range of solutions that will improve asylum processing and the management of migration at the U.S. southern border.
America needs an asylum system that is in line with the nation’s commitments to protect asylum seekers and ensure a fair legal process while also meeting the urgent demand for greater efficiency and capacity. The country’s immigration system must be able to quickly identify who has a legitimate claim for humanitarian protection and who does not. Those not eligible should be required to depart. But imposing strict, arbitrary timelines for asylum that do not allow for adequate preparation will result in eligible asylum seekers being denied protection and sent back to face persecution or death.
ii The asylum processing rule is formally known as “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.” New enrollment is currently paused as the Biden administration focuses on the transition away from Title 42. For recent updates, see Featured Issue: Asylum and Credible Fear Interim Final Rule, AILA, https://www.aila.org/advo-media/issues/featured-issue-asylum-and-credible-fear#:~:text=The%20 interim%20final%20rule%20%E2%80%9CProcedures,for%20individuals%20in%20expedited%20removal. See infra at Biden administration fast-tracked programs limit the opportunity to access counsel for more information on the asylum processing rule and the dedicated docket program.
iii E.g., AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing IFR, May 26, 2022, https:// www.aila.org/infonet/comments-on-credible-fear-screening; AILA Joins Legal Service & Mental Health Providers in Letter to Administration Expressing Grave Concerns over the “Dedicated Docket”, Oct. 5, 2022, https://www.aila.org/advo-media/ aila-correspondence/2022/letter-to-administration-expressing-grave-concerns; AILA and the Council Submit Comments on Circumvention of Lawful Pathways Proposed Rule, Mar. 26, 2023, https://www.aila.org/infonet/comments-on-circumvention- of-lawful-pathways.
iv See Appendix II.
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Ultimately, systemwide changes can only be accomplished through congressional action to appropriate the funding required to meet these systemic demands. After three decades of inaction, Congress must pass immigration laws that ensure America’s immigration system is ready for the future.
Key findings
The basic steps of preparing an asylum application takes an estimated minimum of 50 to 75 hours. This work cannot be done in one continuous period; instead, it is carried out over the course of several months. Cases with significant complexity can take far more time than this estimate.
Most asylum cases are not straightforward. Complicating factors that add time to an asylum case may include detention, past trauma experienced by the applicant, language barriers, and procuring evidence from foreign countries or expert witnesses such as medical testimony.
It is extremely difficult for an asylum seeker represented by counsel to sufficiently develop their asylum application within the mandatory deadlines established in the May 2022 asylum processing rule or the expedited family court “dedicated dockets.” AILA recommendations Ensure asylum timelines do not undermine fairness
When setting asylum processing deadlines, allow adequate time for an asylum seeker to obtain counsel and for the attorney to prepare for the case. Timelines should not rush trauma survivors who may need more time to recount their experience. Reasonable continuances should be allowed to obtain an attorney or for attorney preparation.
Waive or exempt asylum seekers from deadlines if the reason the deadline was not met is outside of their control.
Do not hold asylum seekers to the same evidentiary standards when they are subject to expedited adjudication timelines, such as the shortened deadlines of the 2022 asylum processing rule. Reduce government delays and inefficiency
Establish uniform policies, centralized systems, and appropriate information sharing between immigration agencies. Agencies should centralize and digitize address changes across all agencies and simplify access to a noncitizen’s immigration record. These steps will enhance communication and data sharing, which will in turn reduce backlogs, avoid delays, and increase efficiency and fairness.
Reduce the immigration court backlog. Executive Office for Immigration Review (EOIR) should continue expanding initiatives to remove cases from the docket or facilitate the resolution of cases through pretrial conferencing. Immigration judges should administratively close or terminate appropriate cases, such as those eligible for a benefit with U.S. Citizenship and Immigration Service (USCIS).2
Do not expend finite prosecutorial resources on cases that can be resolved more expeditiously. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) attorneys should engage in pretrial negotiations and exercise prosecutorial discretion to avoid unnecessary litigation. High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 5 AILA Doc. No. 23061202. (Posted 6/14/23)
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Legal access and representation improve fairness and government efficiency
Ensure asylum seekers and other migrants being processed rapidly at the U.S. southern border have access to legal information, advice, and full counsel during credible fear interviews (CFIs), Customs and Border Protection (CBP) inspections, and immigration court proceedings.
Congress should Fund the Department of Justice (DOJ) to provide legal representation for all immigrants. Everyone needs access to an attorney to provide legal advice and information prior to any hearings, including the CFI. Congress should appropriate DOJ funding to provide full legal representation to those in removal proceedings who cannot afford it.
Ensure access to counsel in all detention facilities. Detention facilities must be held accountable to policies that ensure attorneys have reliable confidential contact visits with clients, as well as access to free and confidential phone calls and video conferences. The government must monitor access to counsel at ICE facilities and impose penalties for violations of standards. Reduce immigration detention
• Reduce immigration detention. Detention delays asylum cases because it creates barriers to obtaining counsel and makes case preparation far more difficult. The Department of Homeland Security (DHS) should reduce its use of immigration detention.
Improve the asylum process
The Biden administration should publish the long-awaited regulation on particular social group (PSG) asylum cases. On February 20, 2021, President Biden issued an executive order to promulgate this regulation by November 17, 2021,3 but it has not been published. A regulation would aid in consistency of application of asylum law and would reduce USCIS referrals to immigration court.
Increase transparency in adjudications by making DHS’s asylum officer training materials publicly available.
Establish an interagency task force to develop a trauma-informed adjudication system. Experts in development, mental health, welfare, and trauma science should all be involved in this process. A trauma-informed adjudication process will help ensure accurate adjudications in the first instance, which in turn will decrease appeals.
Fund additional asylum officers. Congress should appropriate funds to increase the capacity of USCIS to adjudicate asylum applications.
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Download and read the complete report and view accompanying video at the above link!
Amy R. Grenier ESQ Immigration Attorney Washington, D.C. PHOTO: Linkedin
Here’s one of my favorite comments on Linkedin from an all-star member of the NDPA, Amy R. Grenier:
A year ago, I wanted to cite something in a regulatory comment, but the cite I needed didn’t exist yet.
Today, the American Immigration Lawyers Association released a report on asylum timelines, High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better. The report is based on a survey of over 300 asylum attorneys about how much time it takes to prepare an asylum application, and what complications add significant time. High-Stakes Asylum also includes recommendations on how to inject efficiency into the existing asylum process and ensure the integrity of a system that has life-and-death consequences.
Three decades ago, when I was practicing business immigration at Jones Day, we also did a robust pro bono Immigration Court BIA practice in which I played an advisory role. Even then, we allocated a minimum of 100 hours of attorney/paralegal prep time for an asylum case in Immigration Court and 40 hours for a BIA appeal.
And, at that time, the system probably wasn’t as “intentionally user unfriendly” as it is now. On some occasions, we were responding to requests for pro bono representation from Immigration Judges who believed that without representation certain previously unrepresented detained cases would “be lost and linger in the system forever.” That was long before 2 million case backlogs!
Representation is essential for due process at EOIR! This fundamental truth is neither new nor is it “rocket science!” That politicians of both parties and Article III Judges have swept this truth under the carpet doesn’t make it less true! If lives of persons who didn’t have the bad fortune to be immigrants were at issue, this intentionally due-process-denying system would have been held unconstitutional by the Supremes decades ago!
Unfortunately, A.G. Garland has fashioned a “highly, unnecessarily, and intentionally user unfriendly system” that actually discourages and impedes pro bono and low bono representation.
Immigration experts and long-suffering advocates have become weary of AG Garland’s “above the fray” attitude and substandard performance on human rights and equal justice in America! PHOTO: Wikipedia Commons
Even worse, he and his subordinates have failed miserably to “fully leverage” the amazing VIISTA Villanova program for training more highly-qualified non-attorney “accredited representatives” to rapidly close the representation gap throughout the nation. The asylum litigation “training modules” put together by VIISTA founder Professor Michele Pistone, with help from the National Institute for Trial Advocacy (“NITA”) puts EOIR/DOJ/DHS asylum training to shame!
Professor Michele Pistone Villanova Law — The founder of VIISTA Villanova, brilliant lawyer, inspirational leader, teacher, scholar, social justice mavan, why isn’t she running and reforming EOIR? Why is Garland afraid of a proven “creative disrupter” driven 100% by a commitment to equal justice for all?
Incredibly, the Biden Administration “blew off” recommendations by experts that Professor Pistone or one of her colleagues be recruited to “shake up” EOIR and radically reform and improve training in asylum and other forms of protection.
Lack of fundamental expertise and private sector expedience representing asylum seekers is a key reason why EOIR under Garland continues to “wander in the wilderness” of legal dysfunction with no way out! So unnecessary! So damaging to democracy!
Jeremy McKinney, Esquire Greensboro, NC AILA President
Many thanks to Jeremy McKinney, Greg Chen, and others who worked on the AILA report. Cite it! Use it! Demand that Congress heed it! Use it to force justice into Garland’s failed, dysfunctional, and unfair “Clown Courts!”🤡
Melissa del Bosque reports for the Border Chronicle:
Both parties have doubled down on inhumane border policies, but it’s the GOP that is taking it to new depths in its race to the bottom over who can be more deliberately cruel.
It’s like some kind of grotesque Last Supper: In a publicity photo from last week’s press conference, Texas governor Greg Abbott is seated at the center of a long table surrounded by grim-faced White men, most of them elderly, in various postures of mental agita. Next to them is a large illustration on an easel board titled “Live Test of Attempt to Breach.” It shows a man with an inner tube (presumably an asylum seeker) clinging to a floating red buoy. Hundreds of these buoys Abbott announced, will be deployed on the Rio Grande near the town of Eagle Pass. The barrier will be 1,000 feet long, and its netting will extend underwater, catching anyone who tries to swim under it.
“We don’t want anyone to get hurt,” said Steve McCraw, head of Texas’s Department of Public Safety, at the June 9 press conference. “We want to prevent people from drowning.”
The floating buoy barrier will persuade people not to cross, he said. “This is to deter them from even coming in the water.”
But we already know this isn’t true. Both McCraw and Abbott were parroting the same strategy, known as “prevention through deterrence,” introduced in the mid-1990s during the Clinton administration. It has turned our southern border into a graveyard. After nearly three decades of militarized border buildup that has pushed people into increasingly deadly terrain like the Sonoran Desert, people haven’t stopped coming. But thousands of them have died.
As Todd [Miller] recently wrote in his poignant piece about this deadly strategy, “On the cusp of summer, we can predict like clockwork that hundreds of otherwise healthy people will be dead by summer’s end. It has an aura of premeditated murder.”
These floating barriers, which, according to the manufacturer’s website, can also be reinforced with spikes, will only contribute to an already-skyrocketing death count. Abbott’s latest announcement has already spurred many human rights organizations to sound a warning. Jenn Budd, a former Border Patrol agent and now border human rights activist, along with fellow Texas-based activist Marianna Treviño Wright, released a bilingual video warning migrants of the deadly new policy.
All-in on Fascism
Abbott has long toyed with the idea of running for president. While it increasingly looks less likely that he will, Florida governor Ron DeSantis has already joined the fray. And he’s all-in on fascism. When he’s not treating fellow human beings like FedEx packages, he’s modeling himself after Viktor Orbán, Hungary’s authoritarian leader, and darling of the CPAC circuit. Last week DeSantis released “B-roll” of Florida state troopers surveying the Texas-Mexico border as they participate in Abbott’s Operation Lone Star. I suspect they didn’t include any audio in the B-roll because it would humanize the children and adults waving to the troopers from the Mexican side of the river, detracting from DeSantis’s threatening narrative of an invading army.
DeSantis’s campaign video begins with a Texas DPS officer, who sports an official DPS seal on his tactical face covering, unlocking a tiny metal door surrounded by razor wire. This is next-level border security theater, as comical as it is utterly surreal and tragic. Several other Republican-led states are also, once again, sending troopers and National Guard soldiers to the Texas border—as they did before the 2022 midterm—to wage war against the Biden White House before the election. Unfortunately, it’s border communities and migrants who are caught in the crossfire.
For many years, I’ve documented border theater as it has ebbed and flowed depending on the political tide. But as I’ve been documenting in The Border Chronicle, we’ve reached an altogether different and deadly era of disinformation, with the GOP parroting invasion and great replacement rhetoric, and increasingly dehumanizing people, spurring mass shootings and political violence. This behavior is championed by a growing right-wing media ecosystem which in turn promotes more anti-democratic and extremist behavior.
I spoke with Sergio Muñoz, vice president of Media Matters for America, a nonprofit that has tracked conservative media for nearly two decades. I quoted Muñoz in a recent article, and wanted to include my full Q&A with him here. As Muñoz warns, the U.S. is in a “dangerous moment” as it approaches the 2024 presidential election.
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Read Melissa’s full report, including the interview with Sergio Muñoz at the above link.
Yes, “deterrence gimmicks” directed at refugees have a decades-long proven record of failure. You can just look at the efforts of the EU to “bar the door” to refugees from Africa and the Middle
East.
The boats continue to come, some sink, people drown. But, not surprisingly to those other than the “overprivileged and elitist White power class” like Abbott and DeSantis, desperate individuals forced from their homes are going continue to come — at any cost, even their own health, safety, and sometime lives.
Most would rather “risk it all” on a shot — even a very long shot — at stability and a real life, rather than facing the certainty of wasting away without hope, freedom, or opportunity and having to watch the same thing happening to younger generations. Some, against all odds, continue to believe that rich, powerfu Western countries like the U.S. will eventually live up to their solemn legal obligations to protect refugees and asylum seekers!
While, as Melissa cogently points out, these inane, yet deadly, gimmicks do kill migrants, they don’t do so at a high enough rate to materially affect the flow. It’s just causing pain, suffering, and sometimes death for their own perverted sake.
Apparently, neo-fascists like Abbott, DeSantis, Trump, and their “role model” Stephen Miller just “get off on” watching others suffer unnecessarily. Bullies and cowards often get a kick out of observing the effects of their handiwork.
Meanwhile, the public money being wasted on these cruel, yet ultimately ineffective stunts (remember former AZ Gov. Ducey’s shipping containers arrayed and then disassembled at government expense), could much, much better be spent on providing representation, organized resettlement, and humanitarian assistance to asylum seekers.
As Melissa says, the GOP’s (and sometimes, unfortunately the Dems’) “uber-enforcement/deterrence gimmicks are “as comical as [they are] utterly surreal and tragic.” It’s time for decent Americans to “just say no” to these horrible folks and their failed and deadly policies of dehumanization and degradation!
As former immigration judges and former members of the Board, we submit this amicus brief to ask the Northern District of California to strike down the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The Rule, which came into effect in the immediate aftermath of Title 42’s sunset and which applies to non-Mexican asylum-seekers at the U.S.-Mexico border, automatically forecloses a migrant’s asylum claim unless the person (i) arrives at an official port of entry having secured an immigration appointment through a complex mobile application, (ii) receives advance permission to travel to the U.S., or (iii) comes to the U.S. after applying for and being denied asylum in a transit country. Absent proof one of these narrow exceptions or a medical or other emergency, asylum-seekers will be unable to seek asylum regardless of whether they have compelling claims to relief.
Immigration judges serve an important role in the Congressionally-mandated process for reviewing the claims of asylum-seekers at or near the U.S.-Mexico border. This decades-old process, known as Expedited Removal, has its own flaws, but it does provide a credible fear review system that provides important protections for those seeking asylum. Specifically, and as explained in more detail below, the Expedited Removal statute requires that asylum-seekers, regardless of how they entered the United States, be interviewed by asylum officers to determine whether they have a credible fear of persecution and therefore can proceed to a full asylum hearing under Section 240 of the INA. The statute further mandates that immigration judges provide de novo review of asylum officers’ negative credible fear determinations, and thus make the final decision about whether an asylum-seeker at the U.S.-Mexico border has shown a credible fear of persecution and will have the opportunity to progress to a full asylum hearing.
The Rule unlawfully undermines this statutory scheme. First, the Rule creates clear bars to asylum for most migrants, disingenuously labeling these as “rebuttable presumptions.” As a result, almost all claims for asylum are pretermitted without the full asylum credible fear interviews required by the statutory Expedited Removal process. Rather, the credible fear interview will be turned into a “reasonable fear” interview to determine whether the migrant can proceed to claim withholding of
removal or protection under the Convention Against Torture (“CAT”), lesser forms of relief compared to asylum. Asylum-seekers are thus denied the opportunity to obtain full review of their asylum credible fear claims, including the de novo review by an immigration judge as required by Section 235 of the INA, 8 C.F.R. § 235.3. Instead, asylum-seekers may only seek review from an immigration judge as to the application of the narrow exceptions under the Rule or the lesser claims for relief. Accordingly, the Rule significantly and unlawfully curtails the role of immigration judges in asylum adjudication as set forth in the INA.
Moreover, the idea that the Rule heightens efficiency in the asylum adjudication process is an illusion. When an asylum-seeker is denied the ability to provide a credible fear of persecution, Expedited Removal still requires a review of potentially more complicated claims for withholding of removal and protection under the CAT. Thus, immigration judges on the one hand find their hands tied, unable to review the claims of bona fide asylum-seekers, but on the other hand are required to delve into the standards of withholding and CAT. Thus, the Rule turns a straightforward (and efficient) asylum credible fear review into a three-part analysis: the Rule exceptions, withholding, and CAT.
Finally, by creating exclusions that deny asylum to refugees who appear at the U.S.-Mexico border, the Rule violates U.S. obligations under the 1951 Refugee Convention. Longstanding canons of statutory and regulatory construction require consideration of international law; in this case, the Rule violates both the INA and international law.
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Read the complete brief skillfully prepared by our friend Ashley Vinson Crawford and her team at Akin Gump!
Ashley Vinson Crawford, ESQ Partner Akin Gump San Francisco, CA “Honorary Knightess of the Round Table” PHOTO: Akin Gump
Rather than heeding our comments and those of many other experts, the Administration proceeded with its wrong-headed changes, rammed through a farcically truncated “comment period” that showed that process was little but a sham. This is the exact kind of mockery of justice and prejudgement that one might have expected from the Trump Administration. It’s also one of the many things concerning immigration that Biden and Harris “ran against” in 2020 but lacked the will and integrity to achieve in practice.
Notably, we’re not the only group of “concerned experts” weighing in against the Biden Administration’s ill-advised rules. The union representing the USCIS Asylum Officers were among the many expert organizations and individuals filing in support of the plaintiffs in East Bay Santuary. See, e.g., Asylum Officers, Ex-Judges Back Suit On Biden Asylum Rule – Law360.
Among other choice commentary, the Asylum Officers argue that the rule “effectively eliminates asylum” at the southern border! What on earth is a Dem Administration doing betraying due process and the rule of law in favor of the most scurrilous type of nativist anti-asylum pandering — stuff right out of the “Stephen Miller playbook?” Who would have thought that we would get rid of Miller & company in 2020, yet still have to deal with his ghost in a Biden/Harris Administration that clearly and beyond any reasonable doubt has “lost its way” on immigration, human rights, racial justice, and the rule of law?
As Round Table spokesperson “Sir Jeffrey” Chase says, “We are in very good company!” Too bad that the Biden Administration has wandered off course into the morally vacant, disingenuous “never-never land” of anti-asylum, racially-driven nativism! It certainly did not have to be this way had effective, principled, expert leadership taken hold at the beginning.
With clothing, food and shelter, church groups aid people flown to California on chartered flights arranged by Florida officials, which many in this state call a political stunt
By Mackenzie Mays
SACRAMENTO — On the same day that Florida Gov. Ron DeSantis’ administration took responsibility for sending dozens of migrants seeking asylum to California, the volunteers and organizers inside the Trinity Episcopal Cathedral of Sacramento refused to say the Republican politician’s name.
Instead, they wanted to talk about the 36 men and women they’ve cared for this week, who they say were left exhausted, confused and afraid at the doorstep of a local church in what California officials have called a political stunt.
Gabby Trejo, executive director of Sacramento Area Congregations Together, said the migrants she took to church with her on Sunday — some who had walked thousands of miles over the course of several months from Venezuela to the U.S. — reached into their pockets to offer a dollar for the collection plate.
“I said, no, you need it more than our church does today. But they didn’t care. They still put it in the plate,” Trejo said. “In that moment, our new neighbors showed me what it means for them to also be able to contribute to our community.”
Cecila Flores, who has supported the migrants since the first group arrived by plane on Friday, wiped away tears at a news conference on Tuesday.
In their 20s and 30s, most of the migrants are the first in their families to make it to the U.S. and are eager to work, she said. Some are married. One brought along a dog named Gieco.
When she asks them simple questions like what they want for dinner, they are timid. Anything is fine, they always say.
“It’s been years since I’ve been able to pick my own clothes,” one man told Flores, an organizer at Sacramento ACT, after a volunteer took him to the thrift store.
The identities of the migrants, who also came from countries including Colombia and Guatemala, remain undisclosed as the California Department of Justice investigates the incident. Meanwhile, Democratic Gov. Gavin Newsom has threatened conservative presidential hopeful DeSantis with kidnapping charges.
Organizers said Tuesday that the migrants had arrived at the Texas border, where they were met by people claiming to be with a relocation program, promising housing and jobs. They were then shuttled to New Mexico and flown to Sacramento on a chartered plane.
. . . .
The people working on the ground with them in Sacramento said that the migrants had no idea where they were headed. Their “American dream” quickly became “a nightmare,” Trejo said, adding they were deceived.
Along with city and county officials, local church leaders and nonprofits have scrambled to help them.
. . . .
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Where is the leadership, competence, and “good government” the Biden Administration promised during the 2020 campaign?
California needs affordable housing and workers, particularly in agriculture, child care, and health care. Migrants can help with this. They are eager to contribute.
The key is to get them represented, through the system with grants of asylum or other protection that many are eligible for, work authorized, and on their way to durable legal status.
Stunts like De Santis’s, misplaced “deterrence,” lack of creativity, and poor leadership by the Administration and Dems in DC are wasting resources and time that could be used to solve problems, not aggravate them!
Once again, the Biden Administration has left the job of making the flawed immigration system work to individuals without sufficient Federal support or coordination. Yet, they disdain the advice and counsel of these “grass roots experts” in favor of mindless, half-baked deterrence gimmicks derived from Stephen Miller and other GOP neo-fascists! Why?
Due process and fundamental fairness are elusive in DHS’s “New American Gulag!” Administration policy wonks absent themselves from the border to avoid witnessing the unnecessary human trauma and suffering their illegal and ill-advised policies cause. PHOTO: Public Realm
Dear Secretary Mayorkas, Director Jaddou, Acting Commissioner Miller, and Director Neal,
We, the undersigned 112 civil, human rights, faith-based, and immigration groups write to express our deep concern with your return to the Trump-era policy of forcing asylum seekers to explain by phone the life-threatening harms they’re fleeing mere hours after arriving in the U.S., while being held in Customs and Border Protection (CBP) detention, and essentially cut off from legal help. In March 2023, nearly 100 organizations reminded President Biden of his commitment to end the Trump policy, urging him not to rush back to the broken, anti-asylum policies that this administration rightly terminated. We are incredibly disappointed that this administration has chosen to move forward, full steam ahead. We call on the Biden administration to immediately cease conducting credible fear interviews (CFIs) in CBP custody and instead ensure that asylum seekers are given full and fair access to the U.S. asylum system, including meaningful access to counsel.
Since taking effect, President Biden’s iteration of this policy has produced systemic due process barriers similar to its predecessor policy, with asylum seekers being rushed through CFIs and immigration judge reviews with little to no access to counsel. President Biden’s asylum ban, another iteration of Trump-era policies, is further exacerbating these mass due process violations and fueling the systematic deportation of individuals who may qualify for protection in the U.S., in violation of the non-derogable principle of non-refoulement.
The Biden administration is effectively denying asylum seekers any meaningful chance to consult with counsel and rushing them through a sham process to quickly deport them, including by:
Conducting CFIs shortly upon an individual’s arrival in CBP detention without providing or allowing them to access the time and resources needed to recover from their journey or the harm they survived;
Barring attorneys from entering the CBP facilities where asylum seekers are jailed and CFIs are conducted;
Truncating the minimum time period individuals have to attempt to telephonically consult with an attorney to a mere 24 hours after receiving notice of the credible fear process. This change is especially absurd given that new policies, such as the asylum ban and the return of certain nationalities to Mexico, expand the content about which an individual may need to consult an attorney;
Failing to provide asylum seekers hard copies of the M-444 Information About Credible Fear Interview in contravention of 8 CFR § 208.30(d)(2), hard copies of the list of pro bono legal service providers, and advanced written notice of the CFI;
Heightening the standard for requests to reschedule a CFI to a showing of “extraordinary circumstances,” likely making it nearly impossible for asylum seekers to reschedule a CFI in order to secure representation or prepare for the interview;
Restricting asylum seekers’ access to telephones, in contravention of 8 CFR § 208.30(d)(4), and denying them writing utensils, in effect forcing them to attempt to commit key information to memory, including their attorney’s contact information and information about the CFI process;
Requiring an applicant’s signature on the Form G-28 for attorneys to enter an appearance with the Asylum Office, which often cannot be timely obtained by attorneys who are remotely representing jailed clients, thereby obstructing their ability to obtain information about their clients;
Conducting CFIs, including outside of normal business hours and on weekends, without the attorney of record present, in contravention of 8 CFR § 208.30(d)(4);
Failing to provide advance written notice to attorneys of record prior to a scheduled CFI or immigration court review hearing, including by not updating the EOIR Cases and Appeals System (ECAS) to reflect upcoming court hearings;
Failing to afford individuals time and opportunity following negative fear determinations to consult with counsel who could advise them about their rights and the review process;
Failing to serve asylum seekers and their attorneys with their record of credible fear determinations in contravention of 8 CFR § 208.30(g)(1);
Blocking attorneys from entering an appearance with the immigration court, including by not docketing immigration court review cases in a timely manner, thereby preventing them from representing their clients;
Refusing to permit attorneys to actively participate in immigration court reviews and rejecting evidence submitted in advance of the immigration court review; and
Conducting Immigration Judge reviews of negative credible fear findings without the attorney of record present.
Forcing asylum seekers in CBP detention to proceed with their CFIs while facing nearly insurmountable barriers to legal counsel –while also subjecting them to an asylum ban – upends any notion of fairness. Instead, it is an evisceration of our asylum system. The installation of new phone booths, which you claim differentiate Biden’s program from the Trump policy, fails entirely to address any of these systemic obstacles. Additionally, the Biden administration’s decision to conduct immigration court reviews immediately following these lightning-fast CFIs, while the individual is still in CBP custody, unacceptably further heightens the due process barriers asylum seekers must overcome to avoid summary deportation.
We have also received troubling reports of the terrible conditions that asylum seekers face in CBP custody while awaiting their CFIs, in line with years of reports of abusive, dehumanizing, and sometimes life-threatening conditions that include medical neglect, inedible food and water, and lack of access to showers and other basic hygiene. It has been less than a month since the unforgivable death of eight-year-old Anadith Tanay Reyes Álvarez, who was jailed in one of the CBP facilities where your administration conducts CFIs. We are horrified that the administration has systematized the detention of asylum seekers in these same deadly conditions while rushing them through fear screenings.
Notably, the administration has a choice: it is not required to use expedited removal and has the authority to refer people for full asylum hearings, rather than subjecting them to rushed CFIs in dehumanizing CBP detention while cut off from legal help. Sacrificing fairness for speed by jailing people fleeing persecution and torture, subjecting them to a ban on asylum, and forcing them to proceed with a life-or-death interview without meaningful access to counsel must not be this administration’s response to people wishing to exercise their fundamental human right to seek asylum. These policies punish people seeking safety and prioritize political optics over the administration’s stated aim of working to “restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.”
Respectfully,
Acacia Center for Justice
Afghans For A Better Tomorrow
African Human Rights Coalition
Al Otro Lado
Alianza Americas
Alliance of Californians for Community Empowerment, ACCE
American Friends Service Committee (AFSC)
American Gateways
American Immigration Council
Americans for Immigrant Justice (AI Justice)
Amnesty International USA
Angry Tias and Abuelas
Asian Americans Advancing Justice | AAJC
Asylum Seeker Advocacy Project (ASAP)
Bend the Arc: Jewish Action
Black Alliance for Just Immigration (BAJI)
Bridges Faith Initiative
Border Kindness
Capital Area Immigrants’ Rights Coalition
Center for Constitutional Rights
Center for Gender & Refugee Studies
Center for Victims of Torture
Central American Resource Center of Northern CA – CARECEN SF
Church World Service
Cleveland Jobs with Justice
Coalition for Humane Immigrant Rights (CHIRLA)
Community Action Board of Santa Cruz County, Inc. (CAB)
Community Legal Services in East Palo Alto (CLSEPA)
Diocesan Migrant and Refugee Services Inc.
Dorcas International Institute of RI
Fellowship Southwest
First Focus on Children
Florence Immigrant & Refugee Rights Project
Franciscan Action Network
Freedom Network USA
Greater Boston Legal Services
Harvard Immigration and Refugee Clinical Program
HIAS
Houston Immigration Legal Services Collaborative
Human Rights First
Human Rights Initiative of North Texas
Immigrant Defenders Law Center
Immigrant Legal Resource Center
Immigration Equality
Immigration Law & Justice Network
Immigration Hub
Innovation Law Lab
Interfaith-RISE
Interfaith Welcome Coalition – San Antonio
International Center of Kentucky
International Institute of Los Angeles
International Institute of New England
International Refugee Assistance Project (IRAP)
ISLA: Immigration Services and Legal Advocacy
JAMAAT – Jews and Muslims and Allies Acting Together
Jewish Family Service of San Diego
Jewish Vocational Service of Kansas City
Just Neighbors
Justice in Motion
Kino Border Initiative
Las Americas Immigrant Advocacy Center
Latino Community Foundation
Lawyers for Good Government
Legal Aid Justice Center
Lost and Found Church of the Nazarene
Lutheran Immigration and Refugee Services
Mariposa Legal, program of COMMON Foundation
Massachusetts Law Reform Institute
Metrowest Legal Services
Minnestoa Freedom Fund
MLPB
Mujeres Unidas y Activas
Muslim Advocates
National Employment Law Project
National Immigrant Justice Center
National Immigration Law Center
National Network for Immigrant and Refugee Rights
National Partnership for New Americans
NCLR (National Center for Lesbian Rights)
Northeastern University School of Law Immigrant Justice Clinic
Open Immigration Legal Services
Oromo Center for Civil and Political Rights
Oxfam America
Phoenix Legal Action Network
Physicians for Human Rights
Public Law Center
RAICES
Refugees International
Resource Center Matamoros / Asylum Seeker Network of Support, Inc.
Robert F. Kennedy Human Rights
Rocky Mountain Immigrant Advocacy Network
SIREN, Services Immigrant Rights and Education Network
Southwest Asylum & Migration Institute (“SAMI”)
Student Clinic for Immigrant Justice
Survivors of Torture, International
Team Brownsville
Tennessee Justice for Our Neighbors
The Advocates for Human Rights
The Catholic Legal Immigration Network, Inc.
The Reformed Church of Highland Park
UC Davis Immigration Law Clinic
Unitarian Universalists for Social Justice
Unitarian Universalist Service Committee
United Sikhs
U.S. Committee for Refugees and Immigrants (USCRI)
USAHello
Vera Institute of Justice
Washington Office on Latin America
Wind of the Spirit Immigrant Resource Center
Witness at the Border
Women’s Refugee Commission
Young Center for Immigrant Children’s Rights
*****************************
Interesting way for a Dem Administration to treat human rights, due process, and fundamental fairness! Remarkable rejection of values that got them elected! Is “dismissive dissing” of the views of the “folks who brought you to the dance” really the key to future success?
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Toczylowski is executive director of Immigrant Defenders Law Center, a nonprofit legal organization working along the U.S.-Mexico border and throughout Southern California, and lives in Los Angeles.
The lifting of Title 42 — the policy that shut down the U.S. asylum system for three years — should have been an inflection point leading to a more humane and orderly system for processing asylum seekers. Instead, the Biden administration doubled down on the politics of exclusion, introducing new restrictive measures, including an asylum ban, that keep asylum out of reach for those who need protection the most.
. . . .
When asylum seekers are finally able to ask for protection, they are often met not with compassion but with cruelty. Just days ago in San Ysidro, I saw mothers with children sleeping on dirt while in Customs and Border Protection custody, sharing one port-a-potty for more than 500 people. Good Samaritans handed out supplies because CBP did not provide sufficient food, water or medicine.
. . . .
President Biden has perpetuated these failed deterrence policies despite his campaign promises to restore humanity at our border. The administration has turned its back on asylum seekers. These are real people. They deserve our protection. They deserve to be safe.
. . . .
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Read Lindsay’s complete op-ed at the link.
These cruel, unnecessary, cowardly, and illegal policies are a disgrace to America and an embarrassment to the Democratic Party!
You don’t have to be either an immigration expert or very smart to recognize that desperate individuals trying to turn themselves in to CBP agents at or near the border, to exercise their legal rights to seek protection, are NOT going to be a meaningful source of fentanyl smuggling. That trade is controlled by cartels who basically smuggle product through ports of entry in large quantities disguised as or mingled with legitimate commercial commerce.
Indeed, the preoccupation of CBP with improperly “deterring,” “discouraging,” and “punishing” legal asylum seekers not only empowers cartels, but significantly detracts from actual law enforcement against drug smugglers. And, the millions of dollars being misappropriated and wasted by Junkman and others on bogus National Guard deployments could much better and more appropriately be spent on humanitarian aid, coordinated, orderly resettlement programs for asylum seekers and asylees, and securing them legal representation to aid in the fair and timely processing of asylum claims.
However, the repetition of bogus and deliberately fabricated narratives like the “Junkman’s” latest wasteful stunt creates a “guilt by repetition” syndrome that feeds and enables the racist agenda of today’s GOP as well as the spineless “rollover” response of the Biden Administration, and, sadly, some other so-called Democrats.
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
Executive Director Opening Plenary Remarks CLINIC Convening 2023
May 17, 2023
Good afternoon, dear friends. My name is Anna Gallagher and I have the honor of leading CLINIC as executive director. It is such a pleasure to be here with you all as we officially begin our first in-person Convening since 2019.
Looking out at the sea of faces in front of me, I am filled with gratitude to finally be able to come together to engage with one another, to listen, learn and gather strength for the work ahead in support of our immigrant brothers and sisters.
Even just being in your presence I feel a sense of renewed hope and energy. I am so looking forward to the next few days, and I am certain that you will be reignited to take on the important work ahead.
In a moment I will welcome our wonderful panel of Affiliate experts, but right now I want to take a moment to recognize this moment we’re facing and my hopes for this year’s CLINIC Convening.
You all, of all people, know that immigrant communities are facing truly unprecedented challenges – and I do not use that word, unprecedented, lightly.
With the lifting of Title 42, and the camps of men, women and children along the border desperate to find welcome on the other side; the proposed USCIS fee increases which threaten to put immigration benefits out of reach for many; the newly announced delays for foreign-born religious workers and special immigrant juveniles; and, perhaps above all, our warming planet and the outbreaks of violence which force many more people to migrate around the world – these are extremely challenging times for migrants in our country and around the world.
Several months ago, the New York Times featured an op-ed that has stuck with me, entitled, “The Rich World Has a Shockingly High Tolerance for Cruelty.”
It was about how rich nations are more willing than ever to let migrants languish at their borders in sub-human conditions rather than create safe pathways for migration or address the conditions causing people to flee.
It was about how the promises that nations made after World War II to respect the dignity and rights of those who are fleeing have been eroded and now, on a practical level, forgotten.
When I read this article, in my mind I was transported back to the time I spent in North Africa several years ago, working with migrants as a representative of Jesuit Refugee Services.
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I interviewed migrants who had traveled for 18 months or more to try and find safety in these countries bordering Europe. I got to know some of the migrants, who called me “grandma” – a term of endearment, as my hair was grey.
While I was talking to some of them, they showed me their hands, which were scarred with wounds. When I asked them what happened, they said their hands were repeatedly pierced while climbing barbed wire to get through to safety.
Hearing this, my heart broke – as it has many times over the years.
The idea that we are using barbed wire to keep out our fellow human beings is inconceivable, yet true. Our immigrant brothers and sisters stand at our gates, begging for our aid, and we build barbed wire fences that pierce their hands.
Many wealthy nations are founded on a concept of all human beings being equal in dignity, but we do not act like it.
As we gather in Arizona, I know we are all mindful that these kinds of camps that the op-ed author is speaking of are just several hours away on the border. We also know that immigrant communities’ dignity is denied not only in these camps, but all over the country in the various places we’ve come from.
We must be clear, this is not an “other side of the world problem,” it is our problem. It affects all of us, in our integrity as people of faith and conscience, and as a reflection of our society.
And yet today, as I recall that New York Times op-ed, and the sense of frustration and despair I felt while reading it, I feel a surge of hope.
I want you to look around the room. Look at your neighbor to your left and right. YOU are the hope that fills my heart, and YOU are the hope that reignites me in our work.
As we gather here today, I am in a room full of people who DO act like all human beings are equal. Those who spend their precious time – often too much of their time, working long hours – trying to advance the truth that every person is precious, valuable, and deserving of a safe and dignified life.
That’s why being in your presence gives me such hope. I am reminded that the CLINIC network is full of holy people.
That is why our gathering here together, and throughout this week, is so powerful: we are, to borrow the words of Bishop Seitz of El Paso, working to be a “creative counterexample” to the culture of fear and hostility, to be a network that is slowly creating a new culture of solidarity and hospitality.
At CLINIC, we also are bolstered by our faith that we do not do this hard work alone. The spirit of God is inspiring us and pushing us forward, giving us strength and magnifying our efforts, especially when we are overwhelmed by the need in front of us.
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Our faith also acts as a mirror for us, forcing us to keep evaluating whether we are truly reflecting the gospel truth of God’s concern for all people.
To maintain this faith, and to maintain the energy to be this creative counterexample, we need one another. Our network is sustained through the support, advice, and solidarity we demonstrate to one another.
Throughout the next few days, we will take the time to step back, to reflect on our work and learn and share new strategies, information, and tips for the very practical day-to-day work of supporting immigrant clients and communities.
We know that this practical work – the forms, the bureaucracy, the nitty-gritty details – changes and saves lives. So how well we can do it matters, which is why we gather to learn and grow.
We also gather to enjoy one another – to laugh, share stories, and reconnect with beloved colleagues and friends.
So I also hope that over the next few days you will have some fun!
Thank you for coming here to CLINIC Convening and for your dedication to this work. I am so honored to be alongside all of you this week, and all days.
Now, I am pleased to introduce our panelists for our opening plenary, Preparing for the Lifting of Title 42: Key Insights from our Network. When we decided on “reunited and reignited” for our theme this year, we knew we wanted to do something different for our opening conversation.
This “Network Fireside Chat” will be an opportunity to highlight the work done by our network throughout the United States. During this conversation, you’ll hear how Affiliates in three distinct geographical regions are rising to meet the needs of our immigrant and refugee brothers and sisters – especially during this increased time of uncertainty.
From the Border region, Joel Enriquez-Cazarez will share about the work of Jewish Family Service of San Diego.
As a transit city, Carolina Rivera will share how Catholic Charities of Dallas assists our immigrant brothers and sisters.
And Yer Vang from Catholic Charities Archdiocese of Dubuque will give an interior city perspective of welcome.
Now please join me in welcoming our keynote panelists to the stage…
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Thanks, my friend, for a lifetime of service to due process, fundamental fairness, and social justice, and for speaking out as the “powers that be” and the “powers that wannabe” go into cowardly retreat and hide in fear from the needs and rights of humanity!
Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
