🤮☠️⚰️👎🏻HISTORY OF HATE: Misogyny, Vilification, Racist Hate Directed At Asian Women Has Deep Roots in U.S. Law!  — Jessica Pearce Rotondi in History!

 

Anti-Chinese Poster
Anti-Chinese Poster
Public Realm
Skeleton in the Closet
Skeleton in the Closet
Public Realm
Jessica Pearce Rotondi
Jessica Pearce Rotondi
American Freelance Writer & Editor
PHOTO: Facebook

 

Before the Chinese Exclusion Act, This Anti-Immigrant Law Targeted Asian Women
The 1875 Page Act was one of the earliest pieces of federal legislation to restrict immigration to the United States.
Jessica Pearce Rotondi Mar 19, 2021
The Chinese Exclusion Act of 1882 is often seen as the first major law to restrict immigration in the United States. But there is an earlier law that was used to effectively prevent Chinese women from immigrating to the United States: The Page Act of 1875.
Chinese Immigration in America
The first Chinese immigrants began arriving in the United States in the 1850s. Many were fleeing the economic consequences of The Opium Wars (1839-42, 1856-60), when the British fought to keep opium trafficking routes open in defiance of China’s efforts to stop the illegal trade. An ensuing series of floods and droughts drove members of the lower classes to leave their farms and seek new work opportunities abroad.
When gold was discovered in California in 1848, more and more Chinese immigrants traveled to the West Coast to join the Gold Rush. Some worked on American farms or in San Francisco’s growing textile industry. Others were employed as laborers with the Central Pacific and Transcontinental railroads—railroads which would speed up Westward expansion and facilitate
https://www.history.com/news/chinese-immigration-page-act-women?c…21-0329-03292021&om_rid=&~campaign=hist-inside-history-2021-0329 Page 1 of 7

Before the Chinese Exclusion Act, This Anti-Immigrant Law Targeted Asian Women – HISTORY 3/29/21, 11:35 PM
the movement of troops during the Civil War.
Despite their pivotal role in building the infrastructure of the United States, racism directed at Chinese immigrants was a constant from the moment they arrived on American shores.

. . . .

Both European and Asian immigrants came to the United States seeking to improve their economic well being, explains Dr. Melissa May Borja, assistant professor in the Department of American Culture at the University of Michigan. But Chinese immigrants were regarded as a bigger threat.
“They were seen as a racial threat to a pure white America. They were seen as an economic threat to free white labor. They were depicted as a disease threat—a lot of anti-Chinese rhetoric hinged on portraying Chinese people as filthy and disease-ridden. They were also seen as a religious and moral threat as heathens who threatened a Christian America.”

. . . .

Chinese women were perceived as a particular type of threat: A sexual one. “They were stereotyped as promiscuous, as prostitutes,” says Borja.
While there were Chinese women working in the sex industry in the mid-19th century, they were singled out from their white peers: “Chinese women were specifically accused of spreading sexually transmitted diseases. They were scapegoated. That sexualized stereotype stuck,” says Dr. Kevin Nadal, professor at the City University of New York and vice president of the Filipino American National Historical Society.
Did you know? The earliest known Chinese woman to immigrate to America, Afong Moy, arrived in New York from Guangzhou in 1834. She had bound feet and was exhibited as a curiosity across the United States, first by traders Nathaniel and Frederick Carne and later by American promoter and circus founder P. T. Barnum.

. . . .

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

Read the full article at the link.

The ugly history of abuse, vilification, sexualization, and racism directed at Asian American women has deep roots. It’s the history of the “real America” —  essentially a “white’s only” sociopolitical structure engrafted on a national economy and culture built on the backs of black, Asian, Hispanic, and immigrant labor. The history that today’s GOP both doesn’t want you to learn while they generate hate directed at people of color and strive to repeat the mistakes and “reprise” the false racist narratives of the past.

PWS

03-31-21

⚖️🗽THE GIBSON REPORT — March 29, 2021 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

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

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.

 

USCIS Office Closings and Visitor Policy

 

TOP NEWS

 

The migrant ‘surge’ at the U.S. southern border is actually a predictable pattern.

WaPo: We analyzed monthly U.S. Customs and Border Protection data from 2012 through February and found no clear evidence that the overall increase in border crossings in 2021 can be attributed to Biden administration policies. Rather, the current increase fits a pattern of seasonal changes in undocumented immigration combined with a backlog of demand because of 2020s coronavirus border closure. See also Majority of Migrants at the Border Are Being Turned Away, Biden Says; 9 questions about the humanitarian crisis on the border, answered; Photos Reveal The Crowded Conditions Unaccompanied Immigrant Kids Are Held In At The Border.

 

Harris steps into new immigration mission with Central American leader calls this week

WaPo: Vice President Harris this week will place her first telephone calls to Latin American leaders as she steps up efforts to fulfill her new mission of tackling the root causes of the migrant surge to the United States. See also What Kamala Harris Has Said About Immigration Before Leading White House Border Response.

 

Biden administration fires most Homeland Security Advisory Council members

WaPo: Homeland Security Secretary Alejandro Mayorkas fired most members of the department’s independent advisory council on Friday, a purge that included several allies of former president Donald Trump and veteran officials who served under both parties.

 

Judge Dana Marks On How The Biden Administration Can Address Immigration Backlogs

NPR: NPR’s Steve Inskeep talks to Judge Dana Marks of the National Association of Immigration Judges about the massive backlog facing immigration judges.

 

Dem, GOP Lawmakers Suggest Expelling Migrant Children

Law360: Congress members on both sides of the aisle proposed rapidly expelling unaccompanied migrants at the southern border this week as federal agencies scrambled to accommodate ballooning numbers of minors in their care.

 

Rejected By 1 Mexican Port Of Entry, Migrants Are Flown By U.S. To Another

NPR: Some areas on the border in Mexico are refusing to take the migrants back, so U.S. authorities are flying them to where Mexican officials will accept them.

 

9-Year-Old Migrant Girl Dies Trying to Cross Rio Grande Into U.S.

NYT: Austin L. Skero II, the chief patrol agent for the Border Patrol’s Del Rio sector in South Texas, said that his agents had rescued more than 500 migrants attempting to illegally enter the country since the start of the current fiscal year, which began Oct. 1. A total of 82 migrants have died in that period, according to C.B.P. data.

 

Border Patrol holds migrant families for days under a south Texas bridge

LA Times: Up to 600 families were assembled in recent days at the site under the Anzalduas International Bridge in Mission, Texas, sleeping in the dirt, exposed to the elements, without much food or access to medical care, according to several people who said they were released this week by U.S. Customs and Border Protection.

 

Stephen Miller to launch a new legal group to give Biden fits

Politico: The group, which will be known as America First Legal, will help organize Republican attorneys general against perceived executive branch abuses in addition to filing lawsuits of its own, according to six people familiar with the planning.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Form I-589 NTA Policy

USCIS: If DHS previously issued you an NTA that has not been filed and docketed with EOIR, [USCIS] will accept your Form I-589, issue you an NTA, file your NTA with EOIR, send your Form I-589 to the EOIR immigration court where we file your NTA, and notify you by mail. EOIR will adjudicate your Form I-589. The date USCIS receipted your Form I-589 will serve as the filing date for the purpose of the asylum one-year filing deadline. [Note: This site is dated 1/26/21, but it seems that at least some affirmative I-589s with unfiled NTAs have recently begun being forwarded directly to EOIR and docketed.] See also Final Settlement Agreement in Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications.

 

Feds Back Green Card Limits For TPS Holders At High Court

Law360: The Biden administration told the U.S. Supreme Court that immigrants who crossed the border illegally, but are temporarily shielded from deportation, should not be eligible for permanent residence, tracking similar arguments made by the Trump administration.

 

Matter of AL SABSABI, 28 I&N Dec. 269 (BIA 2021)

BIA: (1)   The “offense clause” of the Federal conspiracy statute, 18 U.S.C. § 371 (2012), is divisible and the underlying substantive crime is an element of the offense. (2)   Because the substantive offense underlying the respondent’s Federal conspiracy conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473 (2012)—is a crime involving moral turpitude, his conviction for conspiring to commit this offense is likewise one for a crime involving moral turpitude.

 

CA1 Says BIA Did Not Err in Finding That Asylum Applicant Failed to Prove His Chinese Citizenship

The court held that the BIA and IJ properly found that the petitioner had failed to prove his Chinese citizenship on the basis of a lack of corroborating evidence, and thus found that he could not base his asylum application on a fear of returning to China. (Thile v. Garland, 3/19/21) AILA Doc. No. 21032435

 

CA5 Says Categorical Approach Applies to Texas Conviction for Possession of Controlled Substance in Penalty Group 2-A

Where petitioner had been convicted in Texas of possessing a controlled substance listed in Penalty Group 2-A, the court held that the government had failed to show that Penalty Group 2-A was divisible, and thus that the categorical approach should apply. (Alejos-Perez v. Garland, 3/22/21) AILA Doc. No. 21032436

 

5th Circ. Upholds Asylum Denial Over Missing Paperwork

Law360: The Fifth Circuit on Wednesday denied a Cameroonian asylum seeker’s attempt to revive his case over missing paperwork, finding that his attorney failed to conduct a thorough enough search before attesting that the paperwork was not actually received.

 

CA8 Finds That Petitioner’s 2006 Federal Conviction for Illegal Reentry Under INA §276 Is Not an Aggravated Felony

The court held that because petitioner’s 2003 Missouri marijuana conviction was not a categorical match to the corresponding federal offense in INA §101(a)(43)(B), his 2006 conviction for illegal reentry was not an aggravated felony under INA §101(a)(43)(O). (Lopez-Chavez v. Garland, 3/22/21) AILA Doc. No. 21032438

 

CA8 Says There Is No “Miscarriage of Justice” Exception to Statutory Prohibition on Reopening a Reinstated Removal Order

The court held that there is no “gross miscarriage of justice” exception to the statutory prohibition on reopening a reinstated removal order, and concluded that the immigration court lacked jurisdiction to reopen the petitioner’s 1998 proceeding. (Gutierrez-Gutierrez v. Garland, 3/22/21) AILA Doc. No. 21032437

 

9th Circ. Judges Spar Over Failed Bid To Rehear Asylum Rule

Law360: The full Ninth Circuit refused Wednesday to review a panel order blocking a Trump-era policy that stripped asylum eligibility from migrants who cross the Southern border outside a port of entry, though six judges dissented, declaring they’re not “Platonic Guardians” of public policy.

 

9th Circ. Clarifies ‘Intellectual Disability’ For Asylum Claims

Law360: The Ninth Circuit on Wednesday sided with a Salvadoran asylum-seeker, finding that the immigration court misconstrued the nature of his intellectual disability by applying layman’s reasoning to a medical question.

 

CA10 Holds That INA §237(a)(1)(C)(i) Does Not Require Failure to Maintain Visa Status to Be Fault of Visa Holder

Denying the petition for review, the court held that the plain meaning of INA §237(a)(1)(C)(i) does not require a failure to maintain nonimmigrant status to be the fault of the nonimmigrant or the result of some affirmative action taken by the nonimmigrant. (Awuku-Asare v. Garland, 3/16/21) AILA Doc. No. 21032439

 

District Court Grants Class Certification and Amends Preliminary Injunction in Unaccompanied Children Litigation

USCIS issued a notice following class certification and entry of an amended preliminary injunction in a lawsuit challenging USCIS policy limiting asylum jurisdiction over UAC applicants. (J.O.P. et al., v. DHS, et al., 12/21/20) AILA Doc. No. 20122321

 

Fla. Court Orders ICE To Release Social Distancing Data

Law360: A Florida federal judge on Thursday backed a special master’s call to further review U.S. Immigration and Customs Enforcement’s social distancing measures at three detention centers and ordered the agency to brief the court on how it has cohorted detainees and enforced social distancing.

 

Gillibrand Introduces Bill To Guarantee Access To Counsel For Children During Immigration Removal Proceedings

Gillibrand’s Office: Following the introduction of the FAIR Proceedings Act, Gillibrand also led her Senate colleagues in a letter to U.S. Attorney General Merrick Garland. In the letter, the Senators urge the Department of Justice (DOJ) to review and address the needs of the Immigration Court system to ensure that proceedings are fair, the most vulnerable are protected, and that the independence and authority of immigration judges is fully restored.

 

Dems Eye Yearly 125K Refugee Minimum After Historic Lows

Law360: Democratic members of Congress reintroduced legislation that would bar the White House from setting the annual refugee cap below 125,000, a proposal that comes as current U.S. refugee admissions are set at record-breaking lows.

 

USCIS Extends Flexibility for Responding to Certain Agency Requests

On March 24, 2021, USCIS extended the flexibilities it announced on March 30, 2020, for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and June 30, 2021, inclusive. AILA Doc. No. 20050133

 

DOS Provides Update on Public Charge

DOS announced that it has updated its guidance to consular officers on how to proceed while DOS’s 10/19 IFR and 1/18 FAM guidance are enjoined. Under this guidance, consular officials will apply the public charge standard that had been in effect prior to these changes when adjudicating applications. AILA Doc. No. 20080700

 

EOIR Announces New Privacy Waiver and Records Release Form

EOIR announced the release of Form EOIR-59, Certification and Release of Records, which enables current and former respondents who have or had business before EOIR to request or authorize the disclosure of their information. EOIR will continue to accept Form DOJ-361, Certification of Identity. AILA Doc. No. 21032635

 

Correction to USCIS Notice Designating Venezuela for TPS

USCIS published a correction to its notice designating Venezuela for TPS, which was published at 86 FR 13574 on 3/9/21. USCIS is correcting typographical errors in the Table 1— Mailing Addresses and Table 2— Mailing Addresses sections of the notice. (86 FR 15694, 3/24/21) AILA Doc. No. 21032431

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, March 29, 2021

Sunday, March 28, 2021

Saturday, March 27, 2021

Friday, March 26, 2021

Thursday, March 25, 2021

Wednesday, March 24, 2021

Tuesday, March 23, 2021

Monday, March 22, 2021

Sunday, March 21, 2021

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

Thanks Liz! And don’t forget that Liz and I will be appearing on a panel on the due process disaster in the U.S. Immigration Courts on April 7, 2021, sponsored by the Hispanic National Bar Association (“HNBA”). We’ll be joining NDPA All-Stars Claudia Cubas (CAIR Coalition), Professor Jill Family (Widener Law), and Ramon Guerra (Law Firm of Ramon S. Guerra) on this panel. Don’t miss it!

https://immigrationcourtside.com/2021/03/29/%f0%9f%a7%91%f0%9f%8f%bd%e2%80%8d%e2%9a%96%ef%b8%8f%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8whos-judge-is-it-anyway-the-crisis-of-independence-in-our-immigration-court/

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

03-30-21

🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!

HBNA
HBNA

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

The answer to the question posed is actually simple. As of today, DHS Enforcement and politicos at the DOJ “own” the so called Immigration “Courts” lock, stock, and barrel!

That’s an overt violation of the clear Fifth Amendment requirement that those whose lives and property are at stake be judged by a fair and impartial adjudicator — by definition one who is an expert in asylum law, human rights, and has demonstrated the ability to conduct fair hearings.

That’s also bad news for the Hispanic Community, because for the last four years those wholly owned “courts” have been operating with a clear bias against the civil and human rights of people of color, with Hispanic migrants and asylum seekers being a particular target — one that has adversely affected, even terrorized, Hispanic communities throughout the U.S. Hispanics are also grossly underrepresented among the “Immigration Judiciary” at both the trial and appellate levels, as well as on the Article III Bench — despite there being scores of Hispanic and other lawyers of color out here who would be head and shoulders above many of those currently holding these critical “life or death” judgeships!

The real questions are:

1) What can we do about it, and

2) How can we get Judge Garland and others in the Administration to listen, put an end to “Dred Scottification,” and get started on the task of bringing due process and fundamental fairness to a totally dysfunctional and dangerously biased system?

Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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

PWS

03-29-21

 

🛥🤮🤡CRUZIN’ WITH THE CANCUN COWBOY — Texas Insurrectionist Sen. Bravely Faces Down Unarmed Asylum-Seeking Women & Children From CBP Gunboat! — Man & His Party — Devoid Of Constructive Ideas — Audition For Comedy Documentary, As Real Threats To America From Their “Magamoron” Comrades Multiply & Folks Who, Unlike Cruz, Seek To Contribute To Our Society Are Left In Danger!

Erum Salam
Erum Salam
Producer & Journalist
The Guardian
PHOTO SOURCE: Twitter

https://www.theguardian.com/us-news/2021/mar/27/ted-cruz-us-mexico-border-immigration?CMP=Share_iOSApp_Other

Erum Salam reports for The Guardian: 

The Republican senator Ted Cruz has drawn criticism for taking a trip to America’s southern border as the conservative Texan politician once again became the butt of internet jokes and memes.

In the style of a wildlife documentary, Cruz captured his experience with the help of professional photographers and shared his recent journey to the US-Mexico border Thursday night on social media, where he aimed to shed light on what Republicans have dubbed a crisis.

pastedGraphic.png

Ted Cruz

@tedcruz

Live footage from the banks of the Rio Grande.

#BidenBorderCrisis

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2:15 AM · Mar 26, 2021

20.8K

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Sporting a dark green fishing shirt and matching baseball cap with the Texas flag, Cruz spoke at a press conference where he sought to paint a dramatic picture of his experience: “On the other side of the river we have been listening to and seeing cartel members – human traffickers – right on the other side of the river waving flashlights, yelling and taunting Americans, taunting the border patrol.”

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Despite his claims that the border situation is a direct result of the Biden administration’s immigration policies, residents in the Rio Grande Valley have said no such crisis exists. In fact, the number of border crossings under the Biden administration largely mirror those under the former Trump administration. Cruz was accompanied by 18 other Republican senators including John Cornyn, Susan Collins and Lindsey Graham.

After claiming he ran into heckling cartel members and saw a dead body floating in the Rio Grande, Cruz was derided by many, including the former congressman Beto O’Rourke who said:  “You’re in a border patrol boat armed with machine guns. The only threat you face is unarmed children and families who are seeking asylum (as well as the occasional heckler).”

. . . .

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

Read more at the link about the GOP’s complete farce — while much more courageous individuals, asylum seekers, are forced to risk their lives because the U.S. is incapable of administering our own asylum laws in a fair, responsible, and competent manner. Cruz & co apparently view this as a “photo op.” Actually, it’s a human tragedy for which history will hold Cruz and his racist party largely responsible, even if the voters fail to do so.

The best solution is to hire experts from the private/NGO/academic sectors; build a functioning asylum and refugee system that will process applicants fairly, generously, predictably, and efficiently; reopen legal ports of entry; establish a robust “on site” refugee program for the Northern Triangle; and work with the international community to alleviate the causes of forced migration. Figure out how new arrivals who qualify for legal status can help rebuild our economy moving forward. Develop a humane program for returning those who don’t qualify without endangering their lives, health, and safety.

An absolutely essential part of the solution is a new, “reimagined” EOIR, staffed with real judges who are experts in asylum, human rights, and due process. An EOIR that will “through teamwork and innovation, be the world’s best courts, guaranteeing fairness and due process for all.” Judge Garland, where are you in American justice’s hour of dire need?

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

Imperfect as our current laws may be, they cover all of the foregoing. What we really need to do is follow our own laws with common sense, humanity, and a sense of urgency!

What we don’t need is more inane walls, more border enforcement directed against asylum seekers, and more cruel and illegal schemes to return refugees to back to danger without any due process. And, we certainly don’t need any more photo ops from Cruz and his GOP cronies.

🇺🇸🗽⚖️Due Process Forever!

PWS

03-29-21

🧑🏽‍⚖️👨🏻‍⚖️⚖️BIDEN & WARREN BELIEVE IN A DIVERSE, PROGRESSIVE FEDERAL JUDICIARY — JUDGE GARLAND CONTROLS PERHAPS THE MOST IMPORTANT FEDERAL JUDICIARY NEXT TO THE SUPREMES — So, What’s He Waiting For? — Will He Reverse The Dems’ Maddening Failure To Grasp & Act On The Cosmic Importance & Game Changing Potential Of A Progressive Immigration Court, That Gets Beyond The Often White, Male, Enforcement, “Go Along To Get Along” Stereotypes & Showcases Diverse, Progressive “Practical Scholars,” Many Of Them Women & People Of Color?

Jennifer Bendery
Jennifer Bendery
Journalist
HuffPost
PHOTO: Twitter

https://www.huffpost.com/entry/elizabeth-warren-professional-diversity-federal-judges_n_605cbde5c5b67ad3871d9095o

Jennifer Bendery in HuffPost:

The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.

For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.

“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”

Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.

If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.

At last, the times are catching up with Warren.

President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.

“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”

. . . .

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

Read the complete article at the link.

Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now! 

At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿‍♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay! 

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

Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!

Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.” 

Grim Reaper
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law. 

Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, they  are condemned to endless litigation to vindicate their rights in a system intentionally rigged against them. 

Star Chamber Justice
“Justice”
Star Chamber
Style

Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!  

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!  

The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”

Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!

During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum. 

Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience. 

In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮

Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary. 

Judge Merrick Garland
Judge Merrick B. Garland, U.S. Attorney General
Official White House Photo
Public Realm

Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it! 

PWS

3-28-21

🏴‍☠️ADMINISTRATIONS COME & GO — BUT, INSTITUTIONALIZED RACISM DIRECTED AGAINST BLACK HAITIAN MIGRANTS REMAINS A BIPARTISAN STAPLE OF U.S. IMMIGRATION POLICY!

Haitians
Torch
By Bill Day
Republished by license

FOR IMMEDIATE RELEASE

Media Contact:

Nicole Phillips, Legal Director, Haitiian Bridge Alliance, nmp.law@gmail.com, +1 (510) 715-2855

Tom Ricker, Policy Director, The Quixote Center, tomr.quixote@gmail.com, (301) 922-8909

Biden’s Invisible Wall: New Report Describes the Hardships that Title 42 Expulsions Create for Haitian Migrant Families and Calls on Biden to Stop Expelling Migrants to Haiti

San Diego, California, March 25, 2021 — Today, one year after the “Title 42” policy was enacted, the Haitian Bridge Alliance, Quixote Center and UndocuBlack release the report, The Invisible Wall: Title 42 and its Impacts on Haitian Migrants, and call on the Biden-Harris Administration to immediately revoke Title 42 and end expulsions to Haiti. According to Guerline Jozef, Executive Director of Haitan Bridge Alliance, “Most if not all of the expulsions to Haiti are per the Title 42 policy, which was adopted  under a false pretext of the coronavirus pandemic. Title 42 is Trump’s invisible wall that effectively closed the U.S.-Mexico border to migrants.” “Our Report,” says Ms. Jozef, “presents the voices and hardships of Haitian migrant families who have been abused in immigration custody and then expelled under the Title 42 policy without the opportunity to seek legal counsel or request asylum or other protection.”

On February 1, 2021, the first day of Black History Month, the U.S. government drastically expanded removals and expulsions to Haiti. Rather than dismantle the Trump Administration’s invisible wall, the Biden-Harris Administration doubled down. More Haitians have been removed per the Title 42 policy in the weeks since President Joe Biden took office than during all of Fiscal Year 2020. The Report provides the narratives of Haitian families who were apprehended at the U.S. Mexico border within the last year under the Title 42 policy and were subject to expulsion to Haiti or Mexico.

The Report explains how Haitian migrants are expelled under the Title 42 policy without being informed whether or when they will be expelled, and without the opportunity to seek asylum or other forms of protection.  “Abigale” (name changed), a Haitian woman interviewed for the Report, describes the cruelty of immigration officials during her family’s expulsion, “None of the officers ever confirmed that we were being deported. No one would even say the word deportation. None of them, through this whole process. All the families were crying on the bus, for over an hour. My husband and others kept asking what was going on, if they were deporting us. They would not tell us anything despite our desperation. It was all extremely emotional.”

“The Biden-Harris Administration has continued cruelty against immigrants,” said Patrice Lawrence, Co-director of the UndocuBLack Network. “We hope that this will not be their legacy. It is cruel to use Title 42 as a loophole for deporting immigrants in general and Black migrants in particular. It is a euphemism for removals and deportation of immigrants which the Trump Administration deemed expendable in the wider context of its eugenic agenda of creating a Whiter America and atmosphere of nativism. The invisible wall named Title 42 keeps at bay brown and Black people fleeting war, violence, poverty and disasters under the pretext of protecting Border Protection officers from COVID-19 and to minimize the number of persons in congregate settings, such as immigration detention centers. The Biden-Harris Administration continues to ignore the cry and plight of immigrants that are being forced to board a plane and are taken to the very places they escaped from. The xenophobic language of the previous Administration might be gone, but the practices still remain.”

“There is no sound public health rationale for the Title 42 ban on migrants,” says Tom Ricker, Policy Director with the Quixote Center.  “The idea for the policy came not from public health officials, but from the Trump White House. The entire justification for the Title 42 policy is the claim that the United States lacks the capacity to safely detain people. Yet, the United States is holding people for weeks only to then put them on crowded planes. How do you deny someone asylum who has been placed in detention – with no legal representation at all – based on the argument that there is no capacity to detain them?”

The Report also describes the high security risks that Haitian migrants face when they are expelled to Haiti or Mexico. As one woman who was recently expelled to Haiti under Title 42 describes, “Now the country is in more turmoil so I’m even more afraid to leave [my home]. If these people find us, they would just kill us this time around.”

“Haitian migrants flee violence, instability and persecution in Haiti, then travel a long and treacherous journey to the U.S.-Mexico border seeking safety and security in the United States,” says Nicole Phillips, Legal Director of Haitian Bridge Alliance. “Instead of security, they are abused by immigration officers and – under the Title 42 policy – summarily expelled back to the country they fled without any chance to seek protection. As this Report explains, these expulsions are not only tragic, they are illegal.”

The authors offer nine recommendations. “First,” says Ms. Phillips, “the Title 42 policy must be revoked immediately. It is also critical that asylum processing resumes, while migrants are released to shelter in place with their loved ones in the United States rather than being detained. Incarceration must stop.”

The Full report can be read here.

***********

Same old song! Where’s Vice President Kamala Harris on this one? 

🇺🇸🗽⚖️Due Process Forever! Treat Haitians as persons with constitutional and human rights. End the racist travesties embodied in U.S. immigration policy that fuel racial injustice throughout America!☠️

PWS

3-28-21

⚰️☠️👎🏻🤮ALL-MALE GOP PANEL OF 8TH CIR. GOES “FULL SALEM” ON SALVADORAN WOMAN — “If You Survive Your Ordeal, Woman, You Can’t Possibly Be a Refugee! Come Back And See Us After You’re Dead & Maybe We’ll Believe You,” Is The Wacko Message Delivered By Brain-Dead, Life-Tenured Male Jurists — American “Justice” Takes Yet Another Bizarre, Kafkaesque Turn As Judge Garland Silently Sits & Thinks Great Thoughts Without Taking Any Actions To End The Daily Abuses Against Humanity In His Name By Unqualified “Prosecutor-Owned & Operated Judges” & Ethically Challenged DOJ Attorneys Promoting Nonsense Before Federal Circuit Courts!

CELEBRATING WOMEN’S HISTORY MONTH WITH THE BOYS FROM THE EIGHTH CIRCUIT!

 

Trial by Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Trial By Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

https://ecf.ca8.uscourts.gov/opndir/21/03/202248P.pdf

Guatemala-Pineda v. Garland, 8th Cir., 03-26-21

PANEL: SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.

OPINION BY: Judge Arnold

Because you have to “see it to believe it” that these three guys actually graduated from law school and got promoted to the Federal Judiciary, the opinion is set forth in full here:

United States Court of Appeals For the Eighth Circuit ___________________________

No. 20-2248 ___________________________

Yeemy Guatemala-Pineda

lllllllllllllllllllllPetitioner

v.

Merrick B. Garland, Attorney General of the United States1

lllllllllllllllllllllRespondent ____________

Petition for Review of an Order of the Board of Immigration Appeals ____________

Submitted: February 17, 2021 Filed: March 26, 2021 ____________

Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges. ____________

ARNOLD, Circuit Judge.

After Yeemy Guatemala-Pineda entered the United States unlawfully, she applied for asylum so she wouldn’t have to return to her home country of El Salvador.

1Merrick B. Garland is serving as Attorney General of the United States, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).

She feared that if she returned there gangs would persecute her because of her religious activities. After a winding course of immigration proceedings that began more than ten years ago, the Board of Immigration Appeals ultimately denied her request for asylum. We deny the petition for review since we think substantial evidence supports the BIA’s decision.

Guatemala-Pineda, whom we will call Pineda as her real name is Yeemy Michael Pineda, attempted to enter the United States in 2010 at age 22 but was apprehended by immigration authorities and charged with being inadmissible as an alien without proper documentation. See U.S.C. § 1182(a)(7)(A)(i)(I). She conceded that the charge was true but applied for asylum, which protects, among others, refugees present in the United States who are unable or unwilling to return to their home country because they have a well-founded fear that others will persecute them on account of their religion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Pineda testified before an immigration judge that she was a practicing Christian who had participated in a church project of door-to-door evangelization that specifically targeted gang members. She related that a handful of gang members had at one time “cornered” and “grabbed” her during a church function and tried to recruit her to their gang, explicitly telling her that they did not want to see her working with the church. Though they also threatened to “take [her] by force” and find her wherever she went, they did not otherwise physically harm her.

After that incident Pineda stopped attending church, opting instead to participate in religious services at other people’s homes. During one of these home services, Pineda testified, gang members appeared outside and demanded that the group stop singing. She believed they were the same gang members who had threatened her before; they specifically called her by name and said they were “coming for” her. Two weeks later, at another home gathering, gang members again appeared outside, announced they were armed, and demanded that she come outside

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or “they were going to get” her. The people inside threw themselves on the ground and waited about two hours until the gang members departed.

At that point, Pineda testified, she obtained a job selling clothes in San Salvador, which was about ninety minutes from her home. She explained that gang members did not bother or threaten her while at work, though one time she had to crouch down when she heard gunshots directed toward another person.

The immigration judge concluded that, even though Pineda had not demonstrated past persecution, she did have a well-founded fear of future persecution, and so granted her application for asylum. When the government appealed to the BIA, the BIA remanded the case to the immigration judge to consider, among other things, whether Pineda could reasonably relocate within El Salvador to avoid future persecution. On remand, Pineda testified that, if forced to return to El Salvador, she would return to her mother’s house because she had no other place to go. She noted that her entire family lives in the same city and that she could not relocate to another city as a single Christian woman. She also elaborated on her time working in San Salvador, explaining that she commuted alone and worked three to five days a week for a few months before leaving for the United States. Pineda also testified that, though she did not experience difficulties from gang members in San Salvador or while commuting, thieves did steal her paycheck three or four times and her cell phone twice, often while she was riding on a bus.

Pineda also presented testimony from an expert on Central American gangs. He testified that El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no

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protective family network, making “internal relocation a very, very difficult proposition.”

The immigration judge again granted Pineda’s request for asylum, concluding that she had carried her burden to show that internal relocation was unreasonable, as “[s]he is a young single woman returning to a country the size of Massachusetts where abuse and violence against women is one of the principal human rights problems.” The judge acknowledged that Pineda had worked in San Salvador for three months without interference from gangs but pointed out that during that time she had been robbed of her paycheck or cell phone at least five times and “did not proselytize in the streets.” In sum, there were simply no other parts of the country “that are any better than the area that gave rise to [Pineda’s] original claim.” On appeal, however, the BIA pointed out that Pineda was able to avoid gang persecution while working in San Salvador. It also noted that, even though Pineda was the victim of crimes during her commute, it was unclear whether she could have avoided these and similar crimes by moving to San Salvador instead of commuting from her hometown. The BIA therefore remanded for the immigration judge “to reconsider the overall reasonableness of any relocation by the respondent throughout El Salvador.”

On remand, Pineda’s case was assigned to a different immigration judge. The new judge concluded, after receiving additional arguments from the parties and what he termed “extensive country condition evidence,” that Pineda had failed to shoulder her burden to show that she could not relocate elsewhere in El Salvador since she was able to avoid gang persecution while working in San Salvador. The BIA upheld that determination.

In her petition for review from that holding, Pineda challenges the determination that she failed to show she could not safely relocate to another part of El Salvador. We review both the BIA’s decision and the immigration judge’s decision to the extent the BIA adopted the findings or reasoning of the immigration judge. See

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Degbe v. Sessions, 899 F.3d 651, 655 (8th Cir. 2018). We will uphold the decision so long as substantial evidence supports it. See Cinto-Velasquez v. Lynch, 817 F.3d 602, 607 (8th Cir. 2016). When applying that “extremely deferential” standard, we will not reverse “unless, after having reviewed the record as a whole, we determine that it would not be possible for a reasonable fact-finder to adopt the BIA’s position.” See Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004).

Since Pineda does not contend that she has shown past persecution, she must show she has a well-founded fear of future persecution to prevail. See 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b). But “[a]n applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(2)(ii). Because Pineda has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, she bears the burden to show that relocation would not be reasonable. See id. § 1208.13(b)(3)(i). In these circumstances relocation is presumed to be reasonable. See id. § 1208.13(b)(3)(iii).

We hold that substantial evidence supports the BIA’s determination that Pineda could relocate to another part of El Salvador if forced to return. We believe that a reasonable factfinder could give substantial weight to the lack of gang harassment Pineda suffered while working in San Salvador for a number of months. Even if gangs generally have significant reach throughout the country and are able to locate people like her quickly, as Pineda maintains, the fact that they did nothing to her for months as she worked in San Salvador is hard to overlook. And even though the first immigration judge to preside over Pineda’s proceedings found that internal relocation would not be reasonable, that does not necessarily mean that substantial evidence did not support the second immigration judge’s decision. It might just go to show that the reasonableness of relocation in this case is one on which reasonable people could disagree.

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To bolster her case, Pineda emphasizes that she suffered other serious harm in San Salvador when she had paychecks and cell phones stolen from her. Pineda is right that, to prevail, she need not show that she suffered other serious harm on account of a protected ground, such as religion. See Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1048 n.5 (8th Cir. 2004). But that other harm must rise to “the severity of persecution” for her to carry the day. Id. “Persecution is an extreme concept,” involving things like death or the threat of death, torture, or injury to one’s person or freedom. See De Castro-Gutierrez v. Holder, 713 F.3d 375, 380 (8th Cir. 2013). Pineda did not describe anything that occurred to her during her commutes to and from San Salvador or her employment there that approaches this high standard.

We therefore conclude that substantial evidence supports the BIA’s determination, considering that Pineda worked for months in San Salvador without trouble from gangs. Though we recognize that Pineda’s expert opined that she was at risk, we think the BIA did not unreasonably focus on there being no evidence that she was persecuted during the months she worked in San Salvador. We have upheld a decision on this kind of question based on less, as, for instance, where an asylum seeker had stayed in another part of a country without being harmed for five weeks. See Molina-Cabrera v. Sessions, 905 F.3d 1103, 1106 (8th Cir. 2018).

Though we sympathize with Pineda’s subjective fear of returning alone to a different part of El Salvador, we cannot say that the BIA’s relocation determination is unsupported by substantial evidence. Because we uphold this portion of the BIA’s decision, we do not consider whether substantial evidence supported the BIA’s conclusion that the government of El Salvador was unwilling or unable to control the gangs that Pineda feared.

Petition denied.

______________________________

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

No, it’s not, as Judge Arnold disingenuously claims “something on which reasonable people could disagree.” No reasonable adjudicator qualified in asylum law and due process could reach this ridiculously wrong result!

Naturally, not understanding asylum law (why would that be a requirement for an Article III Judge, just because it’s probably the #1 and certainly most hotly contested topic in Federal Civil Litigation these days), Judge Arnold and his “boys club” out on the Great Plains fail to give this credible respondent “the benefit of the doubt” to which she is entitled under UNHCR guidance.

Indeed, as I used to tell my former BIA colleagues, usually to little avail before launching another dissent, “if reasonable people could differ, the result should be clear — the respondent wins because she gets ‘the benefit of the doubt.’” Sadly, even at a time when the BIA functioned at a much much higher level than it does today, it was the Immigration Judge and immigration enforcement who often in practice got the “benefit of the doubt” from many of my former colleagues, not the asylum applicant.

As my friend Dan Kowalski over at LexisNexis Legal Community summed up: “Proves the point that ‘the only true refugee is a dead refugee.’” Unlike the various BIA Judges and Circuit Judges involved in this deadly travesty, Dan actually understands asylum law, due process, and human values. 

One might fairly ask the question of why “practical scholars” like Dan are on the “outside” and lesser talents are on the Federal Bench at all levels? The answer has much to do with why there is an “institutionalized racism crisis” in today’s American justice system. “Trial By Ordeal,” really isn’t that great a “look” for 21st Century American Justice! (Any more than is institutionalized racism and “The New Jim Crow”).

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Conveniently, this “gang of three” CJs showed little real understanding of 8 C.F.R. 208.13 as it existed at the time of the BIA’s second decision, which states:

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

Just on the information regurgitated in their opinion, Ms. Guatemala-Pineda showed by expert witness testimony and by her own credible testimony and experiences that there is no “reasonably available relocation alternative” in El Salvador. There clearly is “ongoing civil strife” in El Salvador. And, anyone with even minimal knowledge of the country would know that (to put it charitably) the “administrative, economic, and judicial infrastructures” are somewhere in the zone between dysfunctional to non-existent. She also credibly pointed out why it would not be reasonable under the circumstances to require her to leave her mother’s home and move to San Salvador. 

Forcing someone to commute to a job 90 minutes away, for 3-5 days per week work, in what is perhaps the most dangerous city in the country, during which she already suffered “three or four paycheck robberies and a cell phone robbery” in about three months — that’s a total of five robberies” in a relatively short span — is by no means a “reasonable internal relocation alternative” based on all relevant factors! 

Additionally, that she felt unable to proselytize in accordance with her religious beliefs in San Salvador also indicates that relocation there is unreasonable. Freedom to carry out reasonable religious commitments without fear of harm is a fundamental human right.

Very interesting to compare how GOP Circuit Judges treated very clear interference with Ms. Guatemala-Pineda’s ability to fulfill her religious beliefs in this case with how many GOP judges in the U.S. swoon over every minor interference with right wing religious beliefs — even those grounded in obvious bigotry — in the U.S. Here, by contrast, the GOP Circuit Judges fobbed off the interference with Ms. Guatemala-Pineda’s evangelical activities — at one point she felt unable to worship publicly at her church — as of no particular concern.

Not to mention that Ms. Guatemala-Pineda’s expert confirmed that:

El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no protective family network, making “internal relocation a very, very difficult proposition.”

In plain terms, it’s only a matter of time before Ms. Guatemala-Pineda is persecuted, seriously harmed, or killed if returned to El Salvador. But, her life, as a woman of color, is obviously of little concern to the “gang of three.”

Let’s look at it another her way. Suppose we were tell Judges Smith, Arnold, and Staus that they had to relocate in a way that meant every third or fourth paycheck would be stolen and that they would be robbed of their cellphone every three months, with no recourse to a functioning police system. (Note that these dudes would be much better able to absorb such losses of income and expensive property than Ms. Guatemala-Pineda.) Or, that we were going to relocate their cushy ivory tower jobs to a place where they would be required to commute 90 minutes by public transportation every day. Or, that they might occasionally have to get down behind the bench to avoid rampant gunfire. Or, that they no longer could worship at their church of choice or openly engage in religious activities in their communities, but must limit themselves to “in-home worship” — not just during the pandemic, but permanently. Or, they had to live in a place where “GOP-Judiciacide” was at the highest level in the world and the police offered little or no protection, indeed were often involved themselves in abuse and killings of judges or turned a blind eye to the perpetrators. 

Think our “tone-deaf group of guys in robes” would take a different view of “reasonable” if they put themselves in Ms. Guatemala-Pineda’s place and it were happening to them? You betcha!

A few other things to note about this gross miscarriage of justice:

  • Two panel members were appointed by Bush II, one by Trump;
  • Ms. Guatemala-Pineda originally won her case before the Immigration Judge, who after hearing all the evidence and carefully considering relocation found that Ms. Pineda has shown that there was no “reasonably available relocation alternative” in El Salvador;
  • The BIA baselessly remanded the case on ICE’s appeal to a new IJ to get the “preferred result” — a denial of relief and potential death sentence for a woman of color (See, e.g., Jeff “Gonzo Apocalypto” Sessions & Matter of A-B-);
  • In a functioning system staffed by asylum experts, this case could easily have been granted at the Asylum Office rather than kicking around the dysfunctional EOIR system for a decade — two merits hearings before the IJ — two appeals to the BIA — and Circuit Court review — all to REACH A CLEARLY INCORRECT AND UNJUST RESULT THAT NO TRUE ASYLUM EXPERT I KNOW WOULD AGREE WITH!
  • And, we wonder why EOIR has more than doubled the number of IJs yet still almost tripled their uncontrolled backlog to a mind-boggling 1.3 million cases! Ten years to turn an easy asylum grant into a denial (yet other cases are rushed through to denial on an assembly line without any real deli]beration or analysis) might give us a hint of why the system is totally dysfunctional and completely unfair (not to mention patently unconstitutional)!
    • Since EOIR is known for its incompetent record keeping, I’m willing to bet that there are thousands, perhaps hundreds of thousands, of additional “lost in space” files, warehoused somewhere that are simply “off docket” and unaccounted for.

Cases like this aren’t “academic exercises” — the judicial attitude that “screams off the pages” of this gross miscarriage of justice. They have real life, potentially deadly consequences for real humans beings, the most vulnerable of human beings, like Ms. Guatemala-Pineda. She has the same right to live as do the Circuit Judges, the BIA Judges, and the second Immigration Judge who got her case wrong! 

After a decade, this monstrosity is the best our “justice system” can offer? Gimme a break! I think I could choose any three students over at the CALS Asylum Clinic at Georgetown Law who would run circles around the cavalier analysis of these three supposedly “senior jurists” in this case! Cases like this basically are indictments of our Article III system, not to mention the ongoing mockery of justice at EOIR.

The anti-asylum, anti-immigrant bias, incompetent adjudication, and systemic mis-management at EOIR are of monumental proportions! The gross inconsistencies, lack of overall immigration, human rights, sensitivity to racial justice, and “practical due process” expertise at the appellate level of the U.S. Courts and particularly at the Supremes is very disturbing and threatens the very existence and legitimacy of our legal system.

Judge Garland has the power to start fixing this, today! He must vacate all the bogus Trump-era anti-immigrant precedents; toss the entire BIA, and replace them with real judges who possess the required subject matter expertise and overriding commitment to due process and fundamental fairness; establish merit-selection criteria for Immigration Judges honoring experience representing asylum applicants in court, immigration knowledge, human rights expertise, commitment to due process for individuals under law, sensitivity to racial justice, and demonstrated practical problem solving experience.

Then, apply those criteria to new Immigration Judge selections as well as to retention decisions for all current Immigration Judges. And, for Pete’s sake, “can” the incompetent bureaucracy and get some real professionals in there who can run an independent court system — starting with a functioning nationwide e-filing system and some competent judicial training as well as assisting IJs in managing their own dockets rather than constantly interfering and trying to “micromanage” from Falls Church and the 5th Floor of the DOJ (a process known as “Aimless Docket Reshuffling,” honed by the Trump kakistocracy @ DOJ).

When you’re done, Judge Garland, you’ll have: 1) many fewer bad decisions heading off the the Courts of Appeals; 2) a functioning Immigration Judiciary of experts who can help keep order and provide helpful expert guidance to the rest of the now out of control system; and 3) a great source of “battle trained and proven” well-qualified, progressive judicial talent who can change the trajectory of the now often moribund (yeah, even some of the younger Trump appointees are basically “brain dead,” so the term fits) and dilatory Article III Judiciary and who are also available to fill other high-level policy positions with competence, common sense, and humanity.

You’d also go down in history as a judge who got out of the ivory tower and actually solved pressing problems, implemented our Constitution, and built a better, fairer court system that made a difference in human lives and the future of our nation. Perhaps, even something like “thorough teamwork and innovation, built the world’s best courts guaranteeing fairness and due process for all.” That’s quite a legacy for future generations.

I can only hope Judge Garland finally pays attention to what’s happening across the river in Falls Church and takes immediate action to end the deadly and debilitating clown show 🤡🦹🏿‍♂️ @ EOIR. Otherwise, I fear he will find himself buried in immigration litigation and his tenure mired in the muck of responsibility for grotesque racial injustice and “running” the worst, most incompetent, unfair, and blatantly unconstitutional “court” system in America! 

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Hey Hey, Ho Ho, The Deadly EOIR Clown Show ☠️🤡 Has Got to Go!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Hey, maybe next year, we could all celebrate Women’s History Month with some decisions incorporating serious scholarship by progressive women judges that actually recognize, honor, and institutionalize relief from the unfair struggles faced by refugee women and people of color.

PWS

03-27-21

🏴‍☠️CLOSING THE BORDER TO LEGAL ASYLUM SEEKERS IS A VIOLATION OF BOTH DOMESTIC & INTERNATIONAL LAW — It’s Neither Something To Tout (Biden Administration) Nor A Solution (GOP) (Except, Perhaps, In The “Hitlerian” Sense) — Our Inability To Solve A Humanitarian Situation By Acting Lawfully, Sensibly, & Humanely Is A Sign Of Gross National Weakness Spurred By Unwillingness To See The Human Tragedies We Are Promoting! — And The Lousy, Misleading, & Tone-Deaf Reporting By The Some Of The “Mainstream Media” Is Making It Worse! — Leon Krauze & Suzanne Gamboa With Simple Truths About Human Migration That Neither Pols Nor Nativists Want You To Hear! — PLUS BONUS COVERAGE: Friday Mini-Essay: “Degrading Ourselves As A Nation Won’t Stop Human Migration”

Leon Krauze
Leon Krauze
Journalist, Author, Educator

https://www.washingtonpost.com/opinions/2021/03/24/border-crisis-migrants-media-biden/

Leon Krauze in the WashPost tells us what’s really happening at the border. WARNING: It has little to do with the myths and false narratives being peddled by the GOP, the Administration, and the media.

The current emergency at the border has found the U. S. media at its most solipsistic. Coverage seems more focused on whether the emergency should be called “a crisis” (it should) and what the political fallout for the Biden administration will be. With few exceptions — like the remarkable work of MSNBC’s Jacob Soboroff or Politico’s Sabrina Rodriguez — many news outlets seem utterly uninterested in the stories of the migrants themselves.

This is wrong because it fails to provide one crucial piece of the puzzle: the very concrete context of human suffering.

. . . .

This by no means excuses the stories of anguish and confinement that have emerged over the last few weeks from within the facilities set up by the Biden administration to deal with the number of young migrants crossing the border, nor does it absolve the president himself from delivering on his promise of a humane immigration system, diametrically opposed to Trump’s cruel policies, designed in collaboration with unapologetic racist xenophobes like Stephen Miller.

The Biden administration can and should do better. But the current debate cannot ignore the very concrete despair facing thousands of immigrant families who, under the direct threat of violence or abuse, chose to push their young children to the United States, in search of safety.

If the alternative was famine, gang violence, kidnapping, rape or sexual slavery, wouldn’t you bet it all on the journey north? If more people understood this, the political debate and the coverage surrounding the crisis would be much more empathetic and we would get closer at delivering concrete, humane solutions.

Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:

Suzanne Gamboa
Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013
Place: Washington, DC
Credit: Maria Patricia Leiva/OAS
Creative Commons License

https://www.nbcnews.com/news/latino/americas-immigration-impasse-self-inflicted-doesnt-rcna485

America’s immigration impasse — an endless loop across different administrations — is largely self-inflicted, because Congress has repeatedly failed to acknowledge one simple thing: Immigration happens.

Accordingly, immigration laws must be continually adjusted, reformed and revised, experts say.

“People will always want to come to the U.S., and the U.S. will always need people,” said former Commerce Secretary Carlos Gutierrez, who was a top immigration adviser to President George W. Bush.

Until there is a system that allows enough legal immigration to meet the economy’s needs, there will be illegal immigration, Gutierrez said.

“That’s just part of how our economy is set up. It’s part of demographics,” Gutierrez said. “Our birthrate is not high enough to be able to fill the needs of our economy.”

The coronavirus pandemic reinforced the importance of immigrant labor to the American economy, including labor by the undocumented.

It opened many Americans’ eyes to the precariousness of the U.S. food supply, which depends on immigrant and undocumented farmworkers and meat plant workers, as well as to other immigrants’ roles as essential workers, such as home health care aides, nurses and paramedics.

All of those people and many other immigrants, including young immigrants — often called “Dreamers” based on never-passed proposals in Congress called the DREAM Act — will play a key role in helping the economy recover from its pandemic bust.

But immigration requires periodic calibration, and the economics and the changing patterns are lost in the politics.

“People are going to move — as they are all around the world — where they think they can find places to better feed their children. That’s the bottom line, and that’s the history of migration to the United States,” said Luis Fraga, director of the Institute for Latino Studies at the University of Notre Dame.

. . . .

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

Everyone should read the rest of the stories at the above link. 

Degrading Ourselves As A Nation Won’t Stop Human Migration

By Judge (Ret) Paul Wickham Schmidt

“Courtside” Exclusive
March 26, 2021 

Notwithstanding the endlessly disingenuous and self-centered alarmist rhetoric coming from all directions on the border mess, often mindlessly regurgitated by the press (not just Fox News), the real “crisis” involves the human lives at stake and the unnecessary human misery we are causing by failing to establish, professionally staff, and fairly and competently operate the legal refugee and particularly asylum systems required by law. This “due process crisis” actually has devastating and debilitating practical effects, starting with the dysfunctional immigration, refugee, and asylum system and the beyond dysfunctional Immigration Courts.

Heck, we don’t even pretend to comply with Constitutionally-required due process of law for asylum seekers who present themselves to us seeking life-saving refuge. Most of those who show up at legally-established border ports are told that the border is “closed” and that there is no way for them to apply. OK, so they attempt to cross between ports and immediately present themselves to the Border Patrol. But, they also are told there is no way to apply and are orbited back to some of the most dangerous countries in the world without any process whatsoever, let alone due process of law. Who are we kidding with all our dishonest pontificating about “the rule of law?”

It’s a strange way to implement the statutory command that any foreign national “irrespective of . . . status, may apply for asylum,” along with a constitutional guarantee that “No person shall . . . be deprived of life, liberty, or property without due process of law.” Gee, you don’t even need one of those fancy Ivy League law degrees to understand that language. You just have to be able to read, comprehend, and act.

What you do have to do to get where we are today is to view asylum seekers and other migrants (predominantly people of color) as less than human — “non-persons” in a constitutional sense. It’s what some of us call “Dred Scottification of the other” and it has accelerated over the past four years — not just in immigration.

The whole idea of a “court system” being run by the Executive who also is the chief of enforcement is beyond constitutionally preposterous. It’s a “negative tribute” to the Supremes and other Article III life-tenured judges who have grown so distant from their own humanity and immigration stories as to become willfully blind to the ongoing farce that constitutes “justice” and “due process of law” for asylum seekers and other immigrants in the U.S.

Today’s nearly non-existent “asylum system” is a deadly and illegal “catch 22,” with the Supremes sitting in their marble palace refusing to do the primary task that justifies their continued existence: enforce the Constitution against Government misbehavior and in favor of the “little guys” and the “vulnerable.” No thanks, not up to the job! 

The real tragedy is that there are plenty of folks out here with the knowledge, integrity, courage, and ability to establish a legal system that would actually comply with out laws, our Constitution, and further offer the hope of constructively addressing some problems before refugees arrive at our borders. But, they remain “benched,” even by the Biden Team. So the “good guys”are going to keep attacking the corrupt and broken system in court and at the polls for as long as it takes to get some course correction — years, decades, centuries — ask most African Americans how long it takes to achieve the true justice that America promises to all, but historically has only delivered to some. 

In the long run, a fair system would undoubtedly accept many more legal refugees and asylum seekers. That’s what happens in refugee situations — it’s the core of what we call “forced migration” — when you sign on to international conventions intended to prevent the “next holocaust,” and you fairly and humanely apply the rules meant to protect refugees and those who face torture. And, as they have in the past, the overwhelming number of refugees and asylees, like the overwhelming majority of immigrants (essentially all of us, except Native Americans) will adapt, fit in, and contribute to the health, wealth, and future of our nation. They will change, but so will we — ultimately for the better!

Sure, America wouldn’t be as white, “Christian” (to the extent that adherence to a nominal Christian denomination, rather than actually performing Christ’s extremely difficult, self-sacrificing, risky, compassionate mission, defines Christianity), and nominally heterosexual as it was when White Nationalist myths and whitewashed history ruled the roost. But, it would be a better nation — one that actually has a chance of prospering, realizing the full potential of all its residents, and leading the world in the 21st century. A nation that could devote more human, natural, and monetary resources to building and exporting greatness, rather than to an endless stream of cruel, inhuman, stupid, and wasteful enforcement and deterrence gimmicks.

Bottom line, folks are going to come to America, as they have throughout history. Some will stay, some won’t. But, come they will, unless and until those like Trump and the GOP create such a mess that our own people start fleeing to foreign shores. Immigration, regardless of status, is a sign of strength. Xenophobia a sign of fatal weakness.

Our real choice isn’t whether we want to “close” borders, bar refugees, and abuse children as the Cottons, Cruzes, Millers, and Hawleys advocate. It’s whether we create a robust, orderly, rational legal system to screen, regulate, and distribute the inevitable flow or whether, as we have for the past decades, we force millions to reside and work underground — part of an “extralegal” or “black market” system that pols of both parties and those who profit from that underground system have created.

Sprawling mismanaged enforcement bureaucracies, dysfunctional “courts,” armies of publicly-paid lawyers defending the indefensible, for-profit civil prisons, big agriculture, hospitality giants, loads of upwardly mobile professionals who need child care to pursue careers, communities that live off of marketing ethnic culture, meat packing conglomerates, architects and construction firms who are “building America,” even news media fixated on hyping the problem rather than fixing it (see, e.g., yesterday’s Biden press conference), the list of those who profit from a talented, hard working, reliable, loyal, yet politically and socially disenfranchised, workforce is endless.

Even the GOP’s “Cotton-Cruz crowd” benefits from having an imaginary enemy to rant and rail and gin up hate against — safe in the knowledge that the tanking of our economy, upheaval of society, and possible threat to their privilege that would result from realizing their disingenuous call to boot the entire undocumented population will never happen. Their kids and grandkids can continue to reap the privilege that comes from exploiting an essential, yet politically neutered, workforce. It’s really more about institutionalizing racism to maintain economic and political power over the eventual non-white majority that drives their bogus and ugly narratives.

We can degrade ourselves as a nation, but it won’t stop human migration!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! It’s a vision based on a written promise, not a “pipe dream!”

PWS

03-26-21

ROTTEN TOMATO 🍅🤮 THURSDAY:  9th, 5th, 8th Circuits Reject BIA’s Flawed Analyses!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Courtesy of Dan Kowalski @ LexisNexis Immigration Community:

  1. 9th Cir. Says BIA Screwed Up PSG Analysis 

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-asylum-el-salvador-social-group-acevedo-granados-v-garland

CA9 on Asylum, El Salvador, Social Group: Acevedo Granados v. Garland

Acevedo Granados v. Garland

“Petitioner Wilber Agustin Acevedo Granados (“Acevedo”), a native of El Salvador, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) affirming an order of removal and the denial by the Immigration Judge (“IJ”) of Acevedo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Acevedo’s petition is based on his fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability. The BIA rejected Acevedo’s claims on the ground that the proposed group definition was not cognizable. The BIA held that Acevedo’s proposed social group was not sufficiently particular, finding that the terms “intellectual disability” and “erratic behavior” rendered the proposed group “amorphous, overbroad, diffuse,[and]subjective.” The BIA further determined that the group was not a “meaningful social unit, distinct from the larger population of mentally ill individuals” in El Salvador. We conclude that the agency misunderstood Acevedo’s proposed social group, and thus grant the petition for review with respect to the claims for asylum and withholding of removal. The BIA and IJ treated the term “intellectual disability” as if it were applied by a layperson. Instead, that term as used in Acevedo’s application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, we remand to the agency for fact-finding on an open record to determine if the group is cognizable.”

[Hats off to Prof. Evangeline Abriel and her Certified Law Students Keuren A. Parra Moreno (argued) and Jared Renteria (argued)!]

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2) 8th Cir. — BIA Goofs On “Aggravated Felony” Analysis

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca8-on-aggravated-felony-lopez-chavez-v-garland

CA8 on Aggravated Felony: h

Lopez-Chavez v. Garland

“In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Lopez-Chavez’s administrative appeal the following year. The question now before the court is whether Lopez-Chavez’s 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez-Chavez statutorily ineligible for cancellation of removal. We hold that it does not. … Because Lopez-Chavez’s 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. § 1101(a)(43)(B), the 2006 conviction for illegal reentry under § 1326 does not qualify as an aggravated felony under § 1101(a)(43)(O). Accordingly, Lopez-Chavez is not statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b. We grant the petition for review, vacate the BIA’s order, and remand for proceedings consistent with this opinion.”

[Hats off to Andrew K. Nietor!]

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3) 5th Cir. — BIA Blew “Categorical Approach”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-categorical-approach-alejos-perez-v-garland

CA5 on Categorical Approach: Alejos-Perez v. Garland

Alejos-Perez v. Garland

“[T]o decide whether his 2018 conviction renders him removable, we need to determine whether we can parse MMB-Fubinaca from those other drugs; we decide that by determining whether Penalty Group 2-A is divisible. The government says it’s divisible, Alejos-Perez says not. … Because the government has not shown that the modified categorical approach is called for, we apply the categorical approach. … Because Penalty Group 2-A is not a categorical match, we must identify the appropriate result. … Once it’s clear that Penalty Group 2-A is not a categorical match to its federal counterpart, AlejosPerez “must also show a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of the crime” under federal law.  We are unable to resolve that issue, because the BIA didn’t address it, and we can “only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.” … We thus remand for consideration of whether Alejos-Perez has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute.”

[Hats off to Manoj Govindaiah and Maria Osornio of Raices Texas!]

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

Significantly, the 5th Circuit’s rejection of the BIA’s analysis was written by very conservative Circuit Judge Jerry Smith, a Reagan appointee. Judge Smith wrote the majority opinion upholding the legally questionable injunction against President Obama’s “DAPA Program” — something many scholars believe to have been a entirely legitimate exercise of prosecutorial discretion. (The case later was lamely affirmed w/o opinion by an evenly divided Supremes.)

Even conservative Federal Judges not known for sympathy to immigrants and their legal rights appear to have grown weary of the BIA’s consistently sloppy attempts to rule against foreign nationals, regardless of the merits. This is the second rejection by the normally reliably pro-Government 5th Circuit in the last several weeks!

Ironically, one (former) Federal Judge who appears not bothered by the BIA’s defective jurisprudence is the current Attorney General, Judge Garland. He’d better get himself a “tomato resistant”🍅 raincoat to wear at work. This is just the beginning. His reputation and credibility will diminish every day that he fails to replace the BIA with competent jurists who will give migrants the fair and impartial treatment that our Constitution demands, but the DOJ’s “captive court” constantly fails to deliver! 

And, leaving aside the legal ineptitude, there can be no excuse for the stunning level of dysfunction and incompetence in how one of the nation’s largest so-called “court” systems is administered by EOIR under DOJ. No tribunal in America issues more potential “death sentences” with less due process! Not exactly what Mies Van Der Rohe had in mind when he famously said “the less is more.” 

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

Poor “Belly-Up Eyore.” He was forlornly, and apparently vainly, hoping to be “put out to pasture” after Judge Garland took over the helm at DOJ. Such high expectations!

But, he is already exhausted again by all the continuing “calls to duty on Courtside” after just 22 days of Judge Garland’s “where’s Falls Church” approach to the ongoing EOIR disaster/travesty! Judge, here’s the key; just think like it were your children or grandchildren, actual human beings, being orbited into the abyss without much attention to the law, our Constitution, common sense, or human decency! Maybe starting each day with a briefing on each Article III case that was wrongly decided in your name by the BIA and a live reading of each outrageous media story about disorder in your Immigration Courts would help raise your consciousness? Maybe you should speak with a few of the “customers” of your “courts” that put public service last. Men, women, children, and their lawyers are being abused out there every day by EOIR and you are legally and morally responsible.

You can’t lead the fight for racial justice in America while running a bogus court system that denies and mocks it on a daily basis!

Judge Merrick Garland
Hon. Merrick B. Garland
Attorney General of The United States & Eyore’s Boss, Official White House Photo
Public Realm

🇺🇸👍🏼🗽Due Process Forever!

PWS

03-24-21

❄️MARCH SNOWSTORM — IT’S NOT ALL ABOUT MADNESS! — Hitting His “Newfound Freedom” In Full Stride, Retired U.S. Immigration Judge Tom “Frosty the Snowman” Snow ☃️ Brings The Reality Of Immigration Court Home To Students & Community @ W&M Law & Other Schools In Widely Acclaimed Lecture Series! — “‘Judge Snow really did a great job of explaining things so clearly,’ said Professor Jennifer Bickham Mendez, Professor of Sociology at William & Mary.”

https://wmimmigrationclinicblog.wordpress.com/2021/03/11/retired-immigration-judge-speaks-to-students-and-community-members/

Arlington Judges
Hon. Thomas “Frosty the Snowman” Snow, flanked by Hon. John Milo “JB” Bryant (on right, in the funny looking dark suit) and by Judge Rodger B. “Marine” Harris and me (on left) departing for my last “Thursday Judges’ Lunch” on the day of my retirement, June 30, 2016.

Here’s what the W&M Clinic Website had to say:

Retired Immigration Judge Speaks to Students and Community Members

11MAR 2021

On March 9th, Retired Immigration Judge Thomas Snow spoke to a group of over fifty community members and students about the immigration court system. His presentation focused on practical tips and information regarding immigration court proceedings, what puts someone at risk of removal from the United States, and information about immigration detention.

Judge Snow’s remarks put into context many issues that have been across the headlines, including what happens when someone is in immigration detention, access to counsel, and criminal charges or convictions that put someone at risk of removal. He discussed a wide range of reasons why individuals with different immigration statuses may be put in deportation proceedings, ranging from green card holders who stay out of the country too long to asylum seekers fleeing violence in their home countries. Attendees were able to hear firsthand the importance of immigrants showing up to court, and the importance of having an attorney.

Judge Snow also discussed the role of immigration judges. He viewed his role as someone who applies the law as it is written, not as he hopes or wants it to be. He told stories about cases where he found immigrants to be sympathetic, but how the law would not protect them from removal because of how it is currently written.

Community members posed several questions to the retired judge, ranging from advice for professors serving as expert witnesses to thoughts on policy. Perhaps most important to the community members in attendance, the Judge discussed how letters from community members can be helpful to an immigrant’s case. “I only spend a few hours with someone in their individual hearing,” the Judge said. “It helps to hear from someone who really knows the person.”

Attendees where effusive with their praise for the presentation. “Judge Snow really did a great a job of explaining things so clearly,” said Professor Jennifer Bickham Mendez, Professor of Sociology at William & Mary. “It was an incredibly valuable session.”

“We are so grateful to Judge Snow for sharing his expertise and practical information with our students and community, and for being such an engaging speaker,” said Professor Stacy Kern-Scheerer, Director of the Immigration Clinic. “His presentation brought together so many organizations and individuals in the community who work with and support immigrants, and now we are all better equipped and more informed.”

The William & Mary Law School Immigration Clinic plans to host more events in the future to educate the Hampton Roads community on issues related to immigration law and policy. Please contact us to discuss presentations to your group or organization, and check out our Clinic Events page to learn about other upcoming presentations.

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

This is just the first of many performances! “Frosty” ☃️ has already “played” the Law Schools at GW, W&L, George Mason, and of course his alma mater UVA! What a great start to “the next phase” of an already-distinguished career! 

After four years of obfuscation, myths, lies, blame shifting, and misdirection from EOIR “management,” folks are hungry for truth, transparency, and humanity. Judge Snow certainly embodies those three characteristics, and he can can “deliver” in an entertaining and engaging manner that “connects” with audiences eager for knowledge.

Sitting Immigration Judges who actually hear the cases were muzzled by the DOJ. Eventually, they weren’t even allowed to participate as speakers at CLE and other educational and training events. Or, if they were allowed to participate, their remarks were censored and heavily edited by “handlers” in Falls Church to ensure compliance with the “party line.”

Naturally, withholding vital information about what really happens in court is a key way of building dysfunction throughout the system and stymieing informed and productive dialogue that might actually solve problems. It’s also a way in which the true scope of the ongoing disaster and demoralization at EOIR has been kept “under wraps.” While the real “victims” of this inexcusably and intentionally broken system are the migrants and their long-suffering attorneys, many serving pro bono or low bono, this dysfunction has also adversely affected judges, staff, interpreters, and ICE counsel.

Of course, my friend is sort of a “ringer.” He taught as an Adjunct Professor at UVA in the field of international criminal law before joining our bench in Arlington in 2005. And, “behind the scenes,” he introduced the “professor sweater look” to our chambers. 

Next spring, after COVID is lifted, I suspect that if he hasn’t been “inked” to an academic contact or a “TV judge” show, “Frosty” might be found doing the “Florida Law School Circuit” and taking in some Nats spring training.⚾️ In the meantime, to quote a long-departed WFT coach, “Frosty” remains “cheap and available” to speak to your class, organization, or event! He also does weddings, funerals, and bah mitzvahs. (All future bookings, of course, through his “exclusive agent” —  here at “Courtside”).

Thanks for your continuing contributions to truth, justice, and the American way, my friend!🦸‍♂️

🇺🇸🗽⚖️Due Process Forever!  

 

PWS

03-05-21

☠️⚰️DEATH BY BUREAUCRACY: A System Based On Myths, Deadly Policies, Toxic, Often Incompetent, Leadership, & Right Wing Political Pandering Is Much Worse Than It Should Be!🤮

https://www.theguardian.com/us-news/2021/mar/23/holtville-crash-migrant-deaths-carolina-ramirez-perez?CMP=Share_iOSApp_Other

Vivian Ho
Vivian Ho
Journalist
The Guardian
PHOTO: Wikipedia

Vivian Ho in The Guardian:

. . . .

The number of people seeking to enter the US has risen in recent months. Joe Biden has kept in place a restrictive Trump-era public health order that barred entry to migrants arriving at the border without prior authorization, essentially ensuring that no new asylum claims have been processed at points of entry for more than a year. But the pandemic, cartels and extreme climate events have created conditions so desperate that many migrants are willing to take grave risks.

“Our border policy is set to create really dangerous situations for people to deter people from migrating,” said Erika Pinheiro, the litigation and policy director at the immigrant legal aid organization Al Otro Lado. “But it doesn’t deter migration, it just leads to more deaths, whether it’s an overheated tractor trailer or an SUV crash.”

. . . .

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

Read the complete article at the above link.

What if rather than recycling and mindlessly doubling down on proven to fail “enforcement only” policies (that also happen to be expensive), we ran an honest legal system that fairly, timely, and orderly granted refuge to those who qualify under correct, generous interpretations of protection laws and dealt in a fair and humane manner with those who don’t qualify?

I’m not saying we don’t need more comprehensive immigration reform. In particular, we need the legalization program, a much larger and more rational legal immigration system, and an independent, Article I Immigration Court, staffed by real, expert judges, for starters. 

But, in the meantime, since the GOP has shown no interest whatsoever in reasonable legislative changes, we could do a much, much better job of administering the current laws in an efficient, reasonable, and humane way that would further the national interest, rather than undermining it. 

It won’t happen, however, without bringing in a better team from outside the existing bureaucracy. The longer the Biden Administration waits to replace the dysfunctional bureaucracy with experts who can solve problems and rationalize this system, the more difficult the task becomes.

For example, there are only a handful of folks in the current bureaucracy who understand the problems and the potential solutions as well as Erika Pinheiro. As long as folks like Erika are on the “outside” fighting to block misguided policies and get the attention of those in charge, our border and immigration policies generally will remain a mess as they been for decades before launching into “free fall” under the malicious incompetence of the past four years!

Erika Pinheiro
Erika Pinheiro, Litigation & Policy Director, Al Otro Lado, speaks at TEDSalon: Border Stories, September 10, 2019 at the TED World Theater, New York, NY Photo: Ryan Lash / TED

It’s possible to view today’s announcement that Vice President Kamala Harris has been put in charge of the Biden Administration’s “border strategy” as a bright spot. But, unfortunately, not necessarily. 

Vice President Elect Kamala Harris
Vice President Kamala Harris
Official Senate Photo
Public Realm

Talk about a “strategic alliance” with sending countries like El Salvador, Guatemala, Honduras, even Mexico, all with exceptionally poor human rights records and huge official corruption problems, sounds like it could be more “Trump Lite,” inhumane and ultimately ineffective enforcement, rather than an innovative, enlightened humanitarian response. 

In other words, Harris and Biden could well repeat, in some manner, the Trump “policy” of trying to insure that asylum seekers die in their home countries, die on the way, or get held in cages somewhere south of the border outside the “normal interest zone” of the American media and grandstanding US politicos. Disturbingly, there was no initial recognition that “wooden cliches” like “enforcing the law” actually means recognizing the legal right of individuals to leave their countries and seek asylum elsewhere, as well as a fair, humane, timely, and competent system for processing asylum claims that respects human dignity. 

We don’t meet any of those criteria right now (nor do any of the “partner countries” listed above). Worse yet, the folks who understand and have ideas on how we might get to where we need to be are consigned to the “outside” — trying to correct errors through litigation and the media — rather than being actively engaged in solving problems. Not a good approach for an Administration that claims to believe, as I do, that good government can and should serve the public interest by relying on experts and the “best and brightest” to solve problems.

So, anyone in the NDFPA who has connections to the Harris camp had better use them in attempting to insert some truth and enlightened thinking into what is typically a grim, tone deaf, and ineffective USG response. Otherwise, we’re likely to see a variation of “same old, same old,” which is why we continue to fail to deal with a pressing, recurring human issue in a legal, humane, informed, and courageous way. I/O/W, “business as usual” in a bankrupt system, just with a different “spin.”

⚖️🗽🇺🇸Due Process Forever!

PWS

03-24-21

⚖️THE GIBSON REPORT — 03-22-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Georgetown Law Journal Makes History, Of The Best Kind! — My Invitation To Current Georgetown Law Students To Get Involved!

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

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021. (It is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.

 

USCIS Office Closings and Visitor Policy

 

TOP NEWS

 

Mayorkas says ‘the border is closed,’ defends Biden’s immigration strategy

WaPo: Mayorkas, who appeared on almost all of the major political shows Sunday morning, sought to push a consistent message as the Biden administration is being pressed about conditions in overcrowded detention centers for unaccompanied immigrant children. See also Images of Confusion, Then Anguish: Migrant Families Deported by Surprise; ‘The crisis is in Washington’: Overwhelmed border officials urge D.C. to act; Senators see dire conditions in packed border stations, as officials consider flying migrants north.

 

Key facts about U.S. immigration policies and Biden’s proposed changes

Pew: To better understand the existing U.S. immigration system, we analyzed the most recent data available on federal immigration programs. This includes admission categories for green card recipients and the types of temporary employment visas available to immigrant workers. We also examined temporary permissions granted to some immigrants to live and work in the country through the Deferred Action for Childhood Arrivals and Temporary Protected Status programs.

 

Immigrant Detention Numbers Fall Under Biden, But Border Book-Ins Rise

TRAC: As of the end of President Biden’s first full month in office, the number of individuals arrested by ICE and booked into civil immigrant detention fell sharply from 5,119 ICE book-in arrests during January 2021 to just 1,970 during February 2021. According to the latest ICE figures, this was a drop of 62 percent just in a single month.

 

Young Migrants Held By Border Patrol Far Longer Than Allowed, Document Shows

NPR: The U.S. government had 4,276 unaccompanied migrant children in custody as of Sunday, according to a Department of Homeland Security document obtained by NPR. The children are spending an average of 117 hours in detention facilities, far longer than the 72 hours allowed by law.

 

Biden administration limits what Border Patrol can share with media about migrant surge at border

NBC: Restrictions on what border agents can share with the media were passed down verbally, say officials. Some have released videos of the border surge anyway. See also How Border Patrol Manipulates Media.

 

Durbin: ‘I think I’m close’ to getting Senate votes needed to advance DREAM Act

CNN: Senate Majority Whip Dick Durbin said Sunday that he thinks he is “close” to securing the Republican votes needed to overcome a Senate filibuster to advance a key immigration measure that would provide a pathway to citizenship for undocumented immigrants who were brought to the United States as children.

 

The new top editor of Georgetown’s flagship law journal is ‘undocumented and unafraid’

WaPo: Lee, 26, is believed to be the first openly undocumented student elected editor in chief of the flagship journal at a top U.S. law school.

 

Advocating for asylum-seeking children is traumatic, new research finds

WaPo: These health conditions stem from pressures to meet the needs of vulnerable child migrants targeted by restrictive immigration policies.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Inadmissibility on Public Charge Grounds Final Rule: Litigation

USCIS: USCIS stopped applying the Public Charge Final Rule to all pending applications and petitions on March 9, 2021. USCIS removed content related to the vacated 2019 Public Charge Final Rule from the affected USCIS forms and has posted updated versions of affected forms. See also Withdrawal of USCIS Proposed Rule on Affidavit of Support Requirements.

 

Citizenship Paths For ‘Dreamers,’ Farmworkers Pass House (Headed to Senate)

Law360: The House on Thursday approved two major immigration proposals that would provide a path to lawful status and eventual citizenship for several million “Dreamers” brought to the country as children and farmworkers working without authorization in American agriculture.

 

CA1 Remands Asylum Claim of Cuban Petitioner Who Claimed He Was Targeted for His Anti-Castro Political Beliefs

The court vacated and remanded the BIA’s decision affirming the IJ’s adverse credibility determination, finding that alleged discrepancies between the petitioner’s interview account and his hearing account failed to support the adverse credibility finding. (Cuesta-Rojas v. Garland, 3/15/21) AILA Doc. No. 21031737

 

CA1 Finds BIA Erred in Failing to Assess Whether Conditions for Members of Democratic Party in Albania Have Deteriorated Since 2006

Where the petitioner cited two post-2006 events as evidence of changed country conditions, the court held that the BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious, and reversed the BIA’s denial of his motion to reopen. (Lucaj v. Wilkinson, 3/10/21) AILA Doc. No. 21031732

 

1st Circ. Rejects ICE Detainees’ COVID-19 Bail Requests

Law360: The First Circuit on Wednesday refused to disturb a Massachusetts federal court’s decision denying bail to several immigration detainees convicted of violent crimes, finding that it was reasonable to decide the detainees still belonged behind bars in the midst of the COVID-19 pandemic.

 

CA6 Says BIA Did Not Abuse Its Discretion in Denying Motion to Reopen Where NTA Was Not in Petitioner’s Native Language

Where the Guatemalan petitioner’s Notice to Appear (NTA) was delivered in English, the court rejected her argument that the NTA violated her due process rights because it did not detail in her native language the consequences of failing to attend her proceeding. (Lopez v. Garland, 3/12/21) AILA Doc. No. 21031733

 

7th Circ. Denies Texas’ Bid To Revive Public Charge Rule

Law360: The Seventh Circuit on Monday squashed an attempt by 14 states led by Texas to revive the Trump administration’s public charge policy, which penalizes immigrants for using certain public benefits, after the Biden administration decided not to defend it.

 

CA8 Says Petitioner Seeking Cancellation Was Required Only to Show That State Offense Was Broader Than Generic Federal Offense

The court held that the categorical approach does not require a petitioner seeking cancellation of removal to show that there is a realistic probability the state prosecutes people for the conduct that makes the state offense broader than the federal offense. (Gonzalez v. Wilkinson, 3/9/21) AILA Doc. No. 21031738

 

CA8 Concludes That Petitioner’s Conviction for Second-Degree Felony Assault in Minnesota Was a Particularly Serious Crime

The court held that the BIA did not err in determining that the petitioner’s conviction for second-degree felony assault in Minnesota was a particularly serious crime barring statutory withholding of removal and Convention Against Torture (CAT) relief. (Jama v. Wilkinson, 3/11/21) AILA Doc. No. 21031739

 

CA9 Remands CAT Claim of Honduran Petitioner Based on Evidentiary Issue Related to DOS Country Report

The court remanded petitioner’s Convention Against Torture (CAT) claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, DOS’s Country Report, yet the BIA’s decision did not take it into account. (Aguilar-Osorio v. Garland, 3/15/21) AILA Doc. No. 21031744

 

CA9 Holds That Petitioner Failed to Show Changed Country Conditions in Mexico Since His 2003 Removal Order

The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen after determining that the petitioner had failed to present evidence demonstrating that country conditions in Mexico had changed since his 2003 removal order. (Rodriguez v. Garland, 3/15/21) AILA Doc. No. 21031741

 

CA9 Finds Proposed Social Group of “Salvadoran Women Who Refuse to Be Girlfriends of MS Gang Members” Is Not Cognizable

The court held that substantial evidence supported the BIA’s determination that the Salvadoran petitioner had failed to establish past harm rising to the level of persecution, and concluded that her proposed social groups were not cognizable. (Villegas Sanchez v. Garland, 3/11/21) AILA Doc. No. 21031740

 

CA10 Finds That Matter of G-G-S- Was Not Arbitrary or Capricious and Is Entitled to Chevron Deference

The court held that Matter of G-G-S- was not arbitrary or capricious, and that BIA applied the correct legal standard in determining that petitioner’s convictions were for particularly serious crimes rendering him ineligible for withholding of removal. (Birhanu v. Wilkinson, 3/9/21) AILA Doc. No. 21031745

 

ICE Ordered To Transport NY Detainees To Get Vaccines

Law360: A federal judge on Thursday ordered U.S. Immigration and Customs Enforcement to facilitate vaccinations of immigrants detained at the agency’s Buffalo Service Processing Center in upstate New York.

 

Nonprofits Sue To End Trump-Era Immigration Deal With Ariz.

Law360: Three nonprofit organizations have sued Arizona’s attorney general in federal court seeking the cancellation of an agreement requiring the state’s input in federal immigration policies, saying the Trump administration official who made the arrangement lacked the authority to do so.

 

Safe Horizon and ASISTA File Lawsuit Against USCIS and DHS

ASISTA: Safe Horizon and ASISTA File Lawsuit Against USCIS and DHS, Seeking Information on Policy Change Making it More Difficult for Victims of Serious Crime to Obtain Relief Under the U-Visa Program.

 

DHS and HHS Sign Memorandum of Agreement Regarding Consultation and Information Sharing in UAC Matters

On March 11, 2021, HHS ORR and ICE and CBP signed a Memorandum of Agreement (MOA) regarding consultation and information sharing in matters relating to unaccompanied children. The April 13, 2018, MOA among the agencies dealing with UAC matters has been terminated. AILA Doc. No. 21031235

 

USCIS Shifts Policy On Minors With Alleged ‘Gang Affiliations’

Law360: U.S. Citizenship and Immigration Services will no longer rule out petitions for special status from mistreated youth based on state courts’ failure to assess whether they have ties to gangs, a policy change stemming from a class settlement last year.

 

EOIR Rescinds Policy Memorandum on Case Processing at the BIA

EOIR issued a policy memo (PM 21-16) rescinding and cancelling PM 20-01, Case Processing at the Board of Immigration Appeals. Upon this rescission, the BIA returns to the case management system established by regulation that was effective on 9/25/02 to manage the Board’s caseload. AILA Doc. No. 21031748

 

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

Advance copy of USCIS and EOIR interim final rule further delaying until 12/31/21 the effective date of the final rule “Security Bars and Processing” (85 FR 84160) which had been scheduled to become effective on 3/22/21. Public comment is also sought on whether the rule should be revised or revoked. AILA Doc. No. 21031930

 

USCIS Extends Effective Date of Temporary Final Rule on Interpreters at Asylum Interviews

Advance copy of USCIS final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was originally scheduled to expire on 3/22/21, for 180 days. The final rule will be published in the Federal Register on 3/22/21. AILA Doc. No. 21031932

 

CBP Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico

CBP issued a notification of the continuation of temporary travel restrictions limiting travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border through 4/21/21 due to COVID-19. (86 FR 14813, 3/19/21) AILA Doc. No. 21031934

 

USCIS Notice Extending and Redesignating Syria for TPS

USCIS notice extending the designation of Syria for TPS for 18 months, from 3/31/21 through 9/30/22, and redesignating Syria for TPS for 18 months, effective 3/31/21 through 9/30/22. (86 FR 14946, 3/19/21) AILA Doc. No. 21012930

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, March 22, 2021

Sunday, March 21, 2021

Saturday, March 20, 2021

Friday, March 19, 2021

Thursday, March 18, 2021

Wednesday, March 17, 2021

Tuesday, March 16, 2021

Monday, March 15, 2021

 

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Check out item #7 under “Top News,” the story from the WashPost of Agnes Lee, the new Editor-in-Chief of the Georgetown Law Journal. In addition to being a brilliant and accomplished student, she happens to be an undocumented resident of the U.S. Congrats to Agnes, the Law Journal, and the entire Georgetown Law community!

⚖️Shout Out  for Georgetown Law Students:

Of course, never missing an opportunity to “self-promote,” I heartily encourage current Georgetown Law students who wish to learn and engage in active dialogue about immigration, social justice, and racial justice in America today, as well as to pick up pointers on how to actually practice law, to register for my “compressed semester, 2-credit course Immigration Law & Policy” to be given this June (in person, and virtual options).

Thanks to the great group of students, it’s always a lively, engaged, and diverse group researching, presenting, and discussing perhaps the most important (and misunderstood) current topic for America’s and the word’s future — one on which, sad to say, the myths, false narratives and misinformation are rampant, spreading even as I write this.

While I provide an outstanding “practice oriented” text, the class topics, abundant study questions, a challenging but very “doable” final exam, along with the inevitable anecdotes and “war stories” from my nearly 50-year career, the students actually control the substance though their own research on current and historical events and sharing of personal experiences with the immigration system (everybody has some, whether they realize it or not). It’s also a chance to “network and bond” with a group of wonderful colleagues who can “be there for you” throughout your careers.

Indeed, I hope to put together a panel of “young superstars”🌟 of the New Due Process Army,🌟 including former students/and or court interns, who can share their career experiences on “why they chose to make a difference in human lives and how they have accomplished it.” Additionally, one of the best “up and coming” minds in the business, my friend Professor Cori Alonso Yoder, currently a Visiting Professor at Georgetown Law, has offered to meet with the class to share some of her knowledge and real life experiences with “Life-saving 101.” So, it should be a vibrant an exciting month. Don’t miss it!

Also, despite the seriousness of the topic, we always have some fun doing it!

Also, remember, NDPA superstar🌟 Liz Gibson, of “The Gibson Report,” is one of my former Georgetown Law students, a CALS Asylum Clinic veteran, a former Arlington Immigration Court intern, a former Judicial Law Clerk at the NY Immigration Court, and an alum of the prestigious Immigrant Justice Corps! In a relatively short time, Liz has used her skills, knowledge, and training to make a lifetime’s worth of  “real life positive impact” on the lives and futures of our fellow humans!

🇺🇸⚖️🗽👍🏼Due Process Forever!

PWS

03-23-21

😎🗽⚖️👍🏼EXCITING ANNOUNCEMENT FROM “COURTSIDE” — Introducing NDPA Superstar & Now Co-Editor Sophia I. Barba!

 

I am delighted to announce that Sophia Isabel Barba has joined Courtside as Co-Editor. In addition to the many achievements described in her bio below, Sophia comes from a family with a lifetime commitment to due process and equal justice under law for migrants. Her father Francisco Barba is an immigration attorney and the principal of the Law Offices of Francisco J. Barba, San Jose, CA. I first met a Sophia when she invited me to be the inaugural speaker at the Tulane Immigration Law Society which she founded.

Here’s Sophia’s bio:

Sophia Barba is a newly minted law graduate native to the Bay Area in California. She attended a small liberal arts college in Portland, Reed College, where she majored in Anthropology and authored a thesis examining the intersection of racial dynamics in the creation of immigration policy in the United States. After graduating from Reed, Sophia spent time working for the Portland Bureau of Transportation, where she helped develop strategies to make access to public services more accessible and inclusive to immigrant and low-income communities. After her time in Portland, Sophia attended Tulane University Law School. 


At Tulane, Sophia worked with a bevy of different immigration-related firms and organizations including Catholic Charities, Center for Gender and Refugee Studies, and others. At the advent of a developing immigration law program at Tulane, Sophia founded the Tulane Immigration Law Society, which sought to provide a platform for students and lawyers alike to connect. Sophia graduated from Tulane Law in 2020, after which point she clerked for the Santa Clara County District Attorney’s Office. She recently passed the California Bar Exam and hopes to use her license to support the immigrant’s rights both as an attorney, and as part of the Immigration Courtside family!

Please join me in welcoming Sophia to Courtside!

🇺🇸🗽⚖️😎👍🏼Due Process Forever!

PWS

03-22-21

🗽🙏🏼CLINIC’S ANNA GALLAGHER WITH LENTEN REFLECTION — Despite The “Open Border” Blather, Our Border Remains Closed, The Rule Of Law Suspended, Refugees Are Denied Their Legal Right To Apply For Asylum, & The Cruelty & Human Suffering Occurs South Of The Border Where It Is “Out Of Sight, Out Of Mind!”

Anna Marie Gallagher, Esquire
Anna Marie Gallagher, Esquire
Executive Director
CLINIC
PHOTO: CLINIC website
I wake every morning to follow news of our sisters and brothers, thinking especially of the children, who have set out from places like El Salvador, Guatemala, Honduras, Venezuela, Cuba, Nicaragua and Haiti–even as far as Cameroon and the Democratic Republic of the Congo–to seek protection at our doorstep. My heart aches for them and I pray for their safety.

Today’s readings remind us of our obligation, as followers of Christ, to speak the truth and follow the light. The truth is that people are suffering, both young and old, and desperately seeking safety and welcome in our country. Yet U.S. authorities and policies are often hostile to receiving them. Their arrival at our doors is deemed a “crisis.” As followers of Christ, we must and we will stand up, act bravely and generously, to speak the truth and welcome them.

The real crisis is not at the border, but within the families forced to make the difficult decision to leave, and in the hearts of those who refuse to follow Jesus’ light.  We, as Christians, must walk in the path of light as Jesus instructs, and do the right thing.  We must make room at our table and remember that we all belong to each other. We must take Jesus’ words to heart and remember to love the mother, the father and the child at the border as if they were our own.

This is not a crisis for us, although it certainly is for the men, women, and children who are fleeing. For us it is an opportunity to act out our faith precisely as Jesus taught.

As these sojourners leave their homes in search of safety, they may repeat a prayer similar to this: “Even though I walk in the dark valley I fear no evil; for you are at my side.” The rhythm of the words and their meaning must comfort them, knowing that God is their companion. What happens when they arrive here is up to us. We could look to God and ask what He would do, but we already know the answer.

Anna Gallagher is Executive Director of the Catholic Legal Immigration Network, Inc. (CLINIC).

 

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Unfortunately, too many folks promote a bogus picture of what’s at stake at our border. The “alternatives” they trumpet are basically increasing family separation and suffering in Mexico or somewhere else as pointed out in this Politico article by Jack Herrera:

The result is a new form of family separation — but instead of happening at the hands of federal agents in American government facilities, it’s taking place, family by family, in camps like the one Janiana lives in. The fact that minors won’t be expelled like everyone else has rapidly spread by word of mouth across the length of the border. And while many families choose to stick together, the pressure to separate weighs heaviest on the most vulnerable — families who fear death, whether from persecutors who have followed them to the border, or from extreme hunger.

For Janiana, the possibility of being sent back to Honduras reads as a death sentence. She shows me the scars from her torture at the hands of a powerful gang back home that her family got on the wrong side of. Fearing further reprisals, Janiana fled with her sister’s children, a teenage nephew and teenage niece as well as the niece’s several-month-old son. The children haven’t been reconnected with their mother yet, who successfully entered the U.S. to begin the process of claiming asylum in 2019, before the pandemic. Staying in Mexico, Janiana says, was never an adequate long-term solution and increasingly feels intolerable. She says the family already tried to make a new life in the southern state of Oaxaca, but danger pursued them there, where her nephew was murdered.

Today, Janiana says her only hope is that the U.S. will begin to accept asylum seekers again, especially as the country gets a better hold over the pandemic. At the moment, she says with resignation, “all we can do is wait.” Though there is one painful exception on her mind: If she were somehow able send the baby across alone, he might be allowed to stay.

“It breaks my heart to even think about it,” she says.

https://apple.news/A6sIRr9CpTwSl9_0bmN7rJA

Here’s an idea!

Why not get the trained Refugee Officers, Asylum Officers, Immigration Judges, ORR child services officers, and pro bono lawyers in place to comply with our legal obligations in a robust, timely, fair, and efficient manner?

Why not put experts, like Wendy Young of Kids in Needs of Defense, who understand how our system should work in charge of the welfare of the children? Why not put someone who understands the practical and legal needs at the border, like former Immigration Judge Ilyce Shugall, in charge of the Immigration Court response? Why not put someone like retired Judge Paul Grussendorf, who has also been an Asylum Officer and a UNHCR representative, in charge of the Asylum Office response? Why not put retired Assistant Chief Immigration Judge Robert Weisel, who worked with the UNHCR after retirement, in charge of coordinating the response with NGOs and the private sector?

Yes, the Trump regime definitely left a dismantled and dysfunctional immigration bureaucracy and structure behind. But, just repeating that time after time sounds more like an excuse than a plan or a solution.

Sure, it won’t happen overnight. But, it won’t happen at all without different folks in charge at the “retail level.” I see little evidence of any progress on a real long-term plan and the short-term response is also an unnecessary mess, given that the Biden Team has had more than four months since the election to get a new structure and new personnel in place.

While there are a few “bright spots,” like Michelle Brané and Katie Tobin, I sincerely doubt that the group in charge right now is capable of solving the practical problems in rebuilding and improving our asylum and immigration systems. Nowhere is that more obvious than at EOIR, where the dysfunctional “clown show” 🤡 stumbles on, for no apparent reason.

Many of us keep trying, to no avail, to warn Judge Garland that he literally is sitting on a powder keg with the fuse lit and burning.💣 I guarantee that the next “manufactured crisis” will be when the current group of asylum cases coming from the border hit the broken, dysfunctional, ridiculously and unnecessarily backlogged, grotesquely mismanaged, ill-prepared, and anti-asylum-biased “Immigration Courts.”  Waiting for the inevitable disaster, rather than bringing in a new “A Team” from the NDPA to start solving the problems now, is a monumental mistake by Judge G.

Why not fix the system to run the way it should, rather than spreading myths, throwing spitballs, and ignoring the unfolding human tragedy that can’t be solved with draconian enforcement and lame “don’t come” messages directed at forced migrants fleeing for their lives?

🇺🇸⚖️🗽Due Process Forever!

PWS

03-23-21

⚖️🗽NDPA CORNER: LAW YOU CAN USE: CLINIC PRESENTS THE UPDATED VERSION OF “BIA & CIRCUIT COURT CASE LAW CHART: ASSAULT RELATED CIMTs”— By Tanika Vigil

 

Tanika Vigil
Tanika Vigil, Esquire
Defending Vulnerable Populations Consulting Attorney
CLINIC
PHOTO:thebuenavistaproject.com

https://cliniclegal.org/file-download/download/public/6539

 

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Thanks Tanika and CLINIC. This should be a great resource for practitioners, litigators, and students.

My apologies for the formatting of the quote!

🇺🇸🗽⚖️Due Process Forever!

PWS

03-22-21