"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Professor Stephen Yale-Loehr Cornell LawMuzaffar Chishti Senior Fellow Migration Policy Institute PHOTO: MPI
The Migrant Surge: What’s Different About It This Time?
Please join us on November 7, 2023, from 12:15 p.m. to 1:15 p.m. in Myron Taylor Hall G85 of Cornell Law School for a lunchtime seminar given by our guest Muzaffar Chishti and moderated by Stephen Yale-Loehr.
Join Mr. Chishti and Professor Yale-Loehr as they discuss the history of recent migrant flows to the U.S. border, the current migrant surge at the border, the impact on cities and states beyond the border, and possible impacts on federal immigration policy.
Muzaffar Chishti is a Senior Fellow at the non-partisan Migration Policy Institute (MPI) and Director of MPI’s office at New York University School of Law. He received his LLM from Cornell Law School in 1975.
Steve Yale-Loehr teaches immigration and asylum law at Cornell Law School as Professor of Immigration Practice and is of counsel at Miller Mayer in Ithaca, New York.
Can’t make it to our event in-person? You can attend virtually!
The Title 42 farce instituted by Trump, under false pretenses, to unjustly suspend asylum laws has expired. But, the Biden Administration has come up with its own scofflaw regulations and policies intended to “meter” the flow of legal asylum seekers at ports of entry and to improperly “punish” those who exercise their legal rights by entering and turning themselves in to CBP. Biden’s BIA continues to churn out unrealistic hyper-technical asylum precedents (that actually fly in the face of precedents like Cardoza-Fonseca and Mogharrabi) and wrong, anti-asylum decisions intended to “deter and discourage” asylum seekers from applying and to make it unnecessarily difficult, frustrating, and time consuming for pro bono lawyers to represent them!
Contrary to the nativist myths, the U.S. does NOT bear the brunt of increased forced migration! Even in the Western Hemisphere, Colombia has many times more displaced Venezuelans than the U.S. Indeed, the U.S. experience, no matter how much it’s hyped or distorted by nativists and shallow media alarmists, is only a relatively modest slice of the pie. Over three quarters of the world’s forced migrants end up in low and middle income countries outside the U.S. https://www.unhcr.org/sites/default/files/2023-06/global-trends-report-2022.pdf. Yet, you would never know that from listening to the apocalyptic narrative of GOP nativists and their Dem “fellow travelers!”
Years of cruelty, dehumanization, fortification, imprisonment, prosecution, endangerment, harsh laws, family separations, racist rhetoric, illegal turn backs, and summary deportations of asylum seekers in the U.S. and at the border have demonstrably, and quite predictably, failed to stop or materially deter forced migration stemming from causes outside of U.S. legal policies. Yet, most of our “dialogue” about the U.S. border and immigration start with the bogus assumption that closing the border and unilaterally suspending due process and domestic and international legal obligations will effectively create “Fortress America” where no migrant will dare to tread!
A real discussion of the border and migration must reject nativist myths, racist tropes, and media alarmism by starting with the truth. That is:
Human migration is a real and inevitable worldwide phenominon;
No one nation-state can unilaterally stop or prevent human migration;
Because of climate change and political instability in the world, forced migration is likely to increase in the foreseeable future;
Seeking asylum is a basic legal and human right;
The U.S. will have to accept more migrants, whether legally (preferable)or extralegally (the alternative).
Only by “ditching” and getting beyond nativist myths can we develop solutions that will deal realistically and humanely with human migration. I’m hoping that these two knowledgeable migration and legal experts can get us beyond the myths and to a discussion of practical, achievable actions!
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
. . . .
“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
***********
Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
Many Americans today worry that our nation is losing its national identity. Yet the core of that identity is not the whiteness of our skin or our religion or our ethnicity.
It is the ideals we share, the good we hold in common.
That common good is a set of shared commitments. To the rule of law. To democracy. To tolerance of our differences. To equal political rights and equal opportunity. To participating in our civic life. To sacrificing for the ideals we hold in common. To upholding the truth.
We cannot have a functioning society without these shared commitments. Without a shared sense of common good, there can be no “we” to begin with.
If we are losing our national identity, it is because we are losing our sense of the common good. This is what must be restored.
As I’ve argued in these essays, recovering our common good depends on several things:
It depends on establishing a new ethic of leadership based on trusteeship. Leaders must be judged not by whether they score a “win” for their side, but whether they strengthen democratic institutions and increase public trust.
It depends on honoring those who have invested in the common good, and holding accountable those who have exploited it for their own selfish ends.
It requires that we understand — and educate our children about — what we owe one another as members of the same society. Instead of focusing solely on the rights of citizenship, we need also to focus on the duties of citizenship.
And it requires a renewed commitment to truth.
Some of you may feel such a quest to be hopeless. The era we are living in offers too many illustrations of greed, narcissism, brutality, and hatefulness.
I, however, firmly believe this quest is not hopeless.
Almost every day, I witness or hear of the compassion and generosity of ordinary Americans. Their actions rarely make headlines, but they constitute much of our daily life together.
The challenge is to turn all this into a new public spiritedness extending to the highest reaches in the land — a public morality that strengthens our democracy, makes our economy work for everyone, and revives trust in the major institutions of the nation.
The moral fiber of our society has been weakened but it has not been destroyed.
We can recover the rule of law and preserve our democratic institutions by taking a more active role in politics.
We can fight against all forms of bigotry. We can strengthen the bonds that connect us to one another by reaching out to one another. We can help resurrect civility by acting more civilly toward those with whom we disagree.
We can protect the truth by using facts and logic to combat lies.
We can help restore the common good by striving for it and showing others it’s worth the effort.
We have never been a perfect union. Our finest moments have been when we sought to live up to our shared ideals.
I worked for Robert F. Kennedy a half-century ago when the common good was better understood. Resurrecting it may take another half-century, or more.
But as the theologian Reinhold Niebuhr once said, “Nothing that is worth doing can be achieved in our lifetime; therefore we must be saved by hope. Nothing which is true or beautiful or good makes complete sense in any immediate context of history.”
Thank you for joining me on this journey. I hope you’ve found these essays useful and even on occasion inspiring. I hope you’ll join me in carrying forward the fight for the common good.
***
Subscribers to this newsletter are keeping it going. If you are able, please consider a paid or gift subscription. And we always appreciate your sharing our content with others and leaving your thoughts in the comments.
*****************************
Kelly Bouchard Staff Writer Portland Press Herald PHOTO: Linkedin
Despite the uncertainty, resettlement agencies in Maine are pushing ahead, preparing to welcome as many refugees as possible. To increase their chances of finding affordable apartments, they’re building a network of landlords willing to rent to newcomers and expanding resettlement efforts beyond Greater Portland, Lewiston-Auburn and Augusta-Waterville to Bangor and Brunswick, Ouattara said.
“We can settle people within 100 miles of Lewiston-Auburn,” said Rilwan Osman, executive director of Maine Immigrant & Refugee Services in Lewiston. “We have settled some families in Augusta, and we are exploring other communities.”
The State Refugee Advisory Council held four quarterly meetings last year to connect and support various community representatives in government, public safety, schools, social services and health care, Ouattara said.
“There are resources that are available from the federal government to assist communities that accept refugees,” he said.
At least half of the new arrivals last year had family ties in Maine, Ouattara said, while the other half were “free cases” that could be resettled more widely in the state but would require more support from agency staff. Transportation continues to be a challenge for many newcomers.
“The public transit system in Maine is still in development, so that can be isolating in some communities,” he said.
Helping refugees find jobs is a top priority for resettlement agencies, which provide financial assistance and case management support for up to 90 days after arrival and limited case management and employment services for up to 60 months.
“All the refugees that are coming have permission to work as soon as they are able,” Osman said. “Some have English skills, some don’t. If they have the necessary language skills, they can at least start entry-level work within 90 days.”
One refugee who is eager to get to work is Ahmed, a recent arrival from Somalia who also declined to give his last name. Ahmed, 58, attended a cultural orientation session Wednesday at the JCA. Through an interpreter, Ahmed said he has been reunited with his wife and six children after being separated from them for 21 years.
He also said he wants to be a good citizen and a taxpayer.
“I’m so grateful to be here,” he said. “My dream is to settle in and get work at a job in my skill range. I am a welder and I would like to work in the same industry.”
Staff Photographer Brianna Soukup contributed to this report.
“America is a beautiful country and has a lot to offer the world and the people who come here, and so does Portland,” said Ali, who came to the United States from Ghana more than two decades ago.
Portland’s five mayoral candidates may be more aligned on this issue than any other. They all fundamentally see asylum seekers as an asset to the city, and they all want to see the wait time before they can work made much shorter. They all also feel a little bit helpless.
For years, Portland has welcomed these immigrants, who often undertake dangerous journeys to get here and then go through an arduous, sometimes yearslong process to get visas and work authorization.
. . . .
Zarro said that if it should turn out to be too big a legal risk to offer asylum seekers paid work before they got federal work authorization, he would like to build a more robust job training program so they would be ready to start work in local businesses as soon as their work authorization comes though.
“We have people who are coming here to better their lives and to better their communities. Maine stands to benefit significantly,” he said.
All the candidates also are keenly aware that Portland is in need of more young workers.
“We’re an aging state without enough people to fill the workforce,” Costa said.
***********************
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
Abstract of Austin Kocher, PhD’s article “Welcoming the stranger in Trump’s America: Notes on the everyday processes of constructing and enduring sanctuary:”
Geographers have begun to explore the concept of ‘immigrant welcome’ as a framework for understanding the tension between spontaneous social support for immigrants and refugees and their subsequent restriction and criminalization by states. Overlooked in the emerging discourse on immigrant welcome is the rich literature in feminist geography that views the everyday practices of endurance, care and social reproduction as essential to, but often hidden within, more traditional, political and economic analyses of power. By focusing on the everyday practices of welcome within sanctuary church activism, I argue for more attention to the energy-intense work that is often excluded from official media and academic accounts, yet which is essential to understanding what makes welcome function or fail. I draw upon one in-depth case study of a sanctuary church in Ohio, where a woman has been living for a year and a half in public defiance of her deportation order. In addition to contextualizing this specific case within the broader policy and immigrant rights landscape, I focus on the spatial, material and relational processes that participants implemented to construct a ‘welcoming’ environment as well as observe the ways in which welcome fails to live up to its imagined potential. The case study provides important grounded insights into the material, relational and emotional processes of enduring sanctuary as a form of resistance to the US deportation regime and enduring sanctuary itself as an intensive socio-spatial form of existence.
Read more about each of these inspiring efforts at the respective links above.
Compare what could be if folks put aside hate and worked together to solve human problems with the pathetic, totally selfish, inept, inane, yet existentially dangerous, “Clown Show” 🤡 in the GOP House Conference egged on by their “leader” — congenital liar, bully, insurrectionist buffoon, and criminal defendant Donald Trump.🤮
What’s missing is more dynamic, courageous, truth-based national leadership on immigration and human rights issues from Dems (although, to be fair, the bipartisan Maine delegation — and many Maine Republicans — appear to “get it”)! But, fortunately, that void hasn’t stopped members of the NDPA from “soldiering on” for the commn good and a better America!
A life saved is a life saved! Sometimes, we just have to focus on the daily victories we can achieve!
The fact remains that the U.S. government spent a lot of money to build new barriers to keep migrants out and did not get the result it wanted.
. . . .
Trump used a lot of hyperbole to promote his pet project and was prone to describe the barrier as the personification of his presidency. He took a keen interest in its aesthetic appearance and design features, often urging aides to make it look as imposing as possible. He told supporters his wall would be “impenetrable.” He also said Mexico would pay for it (Mexico did not).
U.S. Customs and Border Protection officials didn’t make such claims and weren’t surprised when criminal smuggling organizations in Mexico began sawing through the steel bars — using ordinary power tools — almost immediately.
The border wall has been hacked through thousands of times since then, so often that the government has had to deploy welding crews full-time to shore up the structural integrity of the barrier. Smugglers have figured out a cheaper and even easier way to defeat it, fashioning cheap, disposable ladders out of scrap wood or metal rebar. They send migrants and drug couriers up and over the top, then use ropes to lower them down the other side. Experienced fence-jumpers have developed a technique using the steel bars like fire poles, sliding down onto the U.S. side in seconds.
. . . .
Dozens of migrants have been killed and hospitalized after falling from the structure, often with horrific spinal trauma and broken legs. Immigrant advocates also say the barriers force migrants toward more remote desert areas, contributing to more deaths from heat stroke and exposure. CBP reported 568 migrant deaths along the border during the 2021 fiscal year, the most recent for which data is available — nearly twice the amount of the previous year.
The border wall has a devastating toll on animals too, advocates say. The steel bars have essentially cut in half the habitat of animal species, in some cases cutting off their access to water and grazing areas. Trail cameras set up by researchers have shown pumas, bobcats and other large mammals blocked and searching fruitlessly for some way to get through.
The expensive futility of the wall and border barriers might pale in comparison with the human damage to both migrants and our nation’s soul, according to this interview with border physicians by Melissa Del Bosque in The Border Chronicle:
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Dr. Brian Elmore is an emergency-medicine resident physician in El Paso, Texas. He’s also the cofounder of Clínica Hope, a free clinic for migrants in Ciudad Juárez, Mexico, which he runs with the nonprofit Hope Border Institute. Elmore frequently treats patients who have been injured by razor wire or fallen from the border wall that divides El Paso and Ciudad Juárez. He’s coined a term for these injuries: political pathologies. “These are normally healthy people, most of them young, who have been injured because of political decisions made thousands of miles away,” he says. “These are the political repercussions of the border.”
. . . .
That’s interesting that you use this term political pathologies. Is that a term you coined yourself?
It’s what I’ve started calling these injuries that otherwise healthy folks are receiving. These are mostly young people in their 20s, 30s, and sometimes kids, who out of sheer desperation decided to climb the wall or cross the river or desert. Other than for decisions that politicians made thousands of miles away to fortify the border, and make it as dangerous to cross as possible, they wouldn’t have these injuries. It’s really tragic.
. . . .
I’ve treated quite a few border wall falls. I’ve become used to this. But last week, I had a child who came in with multiple lacerations from barbed wire. She came in with her family, and they were all cut up from barbed wire. It’s jarring to see this, especially when it’s a kid, who’s innocent and has no idea what’s going on.
I started talking to the dad, and he told me they were from Venezuela. He said they’d heard a rumor in Ciudad Juárez that officials were letting Venezuelans cross outside of ports of entry. So a huge crowd showed up to present themselves to U.S. border officials [and ask for asylum]. Everyone became frustrated and irritated when they discovered that it wasn’t true.
And this family were pressed up against the barbed wire by the crowd, and they couldn’t go back. The only way for them to move was forward. So they started crawling under the barbed wire. This is the mother, father, the child, who is about 10, and an infant.
So, I’m stitching them up, making small talk because sewing up lacerations takes time and you’re face-to-face, and I’m talking to the dad and he lifts his shirt, and I see that he has a thoracotomy scar. When you perform a thoracotomy, it’s a last-ditch Hail Mary effort to save somebody’s life. The majority die after a thoracotomy. It’s when you crack open a chest because there’s either aortic bleeding or a penetrating injury to the heart. He told me he’d been stabbed and robbed in Caracas. And it was stunning to see his scar and to know that he’d survived. And the thing is, this is the second thoracotomy scar I’ve seen on a Venezuelan patient I’ve treated. This really reinforced for me the constant levels of violence people are facing. I feel like Americans have very little context for what’s going on in that country and how desperate things are there.
. . . .
There’s a very characteristic injury. It’s called a pilon fracture. It’s a lower-extremity kind of ankle fracture, very debilitating. And it’s often associated with a lumbar spinal fracture. Sometimes the bone has broken through the flesh and may require surgery. A lot of times they’ll be fitted with a device that keeps the bone in place while the swelling goes down, so they can get surgery. They’re then discharged to a migrant shelter in town while they wait for surgery.
. . . .
You see on the news, all these headlines, “migration crisis” and “invasion.” And that’s not what people in El Paso are experiencing or how they’re responding to it. They’re responding to the humanitarian crisis with compassion. You see people at shelters volunteering their time, offering to cook, and giving donations. I think the people of El Paso are amazing in the way they’ve responded. As opposed to how the rest of the country is just totally freaking out. I think El Paso is the most inspiring place to be and to practice.
*********************
You can read the full articles (and listen to Nick’s) at the above links.
Just think what could happen if we stopped “doubling down on failure,” eschewed dehumanizing treatment of asylum seekers, and devoted some of the time, money, and effort we spend on dehumanization, militarization, and deterrence to building better systems for fairly and timely screening, identifying, and resettling refugees.
“Pie in the sky?” Hardly! Undoubtedly, these measures could be carried out far less expensively than further, ultimately fruitless, border militarization and enhanced cruelty being pushed by the GOP and some Dems. And, they would be more effective in bringing “law and order” to the border and our overall legal system.
Fanned by alarmist narratives being spread by folks like Adams and Hochul (no, Governor, 8 billion people aren’t going to descend on your state — in fact, the U.S. has a “refugee/1,000 population ratio” far below that of many smaller, much poorer countries), and the mainstream media’s insatiable need for a “trumped-up invasion narrative” to create headlines and sound bites, I suspect that the Administration and Dem politicos might be prepared to “throw asylum seekers under the bus” to reach an agreement with the GOP to keep the Government open. After all, asylum seekers don’t vote, and their advocates have historically been good “team players” who go to bat for the Dem Party despite having their contributions, energy, and ideas consistently undervalued, even dissed, once elections are over.
Don’t do it Dems!Giving in to the righty nativists will NOT solve anything, nor will abandoning values help you in the next election! Indeed, the Administration could set more “world records” for exclusions, deportations, denials, imprisonments, wall-building, enforcement hiring, “rocket dockets,” and the GOP would still spout the same “open borders” myth, and the media would give it equal, or greater, time. They largely ignore HRF and other experts who actually understand the border, migration, and have practical, humane, if less inflammatory or drastic, solutions to offer.
The mainstream media seems to have endless time for folks like Trump, Gaetz, Jordan, Haley, Ramaswamy, etc., who have little to contribute to solving pressing national problems. Why aren’t they talking to the folks who understand migration, asylum seekers, the border, and the legal framework? Why aren’t they “headlining” and publicizing reasonable, humane, values-based solutions rather than promoting narratives of doom, hopelessness, and expensive, often illegal, cruelty as the only “solutions?” There actually have been some bipartisan proposals for addressing the border while respecting and even enhancing the rights of asylum seekers. See, e.g.,https://immigrationcourtside.com/2023/02/14/🇺🇸courtside-politics-rep-hillary-scholten-d-mi-is-part-of-a-bipartisan-group-of-new-house-members-reaching-across-the-aisle-in-an-attempt-to-govern-for-the-public-good/. But, you sure wouldn’t know it from listening to the so-called “mainstreamers!”
Here’s another fascinating thing. Humane, sensible, legally compliant, cost effective solutions to migration issues proposed by experts, many of whom are immersed in the reality on a daily basis, are often dismissed, if even mentioned, as “impractical,” “unrealistic,” “idealistic,” “costly.” On the other hand, when politicos, think tankers, reporters, commenters, profiteers, many largely removed from the human trauma of the border situation, present costly, proven to fail, draconian, often illegal measures directed against asylum seekers, the same prejorative, dismissive terms are seldom used.
Indeed, the worse, crueler, and more hare-brained a scheme is, the more likely it is to be mischaracterized as a “realistic response” to a hyped-up emergency! Somehow, wanton cruelty and end-running legal obligations are packaged as a “practical necessities,” while creative ideas on how to solve problems and make the current laws work are summarily brushed aside, often without meaningful analysis and discussion.
For six years, I have represented adults, children and families who have fled persecution in their home countries and sought protection in the United States. My clients have traveled thousands of miles from countries including Nicaragua, Venezuela, Cameroon, Togo, Haiti, El Salvador, Honduras and Guatemala, arriving at the U.S.-Mexico border to seek asylum. They leave their homes, communities and culture because the pain and risks of fleeing pale in comparison to the dangers they will face if they stay.
I have seen the difference between the outcomes for clients who have meaningful access to legal counsel and due process, who are able to safely settle into a community as they pursue their cases, and people who are deprived of these basic human rights. But over the past several months there has been an onslaught of Biden administration policies designed with one goal: to rapidly deport people. These programs block people from a fair asylum process, and I am deeply concerned that thousands of individuals fleeing persecution will never be able to tell their stories and have a chance at safety in our country.
For the clients I have helped win asylum, the key to my representation was consistent and thorough communication. Through multiple sessions, we built a rapport, I provided them with information about their legal rights and the immigration system and they provided me with the details of their lives. These details formed the basis of their legal claims, which I assisted them in presenting to the immigration judge. The judge decided whether they could stay in the United States based on an individualized determination of their future risk of harm if deported.
When one of my clients and her six-year-old daughter completed their two-month journey from El Salvador to Texas, Customs and Border Protection detained them for three days and then released them with notice of their obligation to appear in immigration court. They made their way to the Midwest, where they sought legal representation.
At the National Immigrant Justice Center, my colleagues and I worked with the mother over several months to document her experiences of being raped, impregnated, beaten and locked up at home by her older relative. Finally safe in the United States, she started therapy and began working at a restaurant to support herself and her daughter. At her final immigration court hearing, she bravely testified about her traumatic past, and the immigration judge granted both mother and daughter asylum.
. . . .
***************************
Read the rest of Stephanie’s article at the link.
On the basis of reports like this, there is reason to believe that not only should many more of the individuals allowed to enter the U.S. be granted asylum under a properly functioning system, but that many of those barred, rejected, and deported are erroneously being returned to life-threatening situations.
This, of course, directly contradicts the restrictionist myths peddled by most GOP politicos and even some Dems. It also contradicts the fear-mongering and scare tactics employed by the right-wing media that has unfortunately spilled over into the so-called “mainstream media.”
The real “border crisis/tragedy” is the lack of a legitimate, well-functioning, fair, efficient system to carry out our legal obligations to asylum seekers under both domestic and international laws. Calls for more “deterrents, cruelty, walls, harsh imprisonment, lawless deportations, and truncations of already-routinely-violated rights” are not going to solve the real problems! Indeed, they are likely to make things even worse!
In Immigration Court, the number one “internal” problem has probably been aimless docket reshuffling, where cases are repeatedly re-arranged depending on the priorities of different administrations. Other problems include inefficient Master Calendar Hearings and pre-trial conferences, insufficient guidance from the Board of Immigration Appeals, which leads to inconsistent decision-making, and not enough staff members to support the Immigration Judges. In addition, there is a shortage of DHS attorneys (the prosecutors), and those attorneys have insufficient power (or willingness) to resolve cases or narrow contested issues prior to the final hearing.
What does all this mean for asylum seekers? In court, cases are still being heard, though I expect that delays will increase and more cases will be rescheduled. We can also expect that more non-priority cases (i.e., people who do not have criminal or security issues) will be dismissed based on prosecutorial discretion. At the Asylum Office, nothing seems to be moving. You can try to expedite your case and if that fails, file a writ of mandamus to force the agency to adjudicate your application. Otherwise, I would not expect any progress any time soon.
Finally, we might as well end on a positive note. Having recognized that most asylum applicants will be stuck waiting for years and years, the government has recently increased the validity period of asylum-pending work permits from two years to five years. For asylum applicants, this change will save money and reduce stress, and for USCIS, it will reduce their workload and allow them to focus on other applications. I guess the lesson here is that every cloud has a silver lining–even a mushroom cloud.
***************************
Read Jason’s full analysis at the link.
As Jason acknowledges, some of the drivers are “world events” over which — contrary to GOP and other nativist blather, often fanned by the so-called “mainstream media” — receiving countries like the U.S. have relatively little effective control. This is particularly true in the short run.
We’ve notoriously tried “taking over” countries in conflict. It never works! Moreover, it can eventually create additional refugee situations rather than resolving them. See, e.g., Afghanistan.
Nor are border barriers, razor wire, dungeons, arbitrary deportations, stripping asylum rights, xenophobic rhetoric, criminal prosecutions, killing some migrants by forcing ever more dangerous crossings, and a host of other unilateral measures pushed primarily by the GOP (but also by some Dems) going to change the actions of Maduro, Ortega, Putin, Diaz-Canel or any of the other authoritarian autocrats whose policies drive folks to flee their native lands and seek refuge abroad.
So, rather than wringing hands about what we can’t change, why not change that which is under our control? Long overdue, common-sense reforms and improvements in asylum adjudication, reception, and resettlement, some mentioned by Jason, could be achieved.
They won’t necessarily halt the flow of refugees, nor are they guaranteed to eliminate backlogs, particularly in the short run. But, they will reduce the backlogs, contribute mightily to a better U.S. legal system, and comply with our international and domestic legal obligations. That, in and of itself, appears to be a worthy and achievable goal. But, nobody in charge seems to be interested in anything but “quick fixes” — which aren’t really “fixes” at all, since they have all been tried and failed.
When Carolina’s captors arrived at dawn to pull her out of the stash house in the Mexican border city of Reynosa in late May, she thought they were going to force her to call her family in Venezuela again to beg them to pay $2,000 ransom.
Instead, one of the men shoved her onto a broken-down bus parked outside and raped her, she told Reuters. “It’s the saddest, most horrible thing that can happen to a person,” Carolina said.
A migrant advocate who assisted Carolina after the kidnapping, who spoke to Reuters on condition of anonymity due to security concerns, confirmed all the details of her account.
The attack came amid an increase in sexual violence against migrants in the border cities of Reynosa and Matamoros, both major transit routes for immigrants seeking to enter the U.S., according to data from the Mexican government and humanitarian groups, as well as interviews with eight sexual assault survivors and more than a dozen local aid workers.
“The inhumane way smugglers abuse, extort, and perpetrate violence against migrants for profit is criminal and morally reprehensible,” U.S. Department of Homeland Security (DHS) spokesperson Luis Miranda said in response to questions about the rise in reported rapes.
Criminal investigations into the rape of foreign nationals, excluding Americans, were the highest on record in the two cities this year, according to state data from 2014 to 2023 obtained by Reuters through freedom of information requests.
The U.S. State Department considers Tamaulipas, where the two cities are located, to be the most dangerous state along the U.S.-Mexico border.
. . . .
A Venezuelan migrant said he was kidnapped in May in Reynosa by a cartel while traveling to the border for his confirmed CBP One appointment. He couldn’t raise the full $800 ransom, so he was forced to work for two months to pay off the remaining $200, he said.
Two other migrants who said they were held at the house during the same time period confirmed the man was forced to work against his will, and that they heard female migrants being raped.
On the nights the Venezuelan man was tasked with standing guard over the other migrants, he said he watched the cartel members ask the man in charge of the house for permission to rape the women of their choosing.
He said the answer was always the same: “Take her.”
***************************
Read the full article at the link.
Walls, detention, eliminating the right to asylum aren’t going to solve this. But, solving it doesn’tseem to be the objective. Blaming the victims is a lot easier than treating them as human beings.
As my friend Debi Sanders (who alerted me to this report) said: “Terrifying!”Yup! 🤯🏴☠️
Yet, just a few days earlier, in deciding to extend TPS to nearly a half million Venezuelans in the US, that same DHS found:
Overview
Venezuela continues to face a severe humanitarian emergency due to a political and economic crisis, as well as human rights violations and abuses and high levels of crime and violence, that impacts access to food, medicine, healthcare, water, electricity, and fuel, and has led to high levels of poverty. Additionally, Venezuela has recently experienced heavy rainfall in the spring and summer of 2023 which triggered flooding and landslides. Given the current conditions in Venezuela, these issues contribute to the country’s existing challenges.
Venezuela is experiencing “an unprecedented political, economic, and humanitarian crisis.” [5] “Venezuela is suffering one of the worst humanitarian crises in the history of the Western Hemisphere,” which has been characterized by “[h]igh levels of poverty, food insecurity, malnutrition, and infant mortality, together with frequent electricity outages and the collapse of health infrastructure.” [6] Though there were some positive developments in Venezuela in 2022 “as the economy stabilized and showed signs of economic growth,” the effects of these changes were not felt across the Venezuelan population and did not offset the impact of the large-scale economic contraction which resulted in significant humanitarian challenges that continue today and will take time to address.[7]
Political Repression and Human Rights
The Maduro regime has closed off channels for political dissent, restricting enjoyment of civil liberties and “prosecuting perceived opponents without regard for due process.” [8] The UN Human Rights Council’s Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela (IIFFM) found in its September 2022 report, “Venezuela’s military and civilian intelligence agencies function as well-coordinated and effective structures in the implementation of a plan” to “repress dissent.” [9]
Crime and Insecurity
Venezuela has one of the highest rates of violent deaths in the world.[10] Additionally, “Venezuelans face physical insecurity and violence from several sources, including irregular armed groups, security forces, and organized gangs.” [11] Corruption in Venezuela exacerbates insecurity. InSight Crime has reported that “criminal groups and corrupt state actors together form a hybrid state that combines governance with criminality, and where illegal armed groups act at the service of the state, while criminal networks form within it.” [12] Human trafficking remains a serious concern. Traffickers exploit and subject Venezuelans, including those fleeing the country, to egregious forms of exploitation, including sex trafficking and forced labor.[13] Members of non-state armed groups that operate in the country with impunity, subject Venezuelans to forced labor and forced criminality, and recruit or use child soldiers.[14]
Economic Collapse
Since 2014, Venezuela has suffered from an “economic recession marked by hyperinflation, shortages of basic goods and a collapse in public services such as electricity and water.” [15] Recently, Venezuela’s economy has shown some signs of recovery; however, it is still in a precarious condition.[16] In a report covering the period from May 2022 through April 2023, the Office of the High Commissioner for Human Rights (OHCHR) noted that while economic growth which occurred in 2022 “would bring hope for improved economic prospects, persistent challenges and other factors continued to negatively affect essential public services, transport, education, and health.” [17]
In its annual report covering 2022, the Inter-American Commission on Human Rights (IACHR) noted “the high rates of poverty and inequality in the country, in which there are estimates that more than 90% of the population lives in poverty.” [18] The same report stated that “as of March 2022, HumVenezuela estimated that 94.5% of the population would not have sufficient income to cover items such as food, housing, health, education, transportation and clothing.” [19]
Health Crisis
Various sources have referred to severe problems with health systems in Venezuela, including the IACHR, Human Rights Watch, and the Congressional Research Service (CRS).[20] Per The Associated Press, Venezuela’s “health care system crumbled long before” the start of the COVID–19 pandemic.[21] Likewise, in its 2022 annual report, the IACHR acknowledged that while the COVID–19 pandemic “has had significant impacts on the health sector and the population, the serious affectations of the system preceded the health emergency.” [22] Elaborating on this topic, the IACHR identified “shortages of medicines, supplies, materials and medical treatment” as of 2018, and that the “situation has been worsening since 2014, and it is important to highlight that the health system has reportedly collapsed due to its persistent precariousness, which would have been exacerbated by the pandemic.” [23]
According to OHCHR, health centers in Venezuela “report structural underfunding and understaffing resulting in for example, regular blackouts and water shortages.” [24] In its report on the humanitarian situation in Venezuela in 2022, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) noted that “[h]ealth services continue to be affected by insufficient water and sanitation conditions and the lack of electricity supply in facilities.” [25] Similarly, Human Rights Watch stated in its annual report covering 2022 that “[p]ower and water outages at healthcare centers—and emigration of healthcare workers—were further weakening operational capacity.” [26] Furthermore, the IACHR has reported that “98% of the hospitals in the country lack medicines, electrical plants and water, as well as failures in laboratories, reagents and wards. As a result, it is estimated that only between 3 and 10% of the hospitals have medical and surgical material to solve medical circumstances.” [27]
Food Insecurity
In a humanitarian response plan published in 2023, the Food and Agriculture Organization of the United Nations (FAO) identified food insecurity as “the most pressing challenge for the population.” [28] Human Rights Watch stated in its annual report covering 2022 that HumVenezuela reported in March 2022 that “most Venezuelans face difficulties in accessing food, with 10.9 million undernourished or chronically hungry. Some 4.3 million are deprived of food, sometimes going days without eating.” [29] Moreover, the IACHR noted in its 2022 annual report that “32% of children live in a situation of chronic malnutrition.” [30]
Heavy Rains and Flooding
Since May 26, 2023, as hurricane season began, Venezuela has experienced heavy rains which resulted in flooding that affected several areas of the country.[31] According to ACAPS, “Between June and July there have been 19 tropical waves, that have brought heavy rains, floods and landslides across the country.” [32] As of July 11, 2023, the meteorological situation in Venezuela indicated “that rainfall and resulting damages are expected to be more severe than previous years.” [33] Reports of the damage caused by the heavy rains include 5,100 people affected with damage to houses and blockages in the drainage system in the state of Portuguesa.[34] In another area—Delta Amacuro state—around 7,500 people are affected by the 2023 floods.[35]
In summary, extraordinary and temporary conditions continue to prevent Venezuelan nationals from returning in safety due to a severe humanitarian emergency which has resulted in food insecurity and the inability to access adequate medicine, healthcare, water, electricity, and fuel. Additionally, human rights violations and abuses, high levels of poverty, high levels of crime and violence, and heavy rains and flooding prevent Venezuelan nationals from returning in safety and permitting Venezuelan noncitizens to remain in the United States temporarily would not be contrary to the interests of the United States.
Based on this review and after consultation with appropriate U.S. Government agencies, the Secretary has determined that:
• The conditions supporting Venezuela’s designation for TPS continue to be met. See INA sec. 244(b)(3)(A) and (C), 8 U.S.C. 1254a(b)(3)(A) and (C).
• There continues to be extraordinary and temporary conditions in Venezuela that prevent Venezuelan nationals (or individuals having no nationality who last habitually resided in Venezuela) from returning to Venezuela in safety, and it is not contrary to the national interest of the United States to permit Venezuelan TPS beneficiaries to remain in the United States temporarily. See INA sec. 244(b)(1)(C), 8 U.S.C. 1254a(b)(1)(C).
• The existing designation of Venezuela for TPS (Venezuela 2021) should be extended for an 18-month period, beginning on March 11, 2024 and ending on September 10, 2025. See INA sec. 244(b)(3)(C), 8 U.S.C. 1254a(b)(3)(C).
• Due to the conditions described above, Venezuela should be redesignated for TPS beginning on October 3, 2023, and ending on April 2, 2025. See INA sec. 244(b)(1)(C) and (b)(2), 8 U.S.C. 1254a(b)(1)(C) and (b)(2).
For the redesignation, the Secretary has determined that TPS applicants must demonstrate that they have continuously resided in the United States since July 31, 2023.
Initial TPS applicants under the redesignation must demonstrate that they have been continuously physically present in the United States since October 3, 2023, the effective date of the redesignation of Venezuela for TPS.
There are approximately 243,000 current Venezuela TPS beneficiaries who are eligible to re-register for TPS under the extension.
It is estimated that approximately 472,000 additional individuals may be eligible for TPS under the redesignation of Venezuela. This population includes Venezuelan nationals in the United States in nonimmigrant status or without immigration status.
Does this sound like a country that will “ensure orderly, safe and legal repatriation?” Duh!
As for the DHS attempt to “blame the victims” for not taking advantage of legal opportunities, the legal right to apply for asylum in the U.S. attaches at the border to ANYONE “who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status.”INA, section 208.
With huge backlogs at both the Asylum Office and EOIR, and some problematic adjudicators, judges, administrators, and poor precedents, just how could hundreds of thousands of legal removals take place without huge systemic changes that to date the Administration has failed to make at either DHS or EOIR?Sounds like a prescription for massive legal and human rights violations!☠️
Yes, we’re going to hear chants of “we can’t take them all” from all sides. But, the truth that few acknowledge is that we haven’t and won’t be “taking them all” — not by a long shot! Of the more than 7 million who have fled the Maduro regime in Venezuela, only approximately 10% (about 750,000) have come to the U.S.!https://www.bbc.com/news/world-us-canada-66875264. The vast, vast majority — approximately 90% — have taken refuge elsewhere in Latin American, in poorer countries far less able than the U.S. to absorb them! But, hey, when does truth and reality ever enter into the U.S. political debate on immigration?
Immigrant Defenders help humanity at the border, treating fellow humans with dignity, respect, kindness. PHOTO: Linkedin
Immigrant Defenders posted this on LinkedIn:
Customs and Border Protection (CBP) continues to inhumanely release asylum seekers onto San Diego streets, often with little more than the clothes on their backs. #TeamImmDef, Lindsay Toczylowski, Margaret Cargioli, Melissa Shepard and Jesús Contreras Barajas, continues to join various non-profit organizations, grassroots groups and community members to receive asylum seekers with respect and help them reach their friends and family members all over the United States. Our dedicated team, in collaboration with our remarkable San Diego-based partners, is tirelessly working to continue to welcome migrants with dignity. We have welcomed more than 8500 asylum seekers in 13 days.
We need all levels of government, local and federal, to provide infrastructure and financial resources to help NGOs welcome with dignity.
If you want to help, please consider donating airline miles to Miles4Migrants. Please see the link in our bio to donate. Or donate directly to ImmDef at Immdef.org/donate.
Scandalously, rather than looking to solve this humanitarian crisis, the GOP seeks to punish victims of Government dereliction of duty and their humanitarian responders for asserting well-established legal rights! Talk about a party of lawlessness! Sadly, it’s no surprise since they owe homage to an insurrectionist “leader” who is a notorious fraudster, con man, and criminal defendant in multiple cases!
While resisting the GOP’s worst racist/nativist nonsense, the Dems’ approach has been largely to avoid talking about immigration and human rights, apparently believing that pretending like they don’t exist will make them go away. But, migration isn’t going away!
While we can to some extent control, channel, and optimize migration, irresponsible “zero tolerance/uber deterrence” policies will do little to stop reality in the long run. It will, however, eventually force more migration underground and cede policy control to smugglers, cartels, and other criminals.
At the same time, obsessing over deterring and deporting those who merely seek refuge and a chance to contribute to America will actually diminish the harder work of focusing on criminals out to turn border disorder and misplaced priorities to their advantage.
Neither party appears to have a realistic plan for the border, and the GOP actively seeks to make things worse!Meanwhile, not for the first time, NGOs, local communities, and compassionate individuals are left to pick up the slack!
Recently, the San Diego County Board showed the potential for bipartisan cooperation on the border.
But, without a more realistic approach from the Feds — currently blocked by the GOP — local efforts are unlikely to succeed. And, that’s an avoidable humanitarian tragedy!
Hon. Dana Leigh Marks Retired U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Roundtable of Retired Immigration Judges
From the Los Angeles & San Francisco Daily Journal:
The just published proposed regulation is a big deal. It begins with over thirty pages of introductory information debunking the misguided justifications for the previous version of this rule [enjoined by a Federal Court]. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement [an endemic EOIR problem] is called out.
It appears that EOIR is slowly correcting some of the mistakes of the recent past. What’s disappointing and of great concern: 1) Should and could have been “day one stuff;” 2) Judge Dana Marks was on the EOIR payroll on Jan. 20, 2021, and she or a qualified expert like her could and should have been put in charge and empowered to kick tail, take names, clean house, bring in top judicial and administrative talent, and implement long-overdue, still absent, EOIR reforms!
Better late than never? Perhaps, we’ll see. But, I’m not betting the farm on it!
Mob chatter: “Hey, anyone here know what an ARCG is?” “No clue.” “Some kind of boat?” “Maybe we should ask Noah.” “Don’t bother. The only rule we follow around here is ‘When in doubt, throw ‘em out!’” “Isn’t that what the UN Handbook says, that ‘giving the benefit of the doubt’ means to ‘doubt that any benefit will ever be given?’” “Yup, sounds right to me!” “I don’t understand it. We’re overtly hostile to asylum seekers and their lawyers, we’ve tilted the playing field against them, yet they still come! Why?” “Detain, discourage, deny, deport, deter, that’s our mission!” “Where due process, fundamental fairness, and best practices go to die!” “Precedents? We only follow the ones unfavorable to respondents!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
From: Ted Murphy
Sent: Thursday, September 14, 2023 10:09 AM
To: AILA Philadelphia List
Cc: Kaley Miller-Schaeffer
Subject: 3rd Circuit Precedent – PSG Honduras A-R-C-G-
Importance: High
Friends,
Please see the attached precedent decision from the 3rd Circuit today. While the first 16 pages of the 21 page decision focus on CIMT issues, the final 4 pages are worth reading on PSG similar to A-R-C-G- that the BIA ignored.
Here, on the other hand, the BIA did not adhere to
Matter of A-R-C-G-’s requirement to examine Avila’s PSG
within the context of the specific country conditions in
Honduras. The BIA rejected Avila’s PSG for lack of
particularity without considering evidence in the record about
“widespread and systemic violence” against Honduran women,
“inconsistent legislation implementation, gender
discrimination within the justice system, and lack of access to
services.”109 Evidence in the record, including that “[l]ess than
one in five cases of femicide are investigated,… and the
average rate of impunity for sexual violence and femicide is
approximately 95%,” may have been relevant in examining
whether Avila’s proposed PSG was cognizable.110 Just as the
cultural attitudes toward gender were relevant in Matter of A-
R-C-G-, evidence in the record as to the “machismo culture” in
Honduras may be relevant to assessing whether Avila has a
cognizable PSG.111
Moreover, in Matter of A-R-C-G-, DHS conceded that
the proposed group “married women in Guatemala who are
unable to leave their relationship” was sufficient for a PSG
asylum claim.112 Given the similarity between that social group
and “Honduran women in a domestic relationship where the
male believes that women are to live under male domination,”
we must remand for the BIA to provide clarification as to its
application of Matter of A-R-C-G-, and to determine whether
Avila’s proposed PSG is cognizable in light of the specific
country conditions
.
We must also remand for the BIA to consider whether
Avila demonstrated a well-founded fear of persecution on
account of her PSG. The BIA determined that Avila’s PSG did
not “exist independently” of the harm alleged, as required
under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter
of M-E-V-G- cites to this Court’s prior precedent in Lukwago
v. Ashcroft,115 which states that a PSG “must exist
independently of the persecution suffered by the applicant for
asylum.”116 However, Lukwago makes clear that in
determining whether a PSG exists independently of the
persecution suffered, the BIA must consider the PSG in the
context both of “past persecution” and a “well-founded fear of
persecution.”117 Here, the BIA did not consider whether Avila
had demonstrated that she had a well-founded fear of
persecution based on her past experiences of abuse and sexual
violence. Accordingly, we will remand for the BIA to consider,
in addition to whether Avila has suffered past persecution on
account of her PSG, whether she has demonstrated a well-
founded fear of future persecution.
In conclusion, on remand, the BIA should (1) clarify,
given the Government’s concession in Matter of A-R-C-G- that
the proposed group was sufficient for a PSG asylum claim, its
application of Matter of A-R-C-G- to the present case, and
consider Avila’s PSG in the context of evidence presented
about the country conditions in Honduras and (2) provide
guidance in applying both Matter of A-R-C-G- and Matter of
M-E-V-G- with respect to past persecution and a well-founded
fear of future persecution on account of membership in a PSG
Case was argued by Attorney Kaley Miller-Schaeffer.
Once again, the BIA fails to follow its own precedent favorable to the respondent! Yet, in a Dem Administration they get away with mocking the rule of law in life or death cases, in a “court system” that the Dems “own.” Why?
WHO applies precedents and rules can be as important as the precedents and rules themselves! Failure to properly and uniformly apply legal rules that favor asylum seekers has become a chronic problem at EOIR. It’s one that Garland has yet to effectively and comprehensively address!
Many congrats to Kaley Miller-Schaefer and Murphy Law!
Kaley Miller-Schaefer ESQ Partner Murphy Law PHOTO: Linkedin
A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.
Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.
The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.
In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.
Texas swiftly appealed the judge’s order.
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
*********************************
Read the rest of Priscilla’s report at the link.
Who knows how this will play out in the 5th Circuit and the Supremes, given the composition of those courts. But, at least for a day, Judge Ezra has brought some common sense and the rule of law to bear on out of control grandstanding Texas “Governor” Greg Abbott.
We should also remember that the vast majority of those whom Abbott and the nativists bogusly call “invaders” seek only to turn themselves in to U.S. authorities so they can exercise their clear legal rights to apply for asylum — rights that attach regardless of status or manner of entering the U.S. (Rights that also have improperly been diminished and impeded by the Biden Administration’s ill-advised asylum regulations, currently under legal challenge).
If successful (under a legal system intentionally rigged against them), these so-called “invaders” will use their skills and work ethic to expand our economy and help Americans prosper while saving their lives and those of their families. To anybody other than Abbott and other White Nationalists, that sounds like a potential “win-win” that could and should be “leveraged” for everyone’s benefit!
Judge Ezra’s opinion in the aptly-named U.S. v. Abbottcan be found here:
This brief represents the views of two groups of amici curiae. See Corporate
Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.
The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal
1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.
Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.
is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.
Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear
intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.
“On Petition for Review of a Final Order of the Board of Immigration Appeals. (Agency No. A209-343-065). Immigration Judge: David Cheng. … As for Quinteros’s Convention Against Torture claim, our precedent requires the agency to follow certain steps. Yet neither the judge nor the Board did so. … Here, neither the immigration judge nor the Board followed our instructions. … Those procedural failures infected the agency’s decisions. Neither the immigration judge nor the Board considered a separate death threat and beatings that Quinteros got from gang members. In gauging the likelihood and severity of future harm, the agency should have considered the gang’s death threat too. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 112 n.5 (3d Cir. 2020). So we will grant the petition as to Quinteros’s Convention Against Torture claim, vacate the Board’s order, and remand.”
Gee whiz, applying and following Circuit precedent seems like “Immigration Judging 101!” Yet two levels of supposedly “expert” EOIR judges blew it — badly! Fortunately, this respondent was represented by experienced Federal litigator Thomas E. Moseley, who is never afraid to go to the Article IIIs to correct EOIR’s errors.
But, most respondents aren’t so lucky. So, it’s likely that for every defective adjudication “outed” by a Circuit, multiple, potentially deadly or at least life changing, mistakes go uncorrected. Worse yet, some are even “institutionalized!” Seems like a “heck of a way to run the railway,” particularly for a former Article III Judge who was once nominated for the Supremes!
Unforced error after unforced error in life or death cases from Garland’s substandard “courts!” Would brain surgeons 🤯☠️ who kept on screwing up critical operations still be “on staff.” I doubt it! So, why aren’t “DOJ attorneys” carrying out quasi-judicial functions subject to some quality controls? In theory, that’s supposed to be the BIA’s function. But, the BIA has firmly established itself as “part of the problem, NOT the solution!”
Congrats to my long-time friend and former “Legacy INS” colleague Tom Moseley. As a former INS Special Assistant U.S. Attorney in the SDNY (in the time of “Crazy Rudy”) during the “Inman/Schmidt Era” at INS General Counsel, Tom has also seen both sides of the system!
“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”
Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:
Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.
H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.
Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.
The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.
Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!
