BESS LEVIN @ VANITY FAIR: AS AMERICANS DIE ⚰️ IN RECORD NUMBERS & PUTIN HACKS OUR NATIONAL SECURITY🏴‍☠️, THE WORLD’S MOST EVIL CLOWN 🤡🤮  FLUSHES IT ALL DOWN THE TOILET!🚽

Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair

https://mailchi.mp/de1485f0a479/levin-report-trumps-heart-bursting-with-sympathy-for-his-buddy-bob-kraft-2904842?e=adce5e3390

Hey, you know that massive, scary, very likely Russian hack that reportedly breached multiple U.S. government agencies in what may have been the biggest government hack in history? The one that Trump’s former Homeland Security adviser estimates could have affected 18,000 organizations, including most federal government unclassified networks and a number of Fortune 500 companies? The magnitude of which, he says, cannot be overstated? The same one that Donald Trump has said nothing about? Well, no biggie, but apparently hackers also reportedly accessed the networks of the Energy Department and the National Nuclear Security Administration. Which, as you might have guessed, maintain the country’s nuclear weapons stockpile.

Per Politico:

On Thursday, DOE and NNSA officials began coordinating notifications about the breach to their congressional oversight bodies after being briefed by Rocky Campione, the chief information officer at DOE. They found suspicious activity in networks belonging to the Federal Energy Regulatory Commission (FERC), Sandia and Los Alamos national laboratories in New Mexico and Washington, the Office of Secure Transportation at NNSA, and the Richland Field Office of the DOE. The hackers have been able to do more damage at FERC than the other agencies, and officials there have evidence of highly malicious activity, the officials said, but did not elaborate.

The attack on DOE is the clearest sign yet that the hackers were able to access the networks belonging to a core part of the U.S. national security enterprise. The hackers are believed to have gained access to the federal agencies’ networks by compromising the software company SolarWinds, which sells IT management products to hundreds of government and private-sector clients…. NNSA is responsible for managing the nation’s nuclear weapons, and while it gets the least attention, it takes up the vast majority of DOE’s budget. Similarly, the Sandia and Los Alamos National Labs conduct atomic research related to both civil nuclear power and nuclear weapons. The Office of Secure Transportation is tasked with moving enriched uranium and other materials critical for maintaining the nuclear stockpile.

While Joe Biden commented on the issue Thursday, saying “Our adversaries should know that, as president, I will not stand idly by in the face of cyber assaults on our nation,” Trump has remained curiously silent, or at least it would be curious had he not made it explicitly clear the last four years that Vladimir Putin, and really, any of his favorite dictators, can often do whatever they want. (The Russian embassy said on Sunday that it had nothing to do with the hack, though experts believe it almost certainly came from a Russian intelligence agency.)

But hey! There may be an entirely reasonable explanation for why Trump hasn’t bothered to address the issue, and it’s that he’s been extremely busy working on much more important issues. No, not fruitlessly attempting to overturn the results of the 2020 election, though that does take up a decent amount of his time. In this case, it’s something even bigger:

The U.S. Department of Energy on Tuesday finalized a pair of new rules rolling back water efficiency standards on showerheads and other consumer appliances, punctuating President Donald Trump’s long-documented water flow grievances in the final weeks of his administration. The new showerhead rule goes after the two-and-a-half-gallon-per-minute maximum flow rate set by Congress in the 1990s. Under current federal law, each showerhead in a fixture counts toward that limit collectively—but the Energy Department’s new rule means each showerhead individually can reach the limit set by Congress.

The slate of recent changes align with Trump’s larger dismantling of environmental regulations, and, more specifically, his open disdain for poor water flow. Trump claimed late last year that Americans are flushing their toilets “10 times, 15 times, as opposed to once” and are having difficulty washing their hands. “We have a situation where we’re looking very strongly at sinks and showers and other elements of bathrooms where you turn the faucet on—and in areas where there’s tremendous amounts of water, where the water rushes out to sea because you could never handle it, and you don’t get any water,” the president said last December during a roundtable with small business leaders about deregulatory actions. “You turn on the faucet and you don’t get any water. They take a shower and water comes dripping out. Just dripping out, very quietly dripping out,“ the president continued, lowering his voice as he spoke about the drips.

“Today the Trump Administration affirmed its commitment to reducing regulatory burdens and safeguarding consumer choice,” Secretary of Energy Dan Brouillette proudly declared in a statement. “With these rule changes, Americans can choose products that are best suited to meet their individual needs and the needs of their families.” The rollbacks were chastised not only by environmental groups but consumer organizations as well, with Andrew deLaski, executive director of the Appliance Standards Awareness Project, saying, “Changing the rules to address one of President Trump’s pet peeves is simply silly. Thousands of showerhead models on the market today meet the standards that Congress set way back in 1992 and provide a great shower.”

In related news, to date it remains unclear why it takes Trump 15 flushes to clear a toilet.

. . . .

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

Red the rest of the “Levin Report” at the link.

While Trump has famously been reported not to bother reading his “daily intelligence briefings” (after all, they are pretty boring, related to work, which has never been a priority, and reportedly written in complete sentences, which are not within his comfort zone), we can be sure that Vladimir Putin and his buddies in the Kremlin are reading them. 

In the meantime, Putin could not ask for a more outrageously tone-deaf, indolent, performance by the Chief Clown 🤡 , Moscow 🇷🇺  Mitch, the GOP, and their cronies and enablers in the period of total national disorder and decay leading into the swearing in of the first real President America has had in four years on January 20, 2021. 

32 days and counting left in the kakistocracy. How many more Americans will needlessly die and suffer before we finally get relief from the deadliest Clown Show 🤡☠️🤮⚰️👎🏻?

PWS

12-19-20

🎅🏻🎄A BARR CHRISTMAS: “Billy the Bigot” Leaves Behind Legacy of Holiday Killings⚰️, Pepper Spray🤮, Sleazy Pardons👎🏻, & Other Acts Of “Christian Charity”

 

Alexandra Petri
Alexandra Petri
Columnist
Washington Post
Photo: Scott Bradley, Tedx Baltimore, Creative Commons License

https://www.washingtonpost.com/opinions/2020/12/15/bill-barrs-christmas-resignation-is-worst-holiday-movie-ive-ever-seen/

Alexandra Petri @ WashPost:

“Bill Barr’s Christmas Resignation” is one of the worst pieces of holiday content I have ever consumed! A letdown on every level. First, the title is not a pun. Second, the ending comes out of nowhere.

This story of a deceptively affable-seeming attorney general and how he decides to leave the Trump administration for good to spend the holidays with his family at first seems like it’s going to be standard Christmas fare. A 70-year-old man overly devoted to his occupation who feels no guilt about any of his past deeds and seems deficient in sympathy for his fellow man — what could possibly be a more classic Christmas movie setup? That is why what followed was so disappointing and jarring.

We open with Bill in his office, merrily redacting away at some document that probably should not have been redacted. He is visited by a malicious-looking elf who has messages for him. (Correction: I totally misread what was going on; this was actually senior presidential adviser Jared Kushner. I regret the error.)

We see a picture on Bill’s desk of his boss, Donald Trump, and he keeps going on and on about how excited he is to enact Donald Trump’s agenda. We also learn about all the executions he has scheduled after reinstating the death penalty for federal crimes. This seems incredibly brutal and dark but does establish a character who is going to grow a lot and learn he needs to change his ways.

He leaves the office and drives home past several signs expressing negative sentiments about Donald Trump. He passes Lafayette Square and remembers giving the go-ahead to fire pepper balls at peaceful protesters. He smiles his affable smile. Lights reflect off the window of his secure vehicle. A holiday song plays.

[Alexandra Petri: The 100 worst Christmas songs, ranked]

At this point you, the viewer, glance at your watch. This has been a lot of setup, you think. But it’s called “Bill Barr’s Christmas Resignation”! It ends with him leaving his job as the head of the Justice Department to be with his family. He wouldn’t just do that randomly, would he? There’s got to be an inciting incident of some kind. Perhaps when the clock strikes midnight he will be switched with his secret twin and forced to replicate the White House in fondant for a baking contest. Maybe he will get a call from the head of what claims to be a little-known European country — a perfect call, asking him to spend his holiday season there.

He arrives home and flicks on the TV, where he can see several sinister cronies of Donald Trump (whom he has personally allowed to avoid the consequences of their actions) roaming freely around the city inciting mobs of Proud Boys and even urging their followers to call for martial law. And then he goes to bed and — sleeps peacefully, on a MyPillow.

At this point a commercial for MyPillow came on — the whole thing was sponsored by MyPillow — and I quickly checked to make sure I was watching the right thing, because we were halfway through “Bill Barr’s Christmas Resignation” and he was still going about his life like he didn’t think he’d done anything wrong or needed to change his ways at all. He hadn’t even been assigned to a project he didn’t want to work on with a co-worker who loved Christmas a little too much.

After the commercial, we see Bill is having a dream. It seemed as though this would be when things turned around. In the dream, he walks through a populous city. He sees Want and Ignorance and gives them a thumbs-up. He sees his own tombstone with “Servant of Donald Trump” on it and smiles cheerily at it. He sees a little girl lighting match after match to keep herself warm and — adds the city to his list of Anarchist Jurisdictions.

. . . .

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

Read the rest Alexandra’s “Christmas Carol” at the link.

And, what about all the traumatized kids, abused refugee women, and killed or suffering asylum seekers? What’s their “holiday” going to be like as the result of the immoral and often illegal actions one of the most most egregious “faux Christians” in recent history?

Good riddance!

Due Process Forever!

PWS

12-19-20

 

 

🏴‍☠️KAKISTOCRACY SLAMMED: FEDERAL COURT BLASTS REGIME’S INTENTIONAL, ILLEGAL UNDERMINING OF DUE PROCESS IN IMMIGRATION COURT — ORDERS IMMEDIATE CHANGE! — Regime’s “delay in processing A-File FOIA requests . . . . undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.”

Mary Kenney, Deputy Director, National Immigration Litigation Alliance (“NILA”) writes:

Hello all –

 

NILA, NWIRP, AIC and the Law Offices of Stacy Tolchin are thrilled to announce that the district court just granted declaratory and injunctive relief in our nationwide class challenge to A-File FOIA delays, Nightingale v. USCIS. The court orders:

  • Declaratory relief due to Defendants DHS, USCIS and ICE’s pattern or practice of failing to make timely A-File FOIA determinations;
  • Injunctive relief permanently enjoining Defendants from further failing to adhere to the statutory deadlines for A-File FOIA requests;
  • That Defendants to make determinations on all backlogged FOIA requests within 60 days; and
  • That Defendants submit quarterly compliance reports to the Court and class counsel going forward.

 

Here are some great findings from the Court:

  • Defendants’ “delay in processing A-File FOIA requests . . . . undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.”
  • “A comprehensive remedy is needed and is long overdue.”
  • “[S]ince 2017 these defendants have employed aggressive immigration enforcement policies that made an increasing [A-File FOIA]workload predictable and expected. The unfortunate reality is that FOIA is the only realistic mechanism through which noncitizens can obtain A-Files. Given the critical importance of the information in A-Files to removal defense and legalizing status, it is not at all surprising that the number of A-File FOIA requests have increased along with this increase in immigration enforcement.”
  • “USCIS also complains that it recently tried to increase its fees through a new regulation that could have added more resources to its FOIA budget, but that effort is currently preliminary enjoined in this District. . . . . This argument is particularly troubling as it insinuates that FOIA processing is entirely dependent on the fees paid by the very people who are harmed by the defendants’ delays.

 

A copy of the decision is available here.

 

Mary Kenney

National Immigration Litigation Alliance

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

Congrats to Mary and everyone else involved in this extraordinary “team effort” to hold the immigration bureaucracy (now “kakistocracy”) accountable after years of unacceptable and illegal conduct which has directly undermined the rule of law and immigrants’ rights!

So, let’s summarize the absurdity, and not let the “malicious incompetents” at EOIR off the hook, either:

  • With well over 1 million backlogged cases, many pending for years, EOIR chooses to “expedite and prioritize” “not quite ready for prime time” recent cases, without giving the private parties adequate time to prepare, or even get lawyers in many cases;
  • In “cahoots” with DHS, EOIR insures that cases will be scheduled without regard to the delays in getting the necessary file material from DHS via FOIA requests;
  • EOIR fails to impose reasonable discovery rules on DHS, nor do they insist, as any ”real” court would, that no case will be scheduled for a merits hearing until DHS complies with respondents’ reasonable requests for file materials;
  • USCIS, once a “self-funding agency,” improperly diverts resources to bogus racist inspired, enforcement activities;
  • As a result of this gross mismanagement, USCIS falsely claims “bankruptcy,” and illegally tries to increase FOIA fees, a move properly blocked by Federal Courts;
  • USCIS then falsely blames respondents for the discovery delays caused by its own misappropriation of resources and racist policies.

The solution: The Biden Administration must immediately oust the White Nationalist kakistocracy ☠️  at DHS and EOIR and replace it with competent experts from the NDPA who will restore order, rationality, professionalism, efficiency, and integrity to a dysfunctional system that has undermined the public interest and common good.

 

It’s not rocket science! Just competence, morality, and humanity.

Congrats to my friend Zachary Nightingale, Partner at Van Der Hout LLP, in San Francisco, who was the “lead named plaintiff” in this “sure to be famous” case. The “Nightingale rule” and “getting the Nightingales” are likely to become synonymous with what passes for “discovery” in Immigration Court, at least until we get Article 1.

Job Opportunity: Clock Repair Technicians Wanted. Start Date: January 21, 2021. Location: DHS & EOIR. Duties: Fix broken “asylum work authorization clock 🕰” to account for reality that most major delays in completing asylum hearings consistent with due process are caused by the Government’s incompetence, elevation of racist enforcement initiatives over due process and fundamental fairness, and “Aimless Docket Reshuffling,” NOT by asylum applicants and their (often pro bono or “low bono”) representatives. Draft legislation to repeal this irrational, unnecessary, and counterproductive statute.

Due Process Forever!

PWS

12-18-20

⚖️BC PROFESSOR KARI HONG’S BIG WIN IN 10TH CIRCUIT HIGHLIGHTS YET ANOTHER FAILURE OF BASIC ASYLUM ANALYSIS BY EOIR JUDGES! — This Time They Failed To Follow The Rules On “Reasonably Available Internal Relocation!” — ADDO v. BARR — “[B]ecause the purpose of the relocation rule is not to require an applicant to stay one step ahead of persecution in the proposed area, th[e] [new] location must present circumstances that are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.”

 

Professor Kari Hong
Professor Kari Hong
Boston College Law
Photo: BC Law Website

Addo Opinion

Addo v. Barr, 10th Cir., 12-14-20, published

PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.

OPINION BY: Judge HARTZ 

KEY QUOTE:

On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).

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

Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!  

This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers. 

In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current  grossly defective leadership.

I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals. 

Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!

The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law. 

Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice.  It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!

Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”

Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.

We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!

Thanks, Professor Hong to you and your dedicated  “crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!

In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.

This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community.  As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.

But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality!  Things don’t have to be the way they are now at EOIR!

Due Process Forever!⚖️🗽😄

PWS

12-17-20

KAKISTOCRACY WATCH: ANOTHER RAT 🐀 FLEES THE SINKING SHIP🆘: Billy The Bigot Jumps Ship Before Captain Queeg 🤯Can Fire Him!

Barr Departs
Lowering The Barr by Randall Enos, Easton, CT
Republished By License

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

Good riddance, although too late for the lives and futures of many of his victims!☠️⚰️👎🏻🐀🤮

Due Process Forever!

PWS

12-16-20

😇SPIRIT OF THE SEASON: One Of World’s Most Remarkable Persons, MacKenzie Scott Donates $6 Billion, Cuts Red Tape, Targets Inequality & Under-appreciated Communities! — “Donations were focused on those ‘operating in communities facing high projected food insecurity, high measures of racial inequity, high local poverty rates, and low access to philanthropic capital.’”👍🏼

MacKenzie Scott
MacKenzie Scott
Philanthropist & Author
Official USG Photo from 2016 Naturalization Ceremony
Public Realm

https://apple.news/AX_umtRaoRZS_MdbBNdEJXw

From Bloomberg News:

MacKenzie Scott Gives Away $4.2 Billion in Four Months

By Sophie Alexander and Ben Steverman, December 15, 2020, 12:44 PM EST, updated at December 15, 2020, 3:21 PM EST

MacKenzie Scott is giving away her fortune at an unprecedented pace, donating more than $4 billion in four months after announcing $1.7 billion in gifts in July.

The world’s 18th-richest person outlined the latest contributions in a blog post Tuesday, saying she asked her team to figure out how to give away her fortune faster. Scott’s wealth has climbed $23.6 billion this year to $60.7 billion, according to the Bloomberg Billionaires Index, as Amazon.com Inc., the primary source of her fortune, has surged.

“This pandemic has been a wrecking ball in the lives of Americans already struggling,” she wrote in the post on Medium. “Economic losses and health outcomes alike have been worse for women, for people of color and for people living in poverty. Meanwhile, it has substantially increased the wealth of billionaires.”

Scott’s gifts this year approach $6 billion, which “has to be one of the biggest annual distributions by a living individual” to working charities, according to Melissa Berman, chief executive officer of Rockefeller Philanthropy Advisors.

Berman said Scott’s donations show that it’s possible to give large amounts quickly without requiring nonprofits to “jump through a lot of hoops to get the money.” The size of Scott’s gifts also disprove a common theory that’s it’s hard to deploy vast amounts of money without running into trouble or proving wasteful.

Sharing Results

Scott’s advisers zeroed-in on 384 groups to receive gifts, she said in the post, after considering almost 6,500 organizations. Donations were focused on those “operating in communities facing high projected food insecurity, high measures of racial inequity, high local poverty rates, and low access to philanthropic capital.”

Recipients include more than 30 institutions of higher education, including several tribal colleges and historically Black colleges and universities. More than 40 food banks received money, as did almost four dozen local affiliates of Goodwill Industries International.

Scott King, the executive director for Meals on Wheels of Tampa, said he didn’t even apply for the grant they received. Instead, her team contacted the nonprofit, which delivers food to about 850 homes and makes about 2,600 meals each day.

“This comes at a great time for us,” he said. “There are areas in and around Tampa that aren’t being served and need to be.”

Betsy Biemann, CEO of Maine-based Coastal Enterprises Inc., said it received $10 million, equivalent to the size of their annual operating budget. It’s a show of how powerful Scott’s enormous fortune is, especially when she decides to give to smaller organizations.

“It’s an amazing day at the end of what’s been a very challenging year,” said Biemann, whose nonprofit provides financing and advice to small businesses and entrepreneurs, especially those from rural areas or disadvantaged groups.

Scott listed the names of the groups that received the money, just as she did for the 116 organizations in her July letter. In her announcement this summer, Scott said she decided to make the gifts public in part to call attention to “organizations and leaders driving change.”

Philanthropy experts applauded Scott’s work not only for how quickly she’s given away her fortune, but also how she’s gone about it.

. . . .

Updates with recipient comment in eighth paragraph.)

To contact the reporters on this story:
Sophie Alexander in San Francisco at salexander82@bloomberg.net;
Ben Steverman in New York at bsteverman@bloomberg.net

To contact the editors responsible for this story:
Pierre Paulden at ppaulden@bloomberg.net
Steven Crabill, Sophie Alexander

More Like This:

The Global Food System Is Also A Victim Of Covid

Dec. 2, 2020

Covid Supercharged the World’s Takeout Habit and Left a Big Mess

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

Read the rest of this inspiring report at the link. Talk about real leadership and “making a difference at a time of greatest need!”

PWS

12-16-20

THE GIBSON REPORT — 12-14-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Dumbing Down EOIR 👎🏻🤯 — How America’s Immigration Courts Became “Amateur Night At The Bijou” 🤹 With Humanity At Stake & Other Horror Stories ☠️ From The Dying ⚰️ Kakistocracy!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Kangaroos
BIA Members In Training Session
https://www.flickr.com/photos/rasputin243/
Creative Commons License
Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 1, 2020 (This is the date announced last week. It is unclear whether there will be an update this week, since a longer-than-usual postponement was announced last week, likely in light of the holidays). NYC non-detained remains closed for hearings.

 

TOP NEWS

 

Trump Administration Enacts Rule Gutting Protection for Refugees and Asylum Seekers

HRW: In the waning days of the current administration, the Trump U.S. Departments of Homeland Security and Justice have rammed through a sweeping final rule, set to go into effect on January 11, 2021, that guts what remains of protection for refugees seeking asylum in the United States…Under the rule, the Trump administration is likely to, among many other harmful actions: Deny asylum to refugees who improperly entered the United States…Deny asylum to a woman who is harmed for gender-based violence…Deny asylum to LGBTQ refugees… Redefine persecution…Redefine “political opinion”… increasing the complexity of credible fear screenings… new grounds for declaring asylum applications “frivolous,”… See also EOIR Memo on implementation of the regs.

 

US Extends Temporary Protected Status for 6 Disaster-Hit Countries

VOA: The so-called Temporary Protected Status (TPS) for some citizens of El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal was extended by the Department of Homeland Security (DHS) until at least October 2021.

 

DOJ Reins In Immigration Appeals With Final Rule

Law360: The rule, proposed in August, will curtail the ability of immigration appellate judges to hear cases on their own accord, impose a time limit on appeals, and create a mechanism for lower immigration judges to seek reversal of appellate judges at the Board of Immigration Appeals by petitioning a political DOJ appointee.

 

DOJ Floats E-Filing Rule In Immigration Courts

Law360: The U.S. Department of Justice proposed implementing electronic filing across all immigration courts, allowing immigration attorneys to submit documents, access case files and view court decisions virtually.

 

The Trump administration expelled unaccompanied migrant children in violation of a court order

Vox: The Trump administration has expelled at least 67 unaccompanied migrant children who arrived on the US-Mexico border since November 18, continuing to invoke Covid-19 as a rationale in defiance of a court order.

 

Tracking the Trump Administration’s “Midnight Regulations”

ProPublica: The administration is rushing to implement dozens of policy changes in its final days. We’re following some of the most consequential and controversial.

 

COVID-19 Vaccine: What about undocumented immigrants and communities of color?

DocumentedNY: Cuomo announced Wednesday that the Department of Health and Human Services and Centers for Disease Control and Prevention had agreed to remove the requirements on vaccine reporting data that could determine whether vaccine recipients are U.S. citizens.

 

ICE Mismanagement Created Coronavirus “Hotbeds Of Infection” In And Around Detention Centers

Intercept: By August 1, almost 5.5 percent of total U.S. cases, according to the report, were attributable to spread from ICE detention centers. The report is yet another damning indication that ICE’s dereliction in protecting basic human rights, grievous medical neglect, and lack of transparency in how it detains and treats people in its system of over 200 detention centers is a massive public health threat — both to detainees and the greater U.S. population.

 

Persecuted and marginalized: Black LGBTQ immigrants face unique challenges

ABA: As part of her efforts to build community among LGBTQ immigrants, Gurmu also established the Queer Black Immigrant Project, or QBip, an effort she describes as a black radical lawyering initiative that seeks not only to assist people with asylum claims but also finds solutions to why Black immigrants are leaving their homelands.

 

The United States Has Failed Cameroonian Asylum-Seekers

FP: Fleeing a civil war shaped by the West, Cameroonians have been met on American shores with hostility, high-risk conditions, and now unconscionable deportation.

 

Progressives are getting ready to push Biden on immigration reform

Vox: Biden claims that he would not simply return to the Obama-era status quo on immigration, which involved record-level deportations and an expansion of family detention.

 

How many of our immigration judges are amateurs at immigration law?

The Hill: The problem is the training program for new judges does not spend enough time teaching immigration law to give them the knowledge they will need as immigration judges. Unlike in many courtrooms, these new judges generally will be expected to issue an oral decision at the end of each hearing, which does not give them time to do research or get advice from more experienced judges.

 

Contractors Dynamite Mountains, Bulldoze Desert In Race To Build Trump’s Border Wall

NPR: This is one of 29 construction projects being performed by 13 different contractors from San Diego to Brownsville, Texas. In Arizona, contractors have added shifts — they’re working all night long under light towers to meet Trump’s goal of 450 miles of new barriers before his term is over.

 

How ICE Became The Face Of Trump’s Immigration Crackdown And Where It Goes From Here After Biden Is In Charge

Buzzfeed: BuzzFeed News spoke with 12 current and former ICE officials who served during the Trump administration about their experiences and their thoughts about the future. Many, like Schwab, said the new president must find a way to correct the excesses of the past four years and restore public trust in the agency by revamping policies and tactics. But many also cautioned that it won’t be easy.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Opinion analysis: Justices allow Muslim men placed on “no fly” list to sue FBI agents for money damages

SCOTUSblog: In a brief and unanimous opinion by Justice Clarence Thomas, the Supreme Court upheld the 2nd Circuit’s ruling. Thomas pointed to the text of RFRA, which allows an individual whose exercise of religion has been burdened to “obtain appropriate relief against a government.” That phrase, Thomas explained, permits someone who has been injured to sue government officials in their personal capacities.

 

Supreme Court puts off ruling on Trump census case to exclude undocumented immigrants

NBC: The Trump administration had urged the court to take the case on a fast track and issue a decision before the president is required to submit the census report to Congress in early January. But by the time the case was argued Nov. 20, the Census Bureau conceded that it has no idea yet know how many people would be excluded or when it will have the answer. It appeared Monday that the justices declined to act for that reason.

 

CA1 Finds Petitioner Abandoned LPR Status After Living and Working in Canada for Six Years

The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708

 

CA9 Says Derivative U Visa Spouse Need Not Be Married to Principal Applicant at Time of Form I-918 Filing

The court held that to qualify for a derivative U visa as a spouse, a person need not have been married to the principal applicant at the time the Form I-918 application was filed, so long as the marriage exists when the principal applicant receives a U visa. (Tovar v. Zuchowski, 12/3/20) AILA Doc. No. 20120839

 

CA11 Says INA §241(a)(5) Bars Reopening of Reinstated Removal Order Where Noncitizen Unlawfully Reentered After Removal

The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709

 

Feds Can’t Enforce Trump’s No-Visa Policy For 181 Families

Law360: A California federal judge on Friday blocked enforcement of President Donald Trump’s COVID-19-related rule barring noncitizens from moving to the U.S. on new green cards, specifically as the rule pertains to 181 families, finding that the families showed they’d suffer irreparable harm.

 

District Court Rejects Challenge to DHS’s Expedited Removal Pilot Programs

The district court found that DHS’s new detention-placement policy of the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs did not violate statutory, regulatory, or constitutional requirements. (Las Americas Immigrant Advocacy Center v. Wolf, 11/30/20) AILA Doc. No. 20120838

 

DHS and DOJ Final Rule on Procedures for Asylum, Withholding of Removal, and CAT Protection

DHS and DOJ final rule making multiple changes to the regulations governing the procedures for asylum, withholding of removal, and protection under the CAT. The final rule adopts the notice of proposed rulemaking published on 6/15/20 with few substantive changes. (85 FR 80274, 12/11/20) AILA Doc. No. 20121030

 

EOIR Issues Memo Providing Guidance on New Regulations Governing Procedures for Asylum, Withholding of Removal, and CAT Protection

EOIR issued a memo (PM 21-09) establishing EOIR policy and procedures regarding new DHS and DOJ regulations, effective January 11, 2021, about credible fear and reasonable fear review screenings and the adjudication of asylum, statutory withholding of removal, and protection under CAT claims. AILA Doc. No. 20121400 See also Final Rule: Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.

 

EOIR Issues Memo on Pro Bono Legal Services

EOIR issued a memo (PM 21-08) consolidating and updating EOIR policies related to pro bono legal services. This memo replaces OPPM 97-1, Maintaining the List of Free Legal Service Providers, and OPPM 08-01, Guidelines for Facilitating Pro Bono Legal Services. AILA Doc. No. 20121133

 

EOIR Issues Memo Setting Forth Updated Adjournment, Call-Up, and Case Identification Codes

EOIR issued a policy memo (PM 21-07) rescinding PM 20-08, Definitions and Use of Adjournment, Call-Up, and Case Identification Codes, dated February 13, 2020, and setting forth updated codes used to track the case hearing process. AILA Doc. No. 20121038

 

Advance Copy of EOIR Final Rule on Appellate Procedures and Administrative Closure

EOIR final rule amending the regulations on the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The final rule will be published in the Federal Register on 12/16/20 and will be effective 30 days after publication. AILA Doc. No. 20121130

 

DOJ Provides Information on EADs for Six TPS-Designated Countries

DOJ provided a table of EAD expiration dates that were issued under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. EADs with expiration dates listed in the table and a category code of A-12 or C-19 are now valid through October 4, 2021. AILA Doc. No. 20121401

 

Update: Deferred Action for Childhood Arrivals

USCIS: In compliance with an order of a United States District Court, effective December 7, 2020, U.S. Citizenship and Immigration Services (USCIS) is: Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order.

 

ACTIONS

 

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, December 14, 2020

Sunday, December 13, 2020

Saturday, December 12, 2020

Friday, December 11, 2020

Thursday, December 10, 2020

Wednesday, December 9, 2020

Tuesday, December 8, 2020

Monday, December 7, 2020

Fourth Circuit to Rehear En Banc Public Charge Rule Case

 

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

Thanks to former EOIR attorney Nolan Rappaport over @ The Hill for highlighting the disgraceful “expertise deficit” at EOIR. Nolan’s article was also cited by Judge “Sir Jeffrey” Chase of the Round Table 🛡⚔️ in a recent post.

https://immigrationcourtside.com/2020/12/15/%f0%9f%9b%a1%e2%9a%94%ef%b8%8f%e2%9a%96%ef%b8%8f%f0%9f%97%bdsir-jeffreys-2021-wish-list-sanity-humanity-due-process-other-great-things-the-importance-of-a-long/

And, as always, thanks Elizabeth, for all you do to keep us well-informed!

The only real question is how much wanton damage can the EOIR Clown Show 🤡🏴‍☠️ inflict on humanity and our legal system before the curtain falls on January 21? Apparently, like the Trump/Barr “holiday execution extravaganza” 🎅🏻⚰️ & “COVID spreading spree,”🤮 they are going for “maximum kills.” ☠️⚰️

PWS

12-16-20

NON-NEWS OF THE DAY: FIVE+ WEEKS AFTER JOE BIDEN’S VCTORY WAS CLEAR, M. MITCH 🤮 FINALLY RECOGNIZES IT!

 

Look, M. Mitch might be slimy, devious, and intellectually dishonest. But, unlike some in his party, he’s no fool.

He’s enough of a student of history to have known that with a large majority of the popular vote and an insurmountable lead in the Electoral College, well-established within a week of the November 3 election, that Biden would be the next President.

Yet, rather than using his position and his influence to combat Trump & company’s false claims and bogus narratives of voter fraud, designed specifically to destabilize our democracy and create unrest, McConnell continued to mouth platitudes. This was even after Trump and his followers actually threatened the safety, welfare, and political futures of members of the GOP who had to guts to stand up and do their jobs.

The voters of Georgia actually have a final shot at removing Mitch’s pernicious power and getting rid of two of the worst Senators in the process. We can always hope that they come through for the rest of us and for our nation. 

Due Process Forever!

PWS

12-15-20

 

🛡⚔️⚖️🗽SIR JEFFREY’S 2021 WISH LIST — Sanity, Humanity, Due Process, & Other Great Things!  — The Importance Of A Long Overdue “Training Upgrade” @ EOIR!

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

https://www.jeffreyschase.com/blog/2020/12/14/a-wish-list-for-2021

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

A Wish List for 2021

To use another sports analogy, we have entered the preseason of the Biden Administration.  As any sports fan knows, preseason (which generally starts five or six weeks before the real season begins) is a time for dreaming.  During preseason, every team is undefeated, and every fan is permitted to believe that this will finally be the year in which their suffering and loyalty are rewarded.

I’ve spoken to several law school classes this fall via Zoom.  One question I’ve been asked by students (both before and after the election) is what reforms I would like to see under the Biden Administration.  Although it seemed significantly more likely before November 3 that the Democrats would control both houses, I’ve stuck with the original list.  This is, after all, preseason, and I’m allowed to dream.

Just to be clear, Biden will be the 13th president to serve during my lifetime, and the seventh since beginning my career in immigration law.  I am well aware that most of the items on my list won’t happen; I wouldn’t be surprised if none come to pass.  Maybe I’ll continue that thought in a future blog; this one is devoted to dreaming.  That being said, some of the changes I hope to see are:

Safeguarding Asylum: In spite of numerous reminders from Article III courts that it is Congress, and not the Attorney General, that writes our laws, and that in enacting the 1980 Refugee Act, Congress intended to bring our asylum laws into accordance with our treaty law obligations, the Trump Administration showed shameless disregard for these facts, doing everything it could think of to upend Congressional intent by eliminating asylum eligibility to all who apply.  Ideally through statute, but if not possible, then at least through regulation, safeguards must be added making it absolutely clear to future administrations that asylum is meant to be a broad and flexible relief from any type of persecution creative persecutors may conceive; that the designated grounds required for such protection are to be interpreted broadly, and that persecution may be attributed to a government providing imperfect protection to its citizens.  It is important to note that none of these principles constitute changes to the law,  but simply shore up or repair long-existing principles following the storm of the past four years.

An Independent Immigration Court: It is time for the Immigration Courts to be moved out of the Department of Justice, and into independent Article I status.  We’ve seen over the past four years the worst-case scenario of what happens when an enforcement agency realizes that it controls the courts that exist to keep that same agency’s worst impulses in check.  Article I has been strongly endorsed by the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, the National Association of Immigration Judges, and many other groups, including the Round Table of Former Immigration Judges.  Enacting this change is the only way the integrity and independence of the Immigration Courts can be safeguarded from future attack.

Government Appointed Counsel for Children in Removal Proceedings: This is a no-brainer.  In a case before the Ninth Circuit involving this issue, J.E.F.M. v. Lynch,  an amicus brief was filed by the states of Washington and California.  The brief began: “In this case, the federal government argues that an indigent child charged with removability in a federal immigration proceeding does not, as a matter of due process under the federal Constitution, have the right to be represented by appointed counsel at government expense….Such a position is at odds with principles of ordered liberty and due process.  It ignores the reality that indigent children are incapable of representing themselves in an adversarial immigration removal proceeding, let alone raising complex claims of due process or navigating federal administrative and appellate procedure.”  The brief continued: “An adversarial immigration system, which depends on the presentation of both sides of a case in a highly specialized area of law, demands that a child, standing alone, be represented by counsel.”  The brief was signed (in March 2016) by California’s then Attorney General, Kamala Harris.  Hopefully Vice President Harris will work to make this right a reality.

Eliminate Chevron Deference for BIA and Attorney General Decisions:  Last year, the Third Circuit, in a concurring opinion by Judge McKee in its decision in Quinteros v. Att’y Gen. (which all three judges on the panel joined), stated that “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”  The court’s observation highlights the problem with according broad deference to those who use their decision-making authority for politically motivated ends.

In a blog post earlier this year, I highlighted three recent scholarly articles questioning the continued propriety of applying Chevron’s principles to decisions of the BIA concerning asylum, or to any decisions of the Attorney General.  I believe Article I status would resolve this problem, as decisions issued by an independent court outside of the executive branch would no longer constitute the interpretation of an executive branch agency covered by Chevron.  In the meantime, Congress and/or the Department of Justice should consider means of exempting such decisions from Chevron deference, and thus keep both the BIA and Attorney General honest in their efforts to reach neutral and fair results.

Create a “Charming Betsy” Reg Requiring Adherence to International Law:  Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.  As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.  Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).

As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.

Eliminate or Curtail the Attorney General’s Certification Power: Until Article I becomes a reality, Congress must pass legislation that either eliminates or at least seriously limits the Attorney General’s certification power by removing the ability to rewrite established law on a whim.  At most, the Attorney General’s role should be limited to requesting the BIA to reconsider precedent in light of interceding Supreme Court or Circuit Court decisions, changes in law or regulations, or other legal developments that might materially impact the prior holding.  Furthermore, any right to certify must be limited to cases before the BIA, and to actual disputes between the parties arising in the proceedings below.

Revamp Immigration Judge Training:  This is more important than it might sound.  Conservative commentator Nolan Rappaport has commented on the inadequacy of Immigration Judge training, particularly where many recent appointees come to the bench with no prior immigration experience.  This problem predates the present administration.  Under Attorneys General Holder and Lynch, the BIA in particular was extremely resistant to exposing its judges and attorneys to views not considered part of the official party line.  During that period, I was amazed at how the BIA’s vice-chair (who continues to hold that position up to present) viewed respected immigration experts as the enemy, and employed a director of training and subject matter experts whose only qualification was their willingness to shield EOIR employees from outside sources.  This problem has worsened over the past four years.  A committee including not only those within EOIR, but also academics and members of the private bar should be formed to completely rethink the curriculum and resources available to judges and support staff.

Copyright 2020 Jeffrey S. Chase.  All rights reserved. Reprinted with permission.

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

Jeffrey’s point on training is particularly well-taken. This has been a festering “below the radar screen” problem at EOIR for decades. 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Jeffrey’s analysis supports my call for the immediate end of the “EOIR Clown Show” and the replacement of EOIR Senior “Management” and the entire BIA with expert “practical scholars” from the NDPA. Indeed, one of the most grossly “underrepresented” groups in the current Immigration Judiciary are those who gained their expertise and courtroom knowledge as clinical professors! That group includes some of the finest legal minds I have run across in nearly 50 years of government, “big law,” and academic practice.

In my experience, EOIR training ranged from the “minimally adequate,” to the sadly comical, to the overtly insulting. In the latter category were the years we had no in person training and were sent a series of “mandatory videos.” Some were inaudible; others wrong or misleading; a few were actually reprises of BIA “staff brown bag lunches.” “Amateur Night at The Bijou” to be sure!

It was not that the resources weren’t available. We had among our ranks colleagues like Judge Dana Marks, one of the “Founding Mothers” of U.S. asylum law, who successfully argued the landmark Cardoza-Fonseca (“well-founded fear”) case before the Supreme Court as a private lawyer; and Board Member/Appellate Immigration Judge Lory D. Rosenberg, to my knowledge the only EOIR judge at any level whose legal analysis was favorably cited by name by the Supreme Court in the St. Cyr case (212(c) waiver retroactivity). 

Yet instead of getting insights and pointers from these and other luminaries of modern immigration and asylum law, we often were treated to government litigators telling us how to narrowly interpret asylum law or make denial decisions “easier to defend” in the Circuit Courts. One government prosecutor famously informed us that we weren’t really “judges” at all but simply “highly paid immigration inspectors working for the Attorney General.” 

Others told us that as “mere DOJ attorneys” we weren’t allowed to claim status as “administrative judges” for state bar purposes, even though by law we were barred from performing non-adjudicative legal functions. This is the kind of nonsense on which some of our limited “training time” was spent. Still others told us that although Congress had granted us statutory contempt authority, the Attorney General was withholding it because we shouldn’t be allowed to hold “other government attorneys” (that is, INS/DHS prosecutors) accountable for their conduct in our “courts” (which, clearly, these bureaucrats didn’t consider “courts” at all, except, perhaps, when arguing against judicial review by the Article IIIs).

Training is important! Many of the Circuit Court reversals highlighted in “Courtside” and on Jeffrey’s blog show grossly deficient understanding and application at both the trial and appellate levels of EOIR of the fundamentals of immigration and asylum law — things like standards of proof, considering all the evidence, judging credibility, and following Circuit and sometimes even BIA precedents favorable to respondents. 

This isn’t “rocket science!” They are the “x’s and o’s” of basic due process and fair immigration adjudication. Yet, all too often, EOIR “expert” tribunals (that really aren’t) come up short. Indeed very few members of today’s EOIR judiciary would be generally recognized as “experts” in the field based on their lifetime body of work. A sad, but true, commentary. But, one that can and must be changed by the Biden-Harris Administration!

The BIA should not only be reconstituted as an true “expert tribunal,” along the line of a Circuit Court of Appeals, but as a tribunal that teaches, instructs, and promotes best practices through its jurisprudence.

And, contrary to some of the restrictionist commentary that I continue to read, asylum law following Cardoza, Mogharrabi, the Refugee Act of 1980, and the U.N. Convention & Protocol from which it flows is neither intentionally narrow nor inherently restrictive. As indicated in Cardoza, it could and should properly be interpreted generously and humanely to grant life-saving protection wherever possible. The purpose of the Convention was to set forth legal minimums while inspiring greater protections along those lines. 

The “spirit of Cardoza and Mogharrabi have long been lost, and now gleefully exorcised at the “EOIR Clown Show.” It’s past time for the appointment of competent, expert EOIR judges and administrators from the NDPA. Those who are intellectual leaders with moral courage who will insist on its long overdue restoration and fulfillment of this spirit!

Due Process Forever!

PWS

12-15-20

⚠️⚠️PRACTICE ALERT FOR ASYLUM SEEKERS FROM NDPA ALL-STAR PROFESSOR LINDSAY HARRIS! — Filing for Asylum Before January 11, 2021!

Professor Lindsay Muir Harris
Professor Lindsay Muir Harris
UDC Law

Alert for Asylum Seekers – Consult with an Immigration Attorney if you Haven’t Filed your Case before January 11, 2020

 

Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the public and immigrant advocates submitted close to 90,000 public comments. The Government changed some of the proposed rules, slightly, but the new rules are set to go into effect on January 11, 2021. There will likely be legal challenges (lawsuits) to try to stop the regulations from going into effect. But, it’s always hard to tell what will happen. One of the changes made between July 15, 2020 and December 2020 to the proposed rules is that they will not be retroactive. This means that they will not apply to anyone who has filed their I-589 Application for asylum before January 11, 2021. The Government is saying that the new rules will apply now and despite any legal challenge to any sections that the Government views as simply codifying existing case law. But, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the U.S. If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021. If you are an asylum seeker in need of assistance, please contact Lindsay.harris@udc.edu, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.

 

 

 

Lindsay M. Harris (she/her/hers)

Associate Professor of Law

Director, Immigration & Human Rights Clinic

University of the District of Columbia

David A. Clarke school of Law

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

Thanks Lindsay, my friend!

One of the points that I can’t overemphasize is the importance of getting legal assistance to fully, carefully, and accurately fill out the asylum application (Form I-589). 

Variances between the written application and supporting documentation and testimony before the Asylum Office or Immigration Court have always been problematic.

But, under the current White Nationalist restrictionist regime, Asylum Officers and Immigration Judges  are encouraged to “fly speck” asylum applications for any variances, no matter how minor, that can be used to find the applicant “not credible.” While this is both a violation of the statute and the case law in most Circuits, it’s a reality that asylum applicants must deal with.

It’s a particular problem given the hiring of many new Immigration Judges with no expertise in asylum laws, no sympathy for asylum seekers, no experience representing asylum seekers, subject to production quotas that encourage them to use “any reason to deny” an asylum application, and basically imbued with the “propaganda” that most asylum applications are without merit.

My own experience, although now in the past, is that many asylum seekers incorrectly assume that the Form I-589 is just a “rough outline” of the claim and that they will be allowed to fill in blanks, obtain additional documentation, and explain problems in full at a later time. That wasn’t true in the past, and is even less so now.

What and how things are said in the written asylum application can have a determinative effect before both the Asylum Office and the Immigration Court! “First instance denials” by Immigration Judges are very hard to reverse on appeal, particularly when based on “adverse credibility rulings.” 

So, preparing the application carefully with assistance from someone who understands exactly how the Immigraton Court system works (or doesn’t) is essential!

Due Process Forever!

PWS

12-14-20

NYT: 🇺🇸 DREAMER RELIEF🗽 IS ONE OF THE WIDELY POPULAR 👍🏼 INITIATIVES THAT THE BIDEN-HARRIS ADMINISTRATION SHOULD QUICKLY UNDERTAKE!

https://www.nytimes.com/2020/12/12/opinion/joe-biden-america.html

From the NYT Editorial Board:

. . . .

Even in the hot-button area of immigration, most Americans agree on the need to address the plight of so-called Dreamers, the undocumented immigrants brought to the United States as children. A Pew poll this summer showed that around three-quarters of Americans, including a majority of Republicans, favor granting them permanent legal status. If lawmakers could stop demagoguing long enough to pass a version of the Dream Act, iterations of which have been circulating for a while, the majority of Americans would be grateful.

Consider all of this a starting point — with other, even more promising avenues out there to explore. As always, the details matter. So does the degree to which lawmakers in both parties decide that it’s in their political interest to gum up the works. Mr. Biden and, perhaps more important, American voters will need to make clear their expectations for action and bring the necessary pressure to bear. There is common ground to be found in a host of policy areas. Political leaders should be pressed to cultivate it.

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

Read the rest of the NYT Editorial Board’s suggestions at the link.

Sounds like a good starting point for moving forward with humanitarian actions that will benefit the common good. 

In the past, the problem has been in the details of exactly what “relief” is (e.g., will it include a “path to citizenship,” and , if so, how arduous?) and who qualifies (the DACA program had a June 15, 2102 “cutoff” date, and not all of those eligible actually registered, some for fear that the information would be used to deport them). But, without Stephen Miller fouling up the works, the chances of success should be vastly improved

Let’s hope it gets done and in a fittingly generous and inclusive manner ASAP! That’s particularly true in light of the contributions that many in the DACA program have made as “essential workers” during the pandemic!

PWS

12-14-20

NAN ARON OF ALLIANCE FOR JUSTICE⚖️SPEAKS OUT ON NEED FOR BIDEN-HARRIS ADMINISTRATION TO LOOK AT BROADER SOURCES FOR FEDERAL JUDICIAL CANDIDATES 🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️!

Nan Aron
Nan Aron
Founder & President
Alliance for Justice (“AFJ”); Photo: AFJ.org

https://www.nytimes.com/2020/12/11/us/progressive-groups-biden-judges.html?referringSource=articleShare

Carl Hulse reports for the NY Times:

. . . .

In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.

“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”

. . . .

The progressives say that Democrats must use whatever leverage they can to press their nominees.

“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”

Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.

“I see opportunity here,” Mr. Feingold said.

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

Thanks Nan! Read the rest of the article at the above link!

I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary. 

That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

The mess at EOIR needs immediate attention and aggressive due process reforms. This  is no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here. 

Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.

Sadly, the independence, expertise, and due process performance of  EOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.

The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does! 

A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”

This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon! 

Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!

Due Process Forever!⚖️🗽👍🏼

PWS

12-13-20

HON. “SIR” JEFFREY S. CHASE⚔️🛡: WHAT DOES GOVERNMENT CORRUPTION👎🏻, EXTREME INTELLECTUAL DISHONESTY☠️, & WHITE NATIONALISM 🏴‍☠️ LOOK LIKE? — EOIR!🤮— Repeat After Me: “Hey Hey, Ho, Ho, The EOIR Clown Show🤡 Has Got To Go!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

https://www.jeffreyschase.com/blog/2020/12/12/eoirs-new-math

EOIR’s New Math

I’m going to use a baseball analogy here (with apologies to non-fans):  DJ LeMahieu finished this past season as the American League batting champion.  Imagine if he were to walk in to negotiate a new contract with the New York Yankees, only to be offered the minimum permissible contract because of his disappointing performance.  When a shocked LeMahieu would respond “but I hit .364 last season!,” the Yankees general manager would reply “Not even close.”

The Yankees would explain that they are no longer employing the traditional method of calculating batting average, but have come up with a “better” approach.  A confused LeMahieu would note that he had 71 hits in 195 at bats.  The Yankees would respond that he appeared at the plate 216 times, if one includes “other” outcomes, such as  walks, hit-by-pitch, and sacrifices.  LeMahieu would point out that those have not counted in calculating batting average before; the Yankees would respond “Well, now they do.”  The Yankees would next point out that LeMahieu had not played in 12 of the team’s games last season, due to injury.  The team therefore estimated another 48 plate appearances that the player could have had, and calculated those into his batting average as “non-hits.”  Lastly, the team would note that the season was shortened by 102 games due to the pandemic, covering another 408 plate appearances.  By the time they were done, the Yankees would conclude that LeMahieu had actually batted .107, certainly not Major League quality hitting.1   The Yankees would add that few if any teams would even be negotiating with a .107 hitter, much less offering them a contract.

The above purely fictitious, imaginary scenario is offered to illustrate EOIR’s very real current approach to its published asylum statistics.  The Trump Administration has from day one taken the position that all asylum claims are false in order to justify its inhumane treatment of genuine refugees.  However, such a claim is undermined when the Justice Department’s own judges are granting asylum in those very cases.   It was therefore up to EOIR to offer the type of “alternative facts” that are a trademark of this administration.

EOIR has for many years published an annual Statistical Yearbook, which has included asylum grant rates nationally for all immigration courts.  But recently, EOIR put out a chart entitled “Executive Office for Immigration Review Adjudication Statistics,” and subtitled “Asylum Decision Rates.”  The top half of the chart contains a graph that is only slightly less difficult to follow than Rudy Giuliani’s latest election conspiracy theories.  Below that is a chart containing asylum grant rates for the years 2008 through 2020.

Interestingly, the grant rates listed on this latest chart (using what I’ll call EOIR’s new “Larger Inclusion Asylum & Refugee Statistics,” or “LIARS” for short) are strikingly different than the numbers in the EOIR Yearbooks:

Year EOIR Statistical Yearbook LIARS Figures

2008 45% granted         23.68% granted

2009 48%                 23.92%

2010 51%                 25.34%

2011 52%                       31.36%

2012 56%                 30.55%

2013 53%                 24.93%

2014 49%                 22.84%

2015 48%                 18.70%

2016 43%                 15.80%

There is quite a difference between a grant rate of 48 percent or 18.7 percent for 2015.  So how were the LIARS figures derived?

Well, in addition to asylum grants and asylum denials (i.e. the only two figures that should matter), the LIARS figures added two more categories to the equation.  The first new category is “Other.”  A footnote explains (if that’s the correct word) that “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.”  The explanation that “other” includes “other” didn’t clear things up for me.  Nevertheless, it seems that these were cases that did not involve either a grant or a denial of asylum, and thus shouldn’t be part of the calculation, much like walks, hit by pitch, and sacrifices are not considered in batting average calculations.  The reason those outcomes don’t count in baseball is because they are not indicative of the batter’s ability to get a hit, since no opportunity was available.  Similarly, an asylum case that did not proceed to an actual decision is not indicative of the merits of the application.  For example, an asylum applicant who subsequently became eligible for a faster, easier path to legal status because they married a U.S. citizen or won the visa lottery in no way indicates that their asylum claim wasn’t meritorious.

The second new LIARS category involves cases that were administratively closed.  This is the equivalent of games not played in the baseball analogy.  A case administratively closed is taken off the docket and not tried; it’s a hearing not held.  EOIR is now choosing to consider it as a “non-grant”  in its  calculations, thus reducing the grant rate to the same degree as if the hearing was held and asylum was denied.  In 2015, the two new categories that shouldn’t have been considered equaled 60.94 percent of the total cases considered by LIARS (comparable to the 102 games not played in 2020 by the Yankees, which constitutes 63 percent of a normal length season).  To summarize, the real (Statistical Yearbook) grant rate of 48% in 2015 was derived based on 8,246 asylum grants out of 17,079 total asylum cases decided that year.  The LIARS grant rate of 18.70  considered 8,076 asylum grants (i.e. 170 less than listed in the 2015 Statistical Yearbook) out of a total of 43,189 cases consisting of grants, denials, other, and administratively closed hearings in which the asylum claim was never heard.  I have no idea how LIARS reduced the number of grants in 2015 by 170 cases.

The EOIR Statistical Yearbook contains an additional chart which includes cases in which withholding of removal was granted.  In  2015, fifty-five percent of asylum applicants were granted either asylum or withholding of removal.  The LIARS figures make no mention of withholding of removal.  If grants of that alternative relief were hidden in the “Other: other” category, they would have been counted as cases in which asylum was not granted, which would lower the grant rate in the same way as a denial.

This might all seem like mere pettiness on EOIR’s part, but the administration uses these numbers in press releases (such as its infamous “Myths vs. Facts” sheet which remains posted on EOIR’s website).  It also emboldens the administration to claim it is merely “increasing efficiency” in passing new rules to quickly deny and deport asylum seekers by “efficiently” rendering all of them ineligible for relief.2  Such a statement depends on an underlying belief in the illegitimacy of the claims of those being quickly denied and deported, an illegitimacy that seeks support from the doctored numbers.  Where the true numbers show a much higher rate of asylum claims granted, how could efficiency be used to justify sending actual refugees home to die?3

I wonder who came up with this new system.  As I don’t know the answer, let’s call them “other.”  Maybe they can spend the final weeks until January 20 devising a new chart, titled “Who should no longer be a government employee as of January 21, 2021?”  To get them started, here are a few easy ones: (1) EOIR Director James McHenry: 100%.  (2) Every EOIR manager who enabled him over the past four years: 100%.  (3) Other: 100%.

Notes:

  1. The infamous “Mendoza Line,” which denotes a batting average of .200, is usually considered “the offensive threshold below which a player’s presence on a Major League Baseball team cannot be justified,” according to Wikipedia.
  2. The administration’s latest rules, scheduled to take effect on January 10, would make the manipulation of asylum grant rates unnecessary as to future claims, as virtually no one would remain eligible for such relief. One can only hope that courts will block those rules until they can be withdrawn by the Biden administration.
  3. To be clear, no grant rate would ever  justify sending even a single refugee to their death in the name of efficiency.

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Reprinted with permission.

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A test of the Biden-Harris Administration’s seriousness about equal justice and restoring human dignity to immigrants will be how quickly the members of the EOIR Kakistocracy, including the BIA, are removed from their positions and replaced by real judges and judicial administrators. That is, “practical scholar-experts” with demonstrated immigration/human rights expertise, applied due process experience, and the guts and integrity to stand up for the rights of individuals who have been unfairly victimized by a vile, White Nationalist, nativist agenda!

Not rocket science!

Due Process Forever!

PWS

12-12-20

MAJOR CONTRAST: AS EOIR CLOWN 🤡☠️⚰️SHOW CEMENTS ITS ROLE AS NOTORIOUS HUMAN RIGHTS ABUSER 🏴‍☠️🤮, THE ROUND TABLE 🛡⚔️ HELPS SAVE LIVES 🗽 AT EVERY LEVEL OF OUR SYSTEM⚖️!

Knightess
Knightess of the Round Table
Jeffrey S. Chase
Hon. Jeffrey S. “Sir Jeffrey” Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

More great news from Sir Jeffrey:

Hi all:  We filed an amicus brief with the Third Circuit last year in a domestic violence withholding and CAT claim from Mexico.  The BIA acknowledged that the petitioner was beaten four or five times a month by her abuser; was raped by him several times, and then lost her job as an agro-engineer with a government agency in Mexico after her abuser beat her violently in front of her co-workers, and her employer told her she could not publicly represent the agency with the resulting bruises on her face.  The BIA further recognized that her abuser was able to locate her when she tried to relocate within Mexico.  And yet withholding was denied on nexus, and CAT denied on government acquiescence grounds.

A number of other groups, including CGRS, filed amicus briefs as well, and OILu moved to remand under favorable terms.  Anju Gupta at Rutgers, who represents the petitioner, said that today, the IJ  (who was very much made aware of all of the amicus briefs) granted CAT relief.

The email said that the petitioner (who was previously detained at Elizabeth, NJ) is now in Mexico (I’m not clear on the details), but will hopefully be able to return soon based on the grant.

It’s great that we continue to make a positive difference.

Best, Jeff

**********

Wow! What a great holiday present!

What a great group with a great mission of promoting due process, advocating for equal justice, and saving lives! Every member of the Round Table has saved lives by standing up for the human dignity and legal rights of those who came before us in Immigration Court. And, we continue to “fight the good fight,” in every possible way at every level of the justice system!

Due Process Forever!

PWS

PATHETIC LOSER THOUGH THEIR SUPREME LEADER 🤡🤮MIGHT BE, THERE IS NOTHING FUNNY ABOUT THE GOP’S OUTRAGEOUS, OVERT, SUBVERSION OF DEMOCRACY — Jamelle Bouie in The NYT

Jamelle Bouie
Jamelle Bouie
NY Times Opinion Columnist
Creative Commons License

https://www.nytimes.com/2020/12/11/opinion/trump-republicans-texas-lawsuit.html

. . . .

Then again, it was only two weeks before Election Day that four of the court’s conservatives announced their potential willingness to throw out votes on the basis of this theory of state legislative supremacy over electoral votes. It is very easy to imagine a world in which the election was a little closer, where the outcome came down to one state instead of three or four, and the court’s conservatives could use the conflict over a narrow margin to hand the president a second term.

With no evidence that Republicans have really thought about the implications of a victory in the courts, I think we can say that these briefs and lawsuits are part of a performance, where the game is not to break kayfabe (the conceit, in professional wrestling, that what is fake is real). Still, we’ve learned something from this game, in the same way we learn something about an audience when it laughs.

We have learned that the Republican Party, or much of it, has abandoned whatever commitment to electoral democracy it had to begin with. That it views defeat on its face as illegitimate, a product of fraud concocted by opponents who don’t deserve to hold power. That it is fully the party of minority rule, committed to the idea that a vote doesn’t count if it isn’t for its candidates, and that if democracy won’t serve its partisan and ideological interests, then so much for democracy.

None of this is new — there is a whole tradition of reactionary, counter-majoritarian thought in American politics to which the conservative movement is heir — but it is the first time since the 1850s that these ideas have nearly captured an entire political party. And while the future is unwritten, the events of the past month make me worry that we’re following a script the climax of which requires a disaster.

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Read Jamelle’s full op-Ed at the link.

Always interesting for those of us who grew up during the Cold War, to see how the Commie-fighting, “law and order” GOP has become a party of neo-Stalinists and nihilists!

Although the GOP right claims to shudder at the threat of ”socialism,” (most probably have little or no idea what that actually means) dangerous clowns 🤡 like Ted Cruz would have been right at home in a Leninist-Stalinist dictatorship, its cult of personality, its utter disdain for the “real will of the people” and the common good, and its brutal suppression of both truth and dissent in favor of a politically fabricated “party line.”

America needs and deserves better from its opposition party. Whether we’ll get it seems doubtful based on current performance.

PWS

12-11-20