🏴‍☠️☠️👎🏽GROUPS EXPOSE RACISM, MYTHS IN BIDEN ADMINISTRATION’S ABUSE OF HAITIAN ASYLUM SEEKERS! — “Each day that the Title 42 policy remains in effect, it places Haitians directly in harm’s way.”

 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

https://cgrs.uchastings.edu/sites/default/files/Tijuana%20Factsheet_2022.04.07%20FINAL%20v2_0.pdf

Protection Delayed is Protection Denied:i Factsheet on Title 42 Expulsions, Haitian Asylum Seekers in Tijuana, and the U.S. Government’s Ongoing Evasion of Duty

April 7, 2022

An estimated 10,000 Black migrants, predominantly asylum seekers from Haiti, currently reside in Tijuana where they face discrimination and violence.ii Since the imposition of Title 42, the United States has refused to permit nearly all individuals their legal right to seek asylum and has instead conducted mass expulsions.iii Title 42 has had a particularly devastating impact on Haitians, who have been expelled en masse without being screened for their fear of harm in Haiti despite “obligations under both domestic and international law that prohibit return of individuals to persecution and torture.”iv

Most Haitians arrive in Mexico following a dangerous overland route from Brazil or Chile; these countries took in Haitian nationals in the wake of Haiti’s devastating magnitude 7.0 earthquake in 2010.v The aftermath of the 2010 earthquake remains significant: it claimed between 200,000- 300,000 lives, left over a million people homeless, and set in motion a decade of political instability, impunity, and violence.vi

In July 2021, Haitian President Jovenel Moïse was assassinated.vii In August 2021, another magnitude 7.2 earthquake struck the country.viii A devastating tropical storm followed just two days later. The destruction from the powerful natural disasters overlayed onto the political power vacuum, exacerbating the already dire conditions. 4.3 million Haitians are experiencing acute food insecurity, fuel shortages and blackouts are the norm, and 1.5 million Haitians have been affected by gang violence.ix Complicity between state officials and criminal gangs has been documented, including incidents where “perpetrators raped and tortured residents based on political associations.”x According to Human Rights Watch, “the justice system can barely operate in a context of security and institutional breakdowns” and thus people in Haiti “face a high risk of violence and have no effective access to protection or justice.”xi

The United States recognized the dangers posed to people if they are returned to Haiti and granted an 18-month Temporary Protected Status (TPS) to prevent deportations of any Haitian people already present in the country before July 29, 2021.xii Despite this limited protection, over 20,000 people have been returned to Haiti during the first year of the Biden administration.xiii Many of those expelled had been in a makeshift encampment in Del Rio, Texas in September 2021, where they were denied access to sufficient food, water, and medical care.xiv Many were also subjected to physical violence and intimidation. The last several months have seen expulsions occur unabated with the Department of Homeland Security (DHS) conducting “near daily flights to Haiti.”xv Additional flights of adults and families with babies and young children are scheduled for April. The majority of these returns occur under Title 42, denying individuals the chance to apply for asylum, even if they requested it and face dangers which would qualify them for protection.xvi

1

The information in this factsheet was compiled from interviews conducted from March 7-11, 2022, by a delegation from the University of California, Hastings College of the Law’s Hastings-to-Haiti Partnership (HHP) organization in collaboration with the Center for Gender & Refugee Studies (CGRS), the Haitian Bridge Alliance (HBA), and the École Supérieure Catholique de Droit de Jérémie (ESCDROJ). The delegation interviewed 123 Haitians across six different shelters in Tijuana. Interviewees were asked about why they left Haiti and what they have experienced as Black Kreyol-speakers traveling through Mexico and other Latin American countries.

There is a common misconception that Haitians are “economic migrants” and not refugees entitled to protection. But the stories revealed in these interviews belie such assertions. Haitians face imminent threats to their physical safety, and even death, should they be returned to the country—and face further dangers in Mexico—and they should have the opportunity to claim their legal right to asylum and reunify with family members in the United States.xvii Each day that the Title 42 policy remains in effect, it places Haitians directly in harm’s way.

. . . .

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

Read the complete report at the link.

The conclusions and recommendations are, not surprisingly, similar to some I have made. See, e.g., https://immigrationcourtside.com/wp-admin/about.php

But, given the extraordinarily poor performance of the Biden Administration on racial justice issues relating to asylum at the border, I’m afraid that the preparation to make the asylum system function in a fair and orderly manner come May 23 is going to fall largely to NGOs and advocates. 

Of particularly disturbing note is the Garland DOJ’s total failure to intervene to stop the blatant and illegal racism at our border and to vindicate the rule of law! Indeed, Garland’s failure to reorganize EOIR and hire competent, expert administrators and judges to take charge of his broken, backlogged, and biased asylum system is likely to be a “stone around the neck of justice” as we move forward. 

But, expecting the Biden Administration to stand up for racial justice for Haitians and other non-White asylum seekers at the border unfortunately appears to be wishful thinking. 

🇺🇸Due Process Forever!

PWS

04-08-22

DAN RATHER & ELLIOTT KIRSCHNER: 🇺🇸⚖️🗽👩🏾‍⚖️CELEBRATING JUSTICE KETANJI BROWN JACKSON: “As much as the Republicans tried to undermine Justice Jackson with epithets of being an extremist, it is they who I believe history will judge as out of touch with the heart of this nation, and especially its future.” YUP!

Justice Katenji Brown Jackson
Judge (now Justice) Ketanji Brown Jackson, honoree at the Third Annual Judge James B. Parsons Legacy Dinner, February 24, 2020, University of Chicago Law School. Photographer Lloyd DeGrane.
Creative Commons License

A New Justice

Welcome Ketanji Brown Jackson to the Supreme Court

Dan Rather and Elliot Kirschner
Apr 7 pastedGraphic.png pastedGraphic_1.png pastedGraphic_2.png

It is official. There is a new justice on the United States Supreme Court, and a justice unlike any in our nation’s history.Despite all the problems this nation faces, despite the sordidness of the confirmation process, despite the rank hypocrisy, bombast, and lies Republican senators and their media echo chambers employed, let us not allow any of this to distract from a celebration of Justice Ketanji Brown Jackson and her moment.

Justice Jackson is not only a symbol, she is a person. And like so many trailblazers before her, she has had to weather attacks on her character, her values, her intelligence, her right to be part of a society still plagued by the legacy of centuries of oppression and injustice.

If ever there were a live demonstration of judicial temperament, it was Justice Jackson’s testimony in her confirmation hearings. She was in a position known all too well to marginalized segments of American society, particularly Black women. She had to be better, do better, be more poised, absorb more outrage, and bite her tongue while those with privilege are given benefits of doubt she will never be offered and allowed to act in ways that never would have been tolerated from her. Indeed, we have seen exactly this double standard in recent Supreme Court confirmation hearings.

Justice Jackson persevered. And she did so in a way that should give us confidence as to what kind of justice she will be. In a court that has been highly politicized by the actions of Republicans in the Senate and the White House, her voice will represent a very different perspective: an America of diversity, of obstacles and opportunity, of the rule of law, of humility, and of justice broadly defined.

Every Supreme Court justice represents to some extent a leap into the unknown. But recently, we have seen the entire judicial system increasingly become a competition between teams of judges whose actions are highly predictable. This is regrettable. The act of judgment should be one of listening, reading, and weighing the arguments. Everything we saw from Justice Jackson suggests she will embrace this role.

Even with the addition of Justice Jackson, we will still have a Supreme Court out of balance. It tilts heavily toward a far-right worldview that, if the polling is to be believed, is out of step with the majority of the American public.

As much as the Republicans tried to undermine Justice Jackson with epithets of being an extremist, it is they who I believe history will judge as out of touch with the heart of this nation, and especially its future.

Now, going forward, Justice Jackson will bring a new voice to those marbled halls, one who can bear witness to what this nation is, and where it is going.

Her presence itself will not fix the myriad problems we face; our challenges defy easy answers or simple remedies. But Justice Jackson personifies the hope that change is possible, that progress can be our path going forward. We celebrate her today as a unique legal mind and as someone whose service to this nation and its best traditions can give us a reason for new flickers of optimism. If she hasn’t given up on what America can be, then neither should we.

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Many, many congrats to Justice Jackson, one of our greatest living jurists, whose career exemplifies that to which the Federal Judiciary should aspire!

Justice Jackson is exactly the type of judge we need not only on the Supremes and the lower Article III Courts, but also on the Board of Immigration Appeals and on the nation’s Immigration Courts!

But, in this case, the obstacle isn’t Republicans! No, it’s the Dems — the Biden Administration and AG Garland! They stubbornly refuse to treat the U.S. Immigration Courts, which they control 100%, as if THEIR lives and futures depended upon it! 

I fear that in the Biden Administration’s rather half-hearted effort to restore asylum law at the border, we will see the consequences of not having acted timely to appoint a BIA of “real judges.” That is, asylum experts with the credibility, courage, independence, scholarly credentials, and practical experience in Immigration Court to establish fair, practical precedents to guide both Immigration Judges and Asylum Officers in the fair, consistent, and timely adjudication of claims for protection at the border and in the interior. They are also necessary to bring due process and best practices to a system that for years has openly mocked both — and largely gotten away with it, at the expense of the rule of law and the good of humanity.    

You can be sure that the next GOP AG won’t new so hesitant and stumbling about finishing the job of “weaponizing” the Immigration Courts as a tool to be used to “Dred Scottify the other” in American society!

I have no doubt that in the future, Justice Jackson will speak out against “Dred Scottification” when it comes before her on the Court — albeit likely in dissent, given the Supremes’ far right swing. Ironically, however, the appointment of “more Justice Jacksons” to the U.S. Immigration Courts would have a much greater substantive effect than her appointment to the Supremes! Not only would such “real judges” upgrade the practice of law — throughout the nation and in all Federal Courts — but they would stop the practice of “Dred Scottification” at the retail level — where it literally affects millions of lives. It would be “outcome determinative” in thousands of cases now being incorrectly decided — or not decided at all.

That Garland is too blind and/or disinterested to understand the cosmic importance of the Immigration Courts to American justice and the need to act boldly and rapidly to reform his dysfunctional and flagrantly unfair “courts” is nothing short of a national tragedy — one for which the most vulnerable and those fearlessly assisting them continue to pay a high price! 

🇺🇸Due Process Forever!

PWS

04-07-22

🗽“RAPID PROCESSING” BY DHS WORKING FOR WHITE REFUGEES @ SOUTHERN BORDER! — WHY NOT ALSO FOR REFUGEES OF COLOR WHO HAVE WAITED MONTHS OR YEARS FOR JUSTICE?⚖️

 

https://www.sandiegouniontribune.com/news/border-baja-california/story/2022-04-06/cbp-ukrainians-pedwest

Roughly 2,300 Ukrainians fleeing the Russian invasion are currently waiting in Tijuana, according to the mayor’s office

BY KATE MORRISSEYALEXANDRA MENDOZA

Kate Morrissey
Kate Morrissey
Immigration & Human Rights Reporter
San Diego Union Tribune

APRIL 6, 2022 1:33 PM PT

Customs and Border Protection officials are now processing Ukrainians fleeing Russia’s invasion of their country at the San Diego-Tijuana border through a pedestrian crossing that remains closed to the general public.

The move, according to volunteers helping the Ukrainians and the Tijuana mayor’s office, is to speed up how many Ukrainians border officials can process in a day. PedWest, the pedestrian crossing at the western end of the San Ysidro Port of Entry, has been closed to general traffic for the past two years.

At around 6 a.m. Wednesday morning, a busload of Ukrainians arrived at El Chaparral plaza on the south side of the crossing. That is where a camp of hundreds of mostly Central American and Mexican asylum seekers were camped for months, waiting for the Biden administration to open processing for refugee screenings. Mexican authorities bulldozed the camp in February, and the Biden administration has said that asylum processing won’t resume until May 23, with the exception of the Ukrainians.

. . . .

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

The rest of the story is at the link.

I’ve been advocating (obviously unsuccessfully) for this type of preferred processing of asylum applicants to be applied to ALL NATIONALITIES, regardless of race or ethnicity, in advance of the May 23 date for the end of the Title 42 charade. https://immigrationcourtside.com/2022/04/02/%f0%9f%97%bd%e2%9a%96%ef%b8%8f-cdc-announces-end-of-covid-bar-but-only-7-weeks-from-now-compare-what-dhs-should-have-said-with-what-they-did-say-with-51/

DHS, with the assistance of NGOs, UNHCR, and other volunteers from the human rights community can screen those waiting over the next six weeks to insure that applicants with the strongest claims are moved to the front of the line in advance or even admitted under an “exception” (DHS seems to be able to invent these at their whim) before May 23.

That’s the way to establish an orderly, fair, and humane transition back to the rule of law at all border ports of entry!  

Additionally, because Garland has basically abdicated his duty to restructure and restaff the Immigration Courts to provide fair, positive interpretations of what asylum cases should be granted and to establish practical evidentiary and proof standards, the Asylum Office can work with the UNHCR and asylum experts to fill the gap. 

While the BIA might be intentionally short on positive asylum guidance, there are plenty of decent Circuit decisions and some unpublished IJ decisions out there that point the way toward a fair, generous, functional legal asylum system that will actually fulfill the humanitarian promise of older precedents. Cases such as the Supreme’s decision in Cardoza Fonseca; the BIA’s complimentary positive guidance in cases like Matter of Mogharrabi, Matter of Kasinga, Matter of O-Z- & I-Z-, and Matter of A-R-C-G-; and the regulations establishing a “presumption of future persecution” based on past persecution all point the way toward a much more generous, practical, and humane interpretation and application of U.S. asylum law. 

Honest interpretations of asylum law disgracefully fell into disuse as the Trump regime improperly “weaponized” the Immigration Courts against asylum seekers and attempted to replace qualified Asylum Officers with patently unqualified Border Patrol Agents. But, despite a lackadaisical performance to date, the Biden Administration still has a golden opportunity to reverse the mistakes of the past and to lead the way to a better future. Whether they will take that opportunity remains to be seen! 

🇺🇸Due Process Forever!

PWS

04-07-22

🤯WILL DEMS BLOW CHANCE TO UNITE AGAINST RACISM & SHOW HOW RULE OF LAW WORKS FOR ASYLUM SEEKERS @ BORDER? —“[W]hy shouldn’t it be a win for the president, too, comporting to his pledge for a more humane immigration system?”🗽⚖️🇺🇸

https://www.dailykos.com/story/2022/4/5/2090184/-GOP-states-waste-no-time-suing-over-Biden-admin-s-termination-of-anti-asylum-Title-42-policy

Gabe Ortiz
Gabe Ortiz
Staff Writer
The Daily Kos
PHOTO: dailycos.com

Gabe Ortiz in the Daily Kos:

. . . .

Republicans will use Title 42’s rollback “to fearmonger in an election year, using nativist talking points based on falsehoods,” The Boston Globe columnist Marcela García writes. “An invasion is coming! Expect chaos at the border! Yet those sound bites ignore the fact that Title 42 utterly failed even as a border management mechanism: Data show that migrant encounters surged to a record high during the policy.”

Marcela Garcia
Marcela Garcia
Associate
Editor and Columnist
Boston Globe
PICTURE: bostonglobe.com

“For Biden and the Democrats, the end of this disastrous policy should not be framed as a political headache, butas an opportunity to demonstrate that it is possible and suitable to process asylum applications in an orderly, legal, and humane way at the US-Mexico border,” she continued, noting new policy intended to speed up asylum processing, and a plan “that includes directing more resources and personnel to the southern border.”

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Aaron Reichlin-Melnick

@ReichlinMelnick

·

Apr 5, 2022

What a mess. Everyone is now openly admitting Title 42 has nothing to do with public health and speaking of it purely in terms of an immigration deterrent—which it isn’t. Title 42 drove up apprehension numbers! There have been 750,000 repeat crossings thanks to Title 42.

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Marianne LeVine

@marianne_levine

Tester:”Ending Title 42 is expected to cause a significant increase of migration to the United States and put more pressure on an already broken system. These problems do not only affect the southern border, but put more strain on those working to secure the northern border”

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Aaron Reichlin-Melnick

@ReichlinMelnick

The amount of lies and misinformation about Title 42 is hitting a fever pitch. Title 42 has been an abject failure. It’s not about public health and it’s a terrible deterrent.

It’s shut down the asylum system at the ports of entry and forced desperate people into crossing.

4:25 PM · Apr 5, 2022

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García is right. For as long as we can successfully keep this policy from continued use, it should be framed as a huge step forward for U.S. asylum law and a victory for vulnerable people who have been blocked from their U.S. asylum rights for more than two years. Isn’t restoring asylum law, especially in light of Russia’s invasion of Ukraine, undoubtedly a good thing? And why shouldn’t it be a win for the president, too, comporting to his pledge for a more humane immigration system?

Or we can just let Stephen Miller and racist border agents keep controlling the narrative, with his lies that restoring U.S. asylum rights “will mean armageddon,” and the agents’ union claiming supposed “mass chaos.”

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

It’s past time for ALL Dem pols and EVERYONE in the Biden Administration to stop enabling racist false narratives about refugees and asylum seekers (and, for Garland to stop “defending the indefensible”)! And, that means that one way or another, the Biden Administration needs to get off their tails and put in place a system to “process asylum applications in an orderly, legal, and humane way at the US-Mexico border.” 

It’s very possible! And, it’s no less than what Biden and other Dems promised when they ran in 2020 and solicited the votes of the human/rights, racial justice communities!

🇺🇸Due Process Forever!

PWS

04-07-22

☹️”TOO GOOD TO BE TRUE” — Asylum Seekers Stranded In Mexico See Promise To Lift Title 42 Blockade With Mixture Of Hope, Skepticism, & Confusion! — Under Trump, & Now Biden, U.S. Human Rights Laws & Our Constitution Have Become “Game Of Whack A Mole!” — Human Lives & The Rule Of Law A “Joke” To Border Patrol Agents!

Whack-A-Mole
The Biden Administration’s vision for asylum seekers is a game of chance with the odds rigged heavily against them.
Circus Circus Reno – 2021-11-14 – Sarah Stierch 05.jpg
Creative Commons License
Emily Green
Emily Green
Pulitzer Prize Winning Journalist
PHOTO: Twitter

 

Emily Green reports for Vice News:

https://www.vice.com/en/article/3abwb9/title-42-mexico-migrants-stuck

REYNOSA, Mexico — A 2-1/2 year old boy dragged an oversized suitcase along the sidewalk excitedly, on the edge of a cramped migrant encampment straddling the U.S.-Mexico border. Every few seconds, he looked behind him to make sure his parents were still there. But the boy wasn’t going anywhere, and the suitcase was empty, much like the yearned-for promise of being finally allowed to enter the United States. The boy, born in Brazil, and his parents, from Haiti, have spent five months living in a tent just feet from the U.S. border.

“We will stay here until we can go to the other side,” the boy’s father said.

On April 1, the Biden administration announced that on May 23, it will rescind Title 42, the pandemic-era, public-health policy that allowed for the automatic expulsion of more than a million migrants to Mexico and other countries. The policy is why the little boy and his parents hadn’t sought asylum. They’re scared that if they crossed into the U.S. and asked for protection, they’ll be deported to Haiti. They instead opted to wait in Reynosa, despite its reputation as one of Mexico’s most dangerous cities.

World News

The US Admitted a Group of Russians at the Border Under Secret Deal With Mexico

DAVID NORIEGA, DAVID MORA

03.28.22

The repeal of the Trump-era rule is expected to trigger an influx of migrants to the U.S.-Mexico border. Already, around 2,500 people are living in the public plaza here at the edge of the border, their tents packed together so tightly there’s barely room to walk. While the policy change won’t take effect for a month and a half, the response on both sides of the international line couldn’t be more different.

In the U.S., officials are busy expanding border facilities and sending more personnel to staff emergency operations. In Mexico meanwhile, most of the tens of thousands of asylum seekers who’ve been waiting for months to cross legally at a port of entry have received no information from authorities and seem completely in the dark about what’s to come. There are no guidelines for who gets to enter first, nor instructions about when and where to cross, or even a line to sign up for.

Compounding the confusion, many of the migrants have no idea why they were denied entry to the U.S to request asylum in the first place. They have only the vaguest notion of Title 42, and what its repeal could mean for them. The information they have largely comes via word of mouth, which human smugglers frequently spin to sell their services.

But migrants may be headed towards disappointment as Title 42 winds down and another restrictive immigration policy is likely ramped up.

World News

The US Admitted a Group of Russians at the Border Under Secret Deal With Mexico

DAVID NORIEGA, DAVID MORA

03.28.22

Jacki, a Honduran woman who has spent six months in the encampment with her four-year-old daughter, learned of Title 42’s end through a reporter (not this one). Jacki and the other migrants interviewed for this story declined to provide their last names. “We are all excited… but… I don’t know,” Jacki said. “It’s too good to be true.”

She may be right. Department of Homeland Security officials said that in the wake of winding down Title 42, it will increase its use of the policy known as Migrant Protection Protocols, or “Remain in Mexico,” which requires asylum seekers to wait in Mexico while their cases are decided. It’s possible that asylum seekers stranded in some of Mexico’s most dangerous border cities by Title 42 could finally enter the U.S. and ask for protection, only to be returned to Mexico under Remain in Mexico.

The Biden administration has also expanded “Remain in Mexico” to include Haitians, who make up the fastest-growing group of migrants in Reynosa. Even with Title 42 gone, gaining legal entry into the U.S. is uncertain at best.

For migrants, U.S. immigration policy can feel like a game of whack-a-mole. From Feb. 2021 to Dec. 2021, during Biden’s first year in office, immigration agents allowed roughly 29 percent of migrants encountered at the southern border to enter the U.S. and plead their case before an immigration judge, according to the American Immigration Council, which advocates on behalf of migrants. The rest were summarily expelled under Title 42 to Mexico or another country, or sent to ICE detention.

. . . .

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

Read the rest of Emily’s article at the link.

The way to start breaking backlogs and restoring confidence in the rule of law is to identify and prioritize asylum grants! 

That’s precisely the opposite of the misguided border policies that Administrations of both parties have followed for the past two decades: Move unrepresented individuals to the front of the line and issue lots of bogus in absentias and hasty denials in a perverted, and highly ineffective, attempt to use our legal system as a “deterrent” and to “send don’t come messages.”

The Biden Administration should have a team of trained Refugee Officers and Asylum Officers in Mexico, now, working with pro bono advocates and NGOs to identify and “pre-process/pre-approve” asylum cases that can be granted on May 23 or shortly thereafter. That would start clearing out the camps in Mexico, reducing processing backlogs, and lessening pressure on the Immigration Courts. Incidentally, it would also provide needed potential legal workers for the U.S. economy.

It would also establish the credibility of the asylum processing program (something now in tatters) at legal ports of entry. That, in turn, would incentivize individuals to use orderly asylum processing rather than being lured by smugglers into attempting dangerous irregular entries. 

A major overlooked fact in the restrictionist babble (disgustingly repeated even by some Administration officials and Dem politicos) about “illegal border crossings” is that the U.S. has had no transparent legal asylum system at ports of entry for years. Our Government’s failure, has empowered smugglers, encouraged irregular entry, and endangered asylum seekers. Amazingly, despite years of bad faith, dishonesty, and insulting “die elsewhere” racist messages, tens of thousands of individuals have waited patiently on the Mexican side of the Southern Border, in horrid and life-threatening conditions, for appointments, hearings, and adjudications that have never happened and that are often biased and unfair on those occasions when they did take place.  

The Biden Administration should also be working in Mexico with NGOs to provide accurate information (NOT “stay home and die” propaganda) about the U.S. Asylum program, the legal documentation requirements, opportunities for representation and counseling, and what will happen after May 23. Given the lack of honesty, transparency, accuracy, and humanity in many “official” USG pronouncements, it’s no wonder desperate folks seek information and guidance elsewhere.

An essential part of the foregoing is to establish officially-maintained prioritized processing lists for ports of entry. As noted in Emily’s article, informal “do it yourself” lists are being maintained by unofficial and unregulated “gatekeepers.” This has been a key reason why the U.S. system lacks credibility and orderliness.

It’s not “rocket science.” 🚀 But, as usual, when it comes to immigration, human rights, and equal justice, the Biden Administration lacks dynamic expert leadership, a positive vision of immigration, and the ability to “pick off the low hanging fruit.”  

As I have pointed out before, in the absence of a plan, the best hope for an orderly transition to a restored legal asylum program might well be NGOs and volunteers who could step in where the Administration is failing! https://immigrationcourtside.com/2022/04/02/%f0%9f%97%bd%e2%9a%96%ef%b8%8f-cdc-announces-end-of-covid-bar-but-only-7-weeks-from-now-compare-what-dhs-should-have-said-with-what-they-did-say-with-51/

🗽🇺🇸Due Process Forever!

PWS

04-06-22

⚖️CHAIR LOFGREN’S “REAL COURTS RULE OF LAW ACT OF 2022,” H.R. 6577, TO GET MARKUP THIS WEEK!

FROM AILA:

From: George Tzamaras <GTzamaras@aila.org>

Sent: Tuesday, April 5, 2022 2:36 PM

To: AILA Board of Governors Mailing List <bog@lists.aila.org>

Subject: [bog] PLEASE SHARE: New AILA Think Immigration video blog post with Jeremy McKinney and Greg Chen regarding immigration court reform (includes sample tweets and posts).

 

Good afternoon everyone,

 

We are really excited that this week the House Judiciary Committee is scheduled to mark up the Real Courts, Rule of Law Act of 2022 – introduced by Rep. Lofgren to establish an independent immigration court system which we’ve been working for steadily for years now. The markup hearing will cover a lot of different bills so we may see the bill come up today, or more likely tomorrow. To watch the hearing, keep an eye on the hearing livestream page: https://judiciary.house.gov/calendar/eventslisting.aspx?EventTypeID=216

 

The AILA Comms Team produced a video in which Jeremy McKinney and Greg Chen talk through the immigration court’s problems and the need for a real solution in order to ensure judicial independence and due process. We have embedded the video as a blog post and would love to have you amplify it to your networks on social media.

 

To make that easier, we’ve created some sample social below for the video blog post. Also, don’t forget to TAKE ACTION yourself by contacting your congressional delegation and urging support for the bill: https://www.aila.org/advo-media/tools/advocacy-action-center#/114

 

Sample tweets:

  • I’ll be watching to see the House Judiciary Committee mark up the Real Courts, Rule of Law Act which would create an independent #immigration court this week. WATCH this video with @MckJeremy and @GregChenAILA for a helpful intro: http://ow.ly/oqap50IB7Cp @AILANational
  • Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH @AILANational’s @MckJeremy and @GregChenAILA explain: http://ow.ly/oqap50IB7Cp
  • Sample Facebook/LinkedIn posts:
  • I’ll be watching to see how the Real Courts, Rule of Law Act introduced by Rep. Lofgren fares as the House Judiciary Committee discusses how to create an independent #immigration court but in the meantime, this video with AILA President-Elect Jeremy McKinney and Greg Chen serves as a helpful intro: http://ow.ly/oqap50IB7Cp
  • Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH AILA’s President-Elect Jeremy McKinney join Greg Chen to explain:

http://ow.ly/oqap50IB7Cp

 

Thank you,

G

 

George Paul Tzamaras

Senior Director, Communications and Outreach

American Immigration Lawyers Association

Suite 800

1331 G Street, NW,

Washington, DC  20005-3142

Office:  202-507-7649

Cell:      240-476-4299

E-mail:  gtzamaras@aila.org

 

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American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

 

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Nice video!

Progress!

Stay tuned!

🇺🇸Due Process Forever!

PWS

04-05-22

⚖️THE GIBSON REPORT — 04-04-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — HEADLINERS: New “Doyle Memo” On PD 🙂 — GOP White Nationalist AGs Seek Extension Of Illegal, Immoral Title 42 Charade🤮🏴‍☠️!

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • PRACTICE ALERTS
  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

PRACTICE ALERTS

 

Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion

ICE: On April 4, 2022, Principal Legal Advisor Kerry E. Doyle issued a memorandum to the OPLA workforce titled Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion (Doyle Memorandum), which will take effect on April 25, 2022. The Doyle Memorandum is consistent with DHS Secretary Alejandro N. Mayorkas’ September 30, 2021 memorandum titled Guidelines for the Enforcement of Civil Immigration Law, which took effect on November 29, 2021. Upon its effective date, the Doyle Memorandum rescinds OPLA’s prior PD guidance.

 

USCIS Extends Flexibility for Responding to Agency Requests

 

EOIR Policy Manual Updated with New Records Request Procedures: The EOIR Policy Manual has been updated to address this at Section 12.2, here and BIA Policy Manual at 13.1, here.

 

USCIS Service Center Expands Credit Card Payment Pilot Program to All Forms

 

NEWS

 

Biden rescinds controversial Title 42 order limiting asylum

The Hill: While crafted by the Trump administration just days into the pandemic, Title 42 has been used roughly 1.7 million times by the Biden administration, a figure that includes repeat crossers. See also Republican states sue to stop Biden admin’s lifting of Title 42 border policy; Migrants hopeful, suspicious at US reopening to asylum; Migrants march from south Mexico as US lifts COVID ban; Democrats fractured on response to end of Title 42.

 

Cash will now expedite your work permit, in new Biden immigration rule

Reuters: The Biden administration on Tuesday released a final rule expanding a program that allows applicants for various employment-related immigration benefits to pay up to $2,500 to speed up the process, in a bid to ease massive backlogs at the agency. See also USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders (USCIS continues to make progress toward a temporary final rule currently named “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants.”).

 

Immigration Orgs Urge Mayorkas To Support Sanctuary Cities

Law360: Immigrant rights, community and legal advocacy organizations (including NIJC) asked Homeland Security Secretary Alejandro Mayorkas on Tuesday to abandon attempts to undermine local policies limiting cooperation with DHS agencies and instead terminate enforcement agreements with cities and counties.

 

Migrants Fleeing Hurricanes And Drought Face New Climate Disasters In ICE Detention

Intercept: The privately run facility where Argueta Anariba was held was one of several new U.S. Immigration and Customs Enforcement facilities in Louisiana. The implications of caging thousands of people in a state that’s notorious for extreme weather crystallized with the intensifying wind.

 

Facing Demand for Labor, U.S. to Provide 35,000 More Seasonal Worker Visas

NYT: The visa program being expanded, known as the H-2B visa program, allows American businesses to hire foreign workers for seasonal nonagricultural jobs like mowing lawns, cleaning hotel rooms, staffing amusement parks and waiting tables. Industries like landscaping, hospitality and tourism are particularly reliant on foreign nationals to meet high demand during the busy summer months.

 

LITIGATION & AGENCY UPDATES

 

Matter Of Wong, 28 I&N Dec. 518 (BIA 2022) on “Conviction”

BIA: A finding of guilt in a proceeding that affords defendants all of the constitutional rights of criminal procedure that are applicable without limitation and that are incorporated against the States under the Fourteenth Amendment is a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act.

 

2nd Circ. Says USCIS Must Revisit Inadmissibility Finding

Law360: The Second Circuit ruled Monday that U.S. Citizenship and Immigration Services failed to weigh the full facts when denying an Afghan national’s application for permanent residence because he fought opposition forces under duress after being abducted by the Taliban.

 

CA3 on Cancellation Remand in Cruz-Garcia V. Garland

Justia: The BIA also did not address Cruz-Garcia’s challenge to the IJ’s alleged failure to permit Lesley to testify, but that may have been because the BIA erroneously concluded that Cruz-Garcia had not challenged the IJ’s discretionary determination and therefore did not “reach . . . the arguments raised on appeal.”… Because the BIA failed to address an exhausted argument that ultimately challenges the IJ’s determination that he was not entitled to cancellation of removal, remand is warranted.

 

CA5 on Credibility & Firm Resettlement

CA5: In his credible-fear  interview,  Muminov  did  not  describe  his  alleged 2016 protest  of  the  confiscation of his passport or the beating that he incurred thereafter… Given these discrepancies, a reasonable factfinder could conclude, as the IJ and BIA did, that Muminov’s testimony about politically motivated attacks “was too inconsistent”… He cites his testimony about extortionate fees that  he  was  forced  to  pay  to  live  in  Moscow  and  the  harassment  and  discrimination that he faced there. This  testimony may  well  support a  restricted-residence  exception, but we cannot say that the IJ and BIA were compelled to conclude that…

 

6th Circ. Tells Mom To Return Kids To Venezuela

Law360: A Venezuelan mom must return her children to South America, the Sixth Circuit ordered in a published but split decision, ruling that an incident of domestic violence she said was committed by the father and witnessed by the children was too minor for the court to refuse a Hague Convention petition for their return.

 

8th Circ. Rejects Christian Somali’s Bid To Fight Deportation

Law360: An Eighth Circuit panel declined Wednesday to review a Somali man’s petition to avoid deportation, saying the immigration judge who looked at the case properly determined that even if the man’s testimony were found credible, he still wouldn’t likely face torture in Somalia due to his Christian beliefs.

 

CA10: Federal appeals court rules trans Honduran woman should have received asylum in U.S.

Washington Blade: “Any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras,” reads the 10th Circuit ruling.

 

Court OKs Deal Tying Immigration Bonds To Ability To Pay

Law360: A California federal judge has approved a settlement between a class of unauthorized immigrants and the federal government that prohibits judges from setting unreasonable bond amounts for those detained without considering their ability to pay.

 

U.S. Must Face Suit Over Trump’s Separation of Migrant Kids

An Arizona federal judge on Friday dismissed the families putative Bivens class action regarding family separation against 15 high-ranking Trump Administration officials but rejected the federal government’s motion to dismiss as to the families’ FTCA claims against the United States.

 

DHS Enforcement Memo Still Partly Barred Amid Appeal

Law360: An Ohio federal judge refused to shelve his earlier ruling blocking the U.S. Department of Homeland Security from following a Biden administration mandate narrowing immigration enforcement priorities when making custody decisions while DHS appeals his order.

 

Honduran Migrant’s Rape Case Against ICE Agent Too Late

Law360: A Connecticut federal judge dismissed a Honduran immigrant’s claims that an Immigration and Customs Enforcement officer raped and blackmailed her with the threat of deportation for seven years, finding that her claims are all time-barred.

 

CDC Provides Public Health Determination and Order on Termination of Title 42

AILA: CDC released an order to terminate its Title 42 public health order on May 23, 2022. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19, provide vaccinations to migrants, and resume use of Title 8.

 

USCIS Announces Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders

AILA: USCIS announced actions to reduce caseloads and processing times. These include setting new internal cycle time goals, creating premium processing availability of Form I-539, Form I-765 and Form I-140 in FY2022, and working toward a temporary final rule for streamlining EAD processes.

 

Concerns about the Immigration Judge and Board Member hiring process

DOJ OIG: In May 2018, eight members of Congress asked the DOJ Office of the Inspector General (OIG) to investigate allegations that after January 2017, offers for Immigration Judge and Board Member positions were withdrawn or delayed for political or ideological reasons. While we were engaged in assessing these allegations, we received additional allegations that other candidates may have been favored in the hiring process because of their connections to the Trump administration, or perceived political affiliation or ideology. The DOJ OIG did not find sufficient evidence based on an assessment of the allegations to warrant opening a full investigation. However, during the course of our assessment, we identified concerns about the Immigration Judge and Board Member hiring process.

 

RESOURCES

 

NIJC RESOURCES

 

GENERAL RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

GENERAL EVENTS

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

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Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

 

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On its face, the “Doyle Memo” on PD looks good. But, as is always the case with ICE, it all depends on how it is interpreted, used, and applied on the “Field Office Level” and before the Immigration Courts.

On Title 42, interestingly, GOP states that were fine with the Trump regime’s racist attacks on the rule of law now are apoplectic about the Biden’s Administration’s long overdue effort to restore law, order, and human rights to the border.

It will also be telling to see how Federal Courts (particularly the 5th Circuit) that happily facilitated the Executive’s scofflaw, racist assaults on the Constitution and immigrants’ rights during the Trump era react to the Biden Administration’s efforts to restore at least some semblance of asylum laws and due process.

Experts like Blaine Bookey, Legal Director of the Center for Gender & Refugee Studies; Eleanor Acer, Director of Refugee Protection, Human Rights First; Lee Gelernt, Deputy Director, ACLU Immigrants’ Rights Project, and many others have pointed out that the “Trump/Miller Title 42 Blockade” was an illegal (not to mention immoral) pretext “from the git go.”

We can only hope that Garland does a better job of defending the termination of Title 42 than he did with the equally illegal and immoral “Remain in Mexico” program. However, having made the bad decision to rely upon and defend Title 42 for the last year, and fecklessly standing by while it was illegally invoked by the Biden Administration over a million times to deny migrants their legal rights, Garland might find some of his best legal arguments foreclosed by his own actions.

It’s also possible that given the unconscionable delay, lack of enthusiasm, and lack of effective planning within the Biden Administration for the termination of Title 42 and for vindicating the rights of immigrants of color in general, some of those in influential positions would not be unhappy if a “Trumpist Federal Court” forced them to keep illegally turning back refugees at our border forever!

🇺🇸Due Process Forever!

PWS

04-05-22

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

 

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

 

 

 

 

 

 

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

Kevin Sieff
Kevin Sieff
Latin America Correspondent
Washington Post

Kevin Sieff reports for WashPost:

. . . .

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

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

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

“I love Ukrainians,” he slurred.

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

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

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

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

. . . .

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

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

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

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

. . . .

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

Read the complete story at the link.

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

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

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

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

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

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

🇺🇸Due Process Forever!

PWS

04-04-22

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

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

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

     MEMO

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

Homeland Security

From: National Immigrant Justice Center, American Immigration Council,

ACLU of Southern California, Southern Poverty Law Center

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

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

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

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

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

  

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

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

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

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

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

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

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

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

       2

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

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

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

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

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

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

    3

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

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

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

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

5 Id.

  4

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

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

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

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

5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

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

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

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

Previous coverage from “Courtside:”

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

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

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

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

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

🇺🇸Due Process Forever!

PWS

04-03-22

🗽⚖️ CDC ANNOUNCES END OF “COVID BAR” — BUT ONLY 7 WEEKS FROM NOW — COMPARE WHAT DHS SHOULD HAVE SAID WITH WHAT THEY DID SAY — WITH 51 DAYS TO GO & COUNTING, CAN ADVOCATES & NGOs SAVE THE BIDEN ADMINISTRATION FROM ITSELF?

The CDC Announcement:

https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/Final-CDC-Order-Prohibiting-Introduction-of-Persons.pdf

What DHS SHOULD have said about reinstitution of our legal asylum system at the border:

“The Department of Homeland Security works to secure and manage our borders while building, maintaining, and improving a fair and orderly immigration system. That includes a fair and timely system for granting asylum or other forms of refuge from persecution or torture to qualified applicants. Insuring legal protection for refugees is a critical part of DHS’s mission of administering and enforcing the laws.

Violence, political upheaval, war, genocide, religious intolerance, racism, food insecurity, poverty, femicide, child abuse, environmental disasters, rampant corruption, and prospects of starvation in several areas around the world are driving unprecedented levels of migration to our Southwest Border. The devastating impact of the COVID-19 pandemic, which involved the temporary suspension of our system for legal immigration, including admission of asylees and other refugees, has only exacerbated these challenges. A number of sources, including human smuggling organizations, peddle misinformation about entering the United States or coming to our borders.

With the restoration of our legal immigration system on the horizon, only two groups of foreign nationals will generally qualify for admission at our borders: first, those in possession of visas or equivalent documents usually issued by U.S. consular officers abroad; and second, those who can establish that they qualify for asylum or other forms of legal protection from return to persecution and/or torture.

Under our laws, asylum can only be granted to those reasonably fearing harm because of their race, religion, nationality, political opinion, or membership in a particular social group. Other foreign nationals facing harm not amounting to “torture” in their home countries will not be eligible for admission under our laws. Those who apply or are apprehended at or near the border and cannot show a “credible fear” of harm because of one of the foregoing grounds will be summarily removed from our country.

In short, if you do not have a valid visa or a bona fide claim for asylum or other legal protection, you should not make the journey to the U.S. border. You will be apprehended and summarily returned to your home country in accordance with our laws.

DHS is implementing a comprehensive strategy to address a potential increase in the number of border encounters. That strategy includes:

  1. Acquiring and deploying many more trained Asylum Officers to legal ports of entry to promptly decide “credible fear” cases for asylum seekers;
  2. Delivering a more efficient, fair, and timely asylum process by allowing Asylum Officers to grant credible, well-documented claims at the border;
  3. Working with NGOs, legal aid groups, and local governments to provide legal counseling and representation to those seeking asylum;
  4. Working with NGOs, religious organizations, and other social services entities in the U.S. to assist in orderly resettlement of those granted asylum or whose cases cannot be timely processed at the border;
  5. Processing and removing those who do not have valid claims; and
  6. Working with the UNHCR, NGOs, and other countries globally to manage migration and address root causes.

With the restoration of a fair and timely asylum and protection processing system at our legal ports of entry, all asylum applicants should apply in an orderly fashion only at those ports. That will be the safest, most efficient way of applying, offer the greatest opportunities for legal representation, and increase the chances of timely, legal admission into the United States for those who are qualified.

Those who attempt to avoid legal processing at ports of entry by unauthorized entry may well find their lives endangered by unscrupulous smugglers. Additionally, those who attempt to avoid the legal process available at ports of entry might subject themselves to detention, additional grounds for removal, bars on future reentry, and criminal prosecution. With the return of full legal immigration and improved asylum processing to ports of entry, DHS will be able to devote more enforcement resources to locating and apprehending those attempting irregular entry into the U.S. DHS will also target human smuggling operations.

There is broad agreement that our immigration system is fundamentally broken. The Biden-Harris Administration continues to call on Congress to pass legislation that holistically addresses the root causes of migration, fixes the immigration system, and strengthens legal pathways.”

Compare the above with what DHS ACTUALLY said:

https://www.dhs.gov/news/2022/03/30/fact-sheet-dhs-preparations-potential-increase-migration

FACT SHEET: DHS Preparations for a Potential Increase in Migration

Release Date: March 30, 2022

The Department of Homeland Security (DHS) works to secure and manage our borders while building a fair and orderly immigration system. The CDC has announced that, on May 23, 2022, its Title 42 public health Order will be terminated. As a result, beginning on May 23, 2022, DHS will no longer process families and single adults for expulsion pursuant to Title 42. Instead, DHS will process them for removal under Title 8. Until May 23, 2022, the CDC’s Title 42 Order remains in place, and DHS will continue to process families and single adults pursuant to the Order.

Under Title 8, those who attempt to enter the United States without authorization, and who are unable to establish a legal basis to remain in the United States (such as a valid asylum claim), are subject to additional long-term consequences beyond removal from the United States, including bars to future immigration benefits.

DHS is implementing a comprehensive strategy to address a potential increase in the number of border encounters.

The strategy includes: 1) Acquiring and deploying resources to address increased volumes; 2) Delivering a more efficient and fair immigration process; 3) Processing and removing those who do not have valid claims; and 4) Working with other countries in the Western Hemisphere to manage migration and address root causes.

Violence, food insecurity, poverty, and lack of economic opportunity in several countries in the Western Hemisphere are driving unprecedented levels of migration to our Southwest Border. The devastating economic impact of the COVID-19 pandemic on the region has only exacerbated these challenges. Human smuggling organizations peddle misinformation that the border is open. DHS is implementing a comprehensive strategy to address a potential increase in the number of border encounters.

There is broad agreement that our immigration system is fundamentally broken. The Biden-Harris Administration continues to call on Congress to pass legislation that holistically addresses the root causes of migration, fixes the immigration system, and strengthens legal pathways.
1. Acquiring and deploying resources to address increased volumes.

Developed an integrated and scalable plan to activate and mobilize resources.
DHS initiated a Southwest Border contingency planning effort last fall. Last month, the Secretary designated a Senior Coordinating Official and established the Southwest Border Coordination Center (SBCC) to coordinate planning, operations, engagement, and interagency support.

Ready to surge personnel and resources to the Southwest Border.
DHS has moved officers, agents, and DHS Volunteer Force personnel to rapidly decompress points along the border and more efficiently process migrants.

Increasing CBP temporary holding capacity to process high volumes of individuals in a humane manner.
CBP has mobilized resources to rapidly stand up, expand, and/or reinforce Central Processing Centers in order to provide more efficient end-to-end processing for migrants encountered at the Southwest Border. Additionally, more ICE staff will be deployed to the border to facilitate processing.

Utilized appropriated resources to improve border processing
In its FY22 appropriations bill, Congress provided an additional $1.45 billion for a potential Southwest Border surge, including $1.06 billion for CBP soft-sided facilities, medical care, transportation, and personnel costs; $239.7 million for ICE for processing capacity, transportation, and personnel costs; and $150 million for FEMA’s Emergency Food and Shelter Program at the Southwest Border. Earlier this week, President Biden submitted to Congress its FY23 Budget, which would fund the hiring of 300 new Border Patrol Agents and 300 new Border Patrol Processing Coordinators.

While the 2022 appropriation exceeded the request and represents a historic funding level for DHS, the appropriation would not be sufficient to fund the potential resource requirements associated with the current increase in migrant flows. DHS will fund operational requirements by prudently executing its appropriations; reprioritizing and reallocating existing funding through reprogrammings and transfers; requesting support from other Federal agencies; and finally, by engaging with Congress on any potential need for supplemental appropriations, as necessary.

Implementing COVID mitigation measures
The health and safety of the DHS workforce, communities, and migrants themselves is a top priority. CBP provides PPE to migrants who cannot be expelled under the CDC’s Title 42 order or are awaiting processing from the moment they are taken into custody, and migrants are required to keep masks on at all times. CBP also works with appropriate agencies that facilitate testing, isolation, and quarantine of migrants.

DHS has also been providing the COVID-19 vaccines to noncitizens in ICE custody since summer 2021. Beginning March 28, 2022, DHS expanded those efforts to cover migrants in CBP custody, so as to further safeguard public health and ensure the safety of border communities, the workforce, and migrants. These efforts will be ramped up over the next two months, to cover the majority of noncitizens taken into CBP custody.

In addition, DHS is putting in place decompression plans to protect against the kind of overcrowding that facilitates the spread of COVID-19.

2. Delivering a more efficient and fair immigration process.

Issued rule to expedite asylum claims.
On March 24, 2022, DHS and the Department of Justice issued a rule to improve and expedite processing of asylum claims made by recently arriving noncitizens, which provides for the expeditious granting of relief to those who have valid claims for asylum and prompt removal of those whose claims are denied. Once implemented at scale in the coming months, the rule will transform how cases are processed at the border. In President Biden’s Fiscal Year 2023 Budget to Congress, he makes good on the promise of this rule by investing $375 million to hire the personnel needed to quickly process asylum claims.

A Dedicated Docket process for more efficient immigration hearings.
In partnership with the Department of Justice, DHS established a new, more efficient process called the Dedicated Docket to conduct speedier and fair immigration proceedings for families who arrive between ports of entry at the Southwest Border. As a result, the length of time it takes for many of these cases to reach a final disposition has decreased from years to months.

Increased efforts to dismantle transnational criminal organizations that exploit vulnerable migrants
U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, U.S. Citizenship and Immigration Services, the U.S. Department of State, and the Federal Bureau of Investigation and Drug Enforcement Administration of the U.S. Department of Justice launched a counter-network targeting operation focused on transnational criminal organizations affiliated with the smuggling of migrants.

This Operation targets criminal networks that profit from a broad range of illicit activities, such as human smuggling, by using targeted enforcement actions against them, including by denying access to travel and freezing bank accounts.

3. Processing and removing those who do not have valid claims.

Continuing to process migrants in accordance with the laws of the United States, including expeditiously removing those who do not have valid claims to remain in the United States.
Individuals who cross the border without legal authorization will be placed into removal proceedings and, if unable to establish a legal basis to remain in the United States, expeditiously removed. Those who attempt to enter the United States without authorization, and without a valid asylum claim, are subject to additional long-term consequences beyond removal from the United States, including bars to future immigration benefits.

Bringing targeted prosecutions of smugglers, repeat offenders, and those who seek to evade law enforcement.
In close coordination with the Department of Justice, DHS will refer border-related criminal activity to DOJ for prosecution where warranted, including that of smugglers, repeat offenders, and migrants who seek to evade U.S. Customs and Border Protection. U.S. Customs and Border Protection also continues to enforce its Repeat Offender initiative to target recidivism. Any single adult apprehended along the Southwest Border a second time, after having previously been apprehended and removed under Title 8, is referred for criminal prosecution. This initiative has improved DHS’s ability to escalate consequences and conserve processing resources.

4. Working with other countries in the Western Hemisphere to manage migration and address root causes.

Working closely with source and transit countries in the region to deter migration.
The Administration is working with source and transit countries in the region to facilitate the quick return of individuals who previously resided in those countries, as well as stem migration at its source. DHS, in coordination with the Department of State, has regular discussions with partner countries in the Hemisphere on migration related matters and continues to engage with foreign governments to improve cooperation with countries that systematically refuse or delay the repatriation of their nationals.

Signed Migration Arrangement with Costa Rica to address irregular migration.
On March 15, 2022, Secretary Mayorkas traveled to Costa Rica where he joined President Alvarado in announcing a bilateral Migration Arrangement, outlining our shared commitment to both manage migrant flows as well as to promote economic growth in the region. DHS and the Department of State are currently engaged with other countries in the region to advance similar objectives.

Continuing close partnership with the Government of Mexico on migration-related issues.
The Biden-Harris Administration continues to maintain a close partnership between with the Government of Mexico to stem irregular migration, creating viable legal pathways, fostering legitimate trade and travel, and combating the shared dangers of transnational crime. In March, Secretary Mayorkas made his fourth official visit to Mexico City where he and President Andrés Manuel López Obrador committed to the promotion of lawful trade and travel and a regional approach to migration management.

 

What if?

As a sometimes law professor, “What if” is a question I can’t avoid!

The DHS “Fact Sheet” reads like an unprepared agency, planning to be overwhelmed by forces allegedly beyond their control, and looking for ways to shift the anticipated political fallout by blaming others: Congress, smugglers, foreign countries, COVID-19, the Trump Administration, and, in a particularly “low blow” the victims themselves — asylum seekers and other desperate migrants.

Let’s keep in mind that legitimate “refugees” have been largely “shut out” of our legal system for the past several years. Thus, many were left with little or no choice but to seek “do it yourself” refugee within our large “extralegal immigration subsystem.” Often they resort to smugglers and put themselves at increased risk after finding our borders closed to those orderly seeking protection under our laws. We have watched it unfold, and largely ignored the unsavory consequences of our own actions.

I’m certainly not the only one to see “planned disaster” for the Biden Administration on the horizon. Check out today’s WashPost lead editorial:

https://www.washingtonpost.com/opinions/2022/04/01/migrant-surge-is-coming-border-biden-is-not-ready/

However, what if, with 51 days to go, advocates and NGOs could “flip the script” on “programmed failure” and make the asylum system at our border function fairly and efficiently, in spite of itself? 

What if the “anticipated narrative” of an out of control border never came to pass? What if the U.S. could actually make the rule of law a reality at the border? What if reopening legal ports of entry for asylum seekers, thereby eliminating the pressure for “do it yourself refuge,” actually helped the Border Patrol concentrate on smugglers and those without any legal claim to remain here?

That might involve getting an “army” of volunteers to the border to:

  • Convince asylum seekers to trust the new system and apply in an orderly fashion only at ports of entry;
  • Work with the DHS to insure that any processing lists are established and controlled by legitimate authorities;
  • Leverage the potential for more rapid asylum grants by Asylum Officers by representing applicants and assisting them in documenting and presenting their claims in formats that will facilitate more AO grants;
  • Represent those improperly denied by the AO before the Immigration Courts and use effective, “practical scholarship,” expert advocacy, and compelling documentation to force due process and fundamental fairness into an Immigration Court system and a 5th Circuit Court of Appeals historically biased against asylum seekers at our borders;
  • Counsel those prima facie unqualified for asylum and those rejected after applying on possible alternatives outside the U.S.;
  • Work with authorities, local communities, and NGOs to provide viable resettlement opportunities for those granted asylum and safe, secure, and non-intrusive temporary living conditions on both sides of the border for those awaiting legal processing;
  • Advocate to the DHS for establishment of robust, realistic, generous, credible refugee programs for Latin America, Haiti, and elsewhere to reduce pressure on the border asylum system. A “viable alternative” to appearing at the border for refugees is what’s glaringly missing from both our past and current approaches.

Can change really come from below and outside the struggling DHS and EOIR systems? Frankly, I don’t know. But, we’re going to find out in the next several months! We can’t change history, but, perhaps, we can rewrite the future!

🇺🇸Due Process Forever!

PWS

04-02-22

😴NQRFPT: After A Year Of “Blowing Off” Recs Of Progressive Experts, Garland’s Dysfunctional Courts Appear Shockingly Unprepared To Handle Influx Of Kids!🆘 — Mike LaSusa Reports for Law360 Quoting Me, Among Others!

NQRFPT = “Not Quite Ready For Prime Time” — Unfortunately, it’s a more than apt descriptor for the Biden Administration’s overall inept and tone-deaf approach to due process and immigrants’ rights in the beyond dysfunctional and unjust “Immigration Courts” under EOIR @ Garalnd’s DOJ.

Mike LaSusa
Mike LaSusa
Legal and Natioanl Security Reporter
Law369
PHOTO: Twitter

Influx Of Solo Kids Poses Challenge For Immigration Courts

By Mike LaSusa

Law360 (March 31, 2022, 2:44 PM EDT) — Unaccompanied minors arriving in increasing numbers at the southern U.S. border are likely to face a tough time finding legal representation and navigating an overwhelmed immigration court system that has no special procedures for handling their cases.

The number of unaccompanied children encountered by U.S. Customs and Border Protection has risen sharply over the past year, to an average of more than 10,000 per month, according to CBP data. Those kids’ cases often end up in immigration court, where they are subject to the exact same treatment as adults, no matter their age.

“Nobody really thought of this when the laws were enacted,” said retired Immigration Judge Paul Wickham Schmidt, now an adjunct professor at Georgetown Law. “Everything dealing with kids is kind of an add-on,” he said, referring to special dockets for minors and other initiatives that aren’t expressly laid out in the law but have been tried in various courts over the years.

About a third of the immigration court cases started since October involve people under 18, and of those people, 40% are 4 or under, according to recent statistics from the U.S. Department of Justice’s Executive Office for Immigration Review, which operates the courts.

It’s unclear how many of those cases involve unaccompanied children and how many involve kids with adult relatives, and it’s hard to make historical comparisons because of changes in how the EOIR has tracked data on kids’ cases over the years.

But kids’ cases are indeed making up an increasing share of immigration court dockets, according to Jennifer Podkul, vice president of policy and advocacy for Kids in Need of Defense, or KIND, one of the main providers of legal services for migrant kids in the U.S.

“The cases are taking a lot longer because the backlog has increased so much,” Podkul said. Amid the crush of cases, attorneys can be hard to find.

. . . .

The immigration courts should consider “getting some real juvenile judges who actually understand asylum law and have real special training, not just a few hours of canned training, to deal with kids,” said Schmidt, the former immigration judge.

. . . .

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Those with Law360 access can read Mike’s complete article at the link.

For what seems to be the millionth time with Garland, it’s not “rocket science.”🚀 He should have brought in Jen Podkul, her “boss,” Wendy Young of KIND, or a similar qualified leader from outside Government, to kick tail, roll some heads, clean out the deadwood, and set up a “Juvenile Division” of the Immigration Court staffed with well-qualified “real” judges, experts in asylum law, SIJ status, U & T visas, PD, and due process for vulnerable populations. 

Such judicial talent is out there. But, that’s the problem with Garland! The judicial and leadership talent remain largely “out there” while lesser qualified individuals continue to botch cases and screw up the justice system on a regular basis! Actions have consequences; so do inactions and failure to act decisively and courageously.

And, of course, Garland should have replaced the BIA with real judges — progressive practical scholars who wouldn’t tolerate some of the garbage inflicted on kids by the current out of control, undisciplined, “enforcement biased,” anti-immigrant EOIR system. 

Instead, Garland employs Miller “restrictionist enforcement guru” Tracy Short as his “Chief Immigration Judge” and another “Miller holdover” David Wetmore as BIA Chair. No immigration expert in America would deem either of these guys capable or qualified to insure due process for kids (or, for that matter anyone else) in Immgration Court. 

Yet, more than a year into the Biden Administration, there they are! It’s almost as if Stephen Miller just moved over to DOJ to join his buddy Gene Hamilton in abusing immigrants in Immigration Court. (Technically, Hamilton is gone, but it would be hard to tell from the way Garland and his equally tone-deaf lieutenants have messed up EOIR. Currently, he and Miller are officers of “America First Legal” a neo-fascist group engaged in “aiming to reinstate Trump-era policies that bar unaccompanied migrant children from entering the United States,” according to Wikipedia.)

Meanwhile, the folks with the expertise to solve problems and get the Immigration Courts back on track, like Jen & Wendy, are giving interviews and trying to fix Garland’s ungodly mess from the outside! What’s wrong with this picture? What’s wrong with this Administration?

We’re about to find out! Big time, as Garland’s broken, due-process denying “court” system continues it’s “death spiral,” ☠️ taking lots of kids and other human lives down with it!

🇺🇸Due Process Forever!

PWS

04-01-22

🤪GARLAND’S ZANY COURTS! — AG Agrees That His Judges Will Comply With Constitution In Bond Cases, But Only In CD CAL!🤯

Yup, it’s a great settlement! But, only for those in the CDCA or who don’t understand how totally screwed up, unfair, directionless, visionless, and out of control Garland’s “Clown Courts” 🤡 are! 

Check out Hernandez v. Garland here:

https://www.aclusocal.org/en/press-releases/court-ice-cant-detain-immigrants-based-poverty

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

So, Garland agrees that “his judges” will comply with the Constitution, but ONLY in the CDCA. In the other 95% of Immigration Courts nationwide, they evidently are free to choose to act in a “normal” arbitrary and capricious unconstitutional manner. Nice!

Of course, by initially setting no bond or more than $10K in any case, DHS can unilaterally invoke the “regulatory clamper” (8 CFR 1003.19(i)(2)) to defeat any release on bond pending appeal. Since the BIA routinely holds bond appeals until the detained merits cases are complete, then dismisses them as “moot,” the Administration retains lots of tools to act unconstitutionally.

Another nice touch!

Does anyone truly understand how completely screwed up and unconstitutional Garland’s “star chambers courts” are? 

This is what “justice” looks like in 21st Century America, in a Dem Administration no less? Gimmie a break?

A better BIA might have imposed Constitutional due process requiring consideration of ability to pay nationwide, thus preempting the need for more Article III Court litigation and inconsistent decisions affecting the fundamental human right of liberty!

A “better BIA” might have properly limited the DHS’s unconstitutional authority to use the “clamper” to block release on bond, rather than reducing Immigration Judges to a “clerical” role. See, e.g., Matter of Joseph (“Joseph I”), 22 I&N Dec. 660, 674 (BIA 1999) (Moscato, Board Member dissenting, joined by Schmidt, Chair, and Heilman, Villageliu, Guendelsberger, Rosenberg, Jones, Board Members).

A better AG might have eliminated the unconstitutional “clamper” that gives ICE counsel unfair leverage in bond cases.

🇺🇸Due Process Forever!

PWS

04-01-22

⚖️GARLAND PROMOTES INSTITUTIONALIZED SLOPPINESS @ EOIR🤮: BIA’s Cancellation Denial Untethered To Record, Ignored Appellate Arguments, Defended By OIL, Rejected By 3rd Cir!

Check out the remand in Cruz-Garcia v. AG, 03-31-22, 3rd Cir., unpublished, here:

Cruz-Garcia – 3rd

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

For all the world, it looks like the BIA just signed off on a “canned language, rote denial” that had little or nothing to do with the actual record and the arguments raised on appeal. Apparently, as long as the bottom line is to “dismiss” the respondent’s appeal, what goes above it is largely irrelevant to the “Deniers’ Club” that Garland employs as “appellate judges.”

In a system already struggling with a largely self-inflicted backlog of 1.7 million cases, unnecessary remands caused by poor BIA performance are NOT a “no harm, no foul” proposition. Moreover, how in good faith can Garland propose to “expedite” asylum cases at the border when many of his trial judges possess neither the expertise nor the temperament to fairly and efficiently decide asylum claims and the Trump holdover appellate body charged with providing guidance, enforcing best practices, and guaranteeing fairness is itself a major part of the problem? That’s what “designed for disaster” is all about!

Wouldn’t it be refreshing to have an AG who made due process, fundamental fairness, correct results, and careful, “practical scholarly” analysis the touchstone of “his courts” and who cared enough about our justice system to appoint a BIA of real, expert judges — “practical scholars, if you will, of which there are plenty outside of EOIR — capable of focusing on and achieving the foregoing values?

Apparently, in his comfy 5th floor office at DOJ where he thinks great thoughts and does little to achieve them, Garland can’t put himself in the unnecessarily frustrating position of actual human beings and their lawyers who are subjected to EOIR’s incompetent nonsense and “judicial malpractice” on a regular basis! He doesn’t even seem capable of relating to the Courts of Appeals Judges who are constantly called upon to correct fundamental mistakes and clear injustices that Garland ignores and his DOJ attorneys mindlessly defend! Perhaps this “blind spot” is because on the DC Circuit, Garland was absolved from the task of reviewing individual petitions for review emanating from the dysfunctional Immigration Courts that he inherited from his White Nationalist predecessors. 

Whatever the reason for his lackadaisical performance, America needs and deserves an AG who takes immigrant justice, racial justice, due process, and equal justice for all seriously!

🇺🇸Due Process Forever!

PWS

03-31-22

⚖️👩🏽‍⚖️👨🏼‍⚖️⚔️🛡LATEST ROUND TABLE AMICUS BRIEF FOCUSES ON GENDER-BASED PSG! — Chavez-Chilel v. A.G., 3rd Cir., Petition For Rehearing

Hon. Susan G. Roy
Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

 

Hon. “Sir Jeffrey” Chase reports:

The attached is the final “as filed” version of our latest brief in Chavez-Chilel v. Garland, in support of the motion for rehearing/rehearing en banc.  This one is very “all in the family,” as Sue Roy is our counsel, Sue and I drafted the brief, and decisions from Miriam Hayward and Charles Honeyman are attached as exhibits.

There is also an amicus brief by law school professors, and joining NJ attorney Ted Murphy as petitioner’s counsel is Paul Hughes, who argued Kisor v. Willkie before the Supreme Court (as well a Nasrallah v. Barr, a Supreme Court victory in which we were amici).

Best, Jeff

Chavez-chilel RT amicus FINAL

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

Thanks to our wonderful colleague Judge Sue Roy for taking the lead on this!

🇺🇸Due Process Forever!

PWS

03-31-22

⚖️BREAKING — BIDEN ADMINISTRATION WILL STOP VIOLATING ASYLUM LAW & HUMAN RIGHTS — 7 Weeks From Now! 🤯 — How Many Will Be Illegally Deported To Death In That Time?

Michelle Hackman
Michelle Hackman
Immigration Reporter
Wall Street Journal

Michelle Hackman reports in the WSJ:

https://www.wsj.com/articles/biden-administration-to-lift-title-42-border-policy-officials-say-11648664142

WASHINGTON—The Biden administration plans to end its use of Title 42, a Trump-era pandemic border policy that allows the government to immediately turn away migrants at the southern border, by the end of May, according to a draft of the order reviewed by The Wall Street Journal and officials familiar with the matter.

. . . .

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

I’ll believe it when it happens! Seven weeks is plenty of time for the Administration to develop another self-generated “crisis” that, in turn, can be used as an excuse to continue violating the law. And, some politicos of both parties are already pushing to keep sending asylum seekers to death with no due process because they think it will prove popular with certain voters. Once you start violating the law and avoiding the consequences it’s hard to stop! 

Since the Administration doesn’t appear to have much of a plan in mind, it will be largely up to pro bono lawyers and human rights/racial justice NGOs to get folks down to the border to represent and advise asylum applicants. That might be the only way to instill some order, discipline, and legality into what otherwise appears to be another “designed to fail” effort by the USG.

In immigration and human rights, competence to run the system in accordance with law remains a largely untapped resource in the private/NGO/academic sector! Using the same “enforcement only” bureaucrats whose “deter, detain, and deport” approach to asylum has failed in the past to produce and maintain a fair, efficient, due process oriented system is likely to be yet another “fool’s errand” with humanity and our nation’s values hanging in the balance.

🇺🇸Due Process Forever!

PWS

03-30-22