🤯🏴‍☠️ BIA BLUNDERS BUILD BACKLOG! — 4th Cir. (2-1) & 2d Cir. Continue To Call Out BIA’s Lawless, Anti-Immigrant Behavior In Dem Administration!  — PLUS, BONUS COVERAGE — Commentary From Michelle Mendez & Me!😎

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-psg-political-opinion-and-cat-santos-garcia-v-garland

“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”

[Hats way off to pro bono publico counsel Jessica L. Wagner!]

Jessica Wagner ESQUIRE
Jessica Wagner
Associate
Gibson Dunn
D.C. Office
PHOTO: Gibson Dunn

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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https://www.ca2.uscourts.gov/decisions/isysquery/05b1e9ea-e5da-493a-8b94-45bc8e3d4757/3/doc/21-6043_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-iac-prejudice-hardship-continuance-paucar-v-garland

“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”

[Hats off to Prof. Lindsay Nash and Paige Austin!]

Lindsay Nash
Lindsay Nash
Associate Professor of Law
Co-Director, Kathryn O. Greenberg Immigration Justice Clinic
Cardozo Law
PHOTO: Cardozo Law

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!

Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.

Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!

Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.

Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.

Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases? Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”

In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.

So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.

What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!

Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7

Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong!  Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!

Michelle N. Mendez
Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.

Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.

Here are a couple of excerpts from the decision that stood out to me:

  • “In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
  • “Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS:  “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
  • “We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”

There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.

Again, really great work and outcome! Thanks for sharing with all of us, Dan!

For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!

In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.

Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.

Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing.  Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!

Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?

This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better!  American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!

Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes! 

Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!   

🇺🇸 Due Process Forever!

PWS

07-14-24

💡A Good Idea On Enhancing Refugee Processing, But Administration Doesn’t Seem That Serious About “Leveraging” It To Really Help!

Good Idea
Good ideas require dynamic, timely implementation. So far, that hasn’t been a strong point for the Biden Administration on immigration and human rights.
Public Realm

From Asylum Access & Reuters:

#US is looking to open a resettlement pathway to #refugees in #Mexico who arrived before June 6, 2023.

“The plan under discussion would allow qualifying migrants approved for refugee status to enter via the U.S. refugee resettlement program, which is only available to applicants abroad (…) refugees receive immediate work authorization and government benefits such as housing and employment assistance”

Read more below from Reuters

https://lnkd.in/gDQwYerd

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This is a fine idea, albeit one that many experts recommended that the Biden Administration implement in a robust way upon taking office in January 2021. 

If properly and generously carried out, it could 1) stop the “endless wait” for refugees stuck in Mexico; 2) relieve border pressure; 3) avoid the backlogs at EOIR and the Asylum Office; 4) admit individuals as refugees with immediate work authorization and a clear part to green cards and citizenship; 5) pave the way for more robust refugee processing elsewhere in the Western Hemisphere; 6) avoid the political stunts of GOP nativist governors; and 7) be much harder for restrictionists to challenge in court.

Past programs similar to this in the Western Hemisphere (with the exceptions of Cubans in the 1960s) have largely failed because they have been too 1) limited, 2) slow, and 3) bureaucratized.

From the Reuters article, it appears to me that the Administration is ready to repeat all three of the foregoing mistakes, assuming the program even gets off the ground at all.

It’s definitely a good idea with promise. But realizing that promise depends on the details of implementation. In this case, they don’t sound promising. Stay tuned!

🇺🇸Due Process Forever!

PWS

07-13-23

 

🐝📈 IMMIGRANTS, BLACKS, HISPANICS LEAD WAY IN KEEPING ECONOMY HUMMING, RECESSION AT BAY! — “If the U.S. economy ends up having a soft landing, it will largely be because immigrants and people of color have kept entering the labor force — helping to keep production going, consumption solid and wage growth (and inflation) cooling to a more sustainable level.”

Heather LongHeather Long @ WashPost writes:

https://www.washingtonpost.com/opinions/2023/07/09/employment-black-immigrant-workers-recession/

The U.S. labor market is on a gravity-defying streak. The June jobs report was a tad softer than expected, but the overall trend is so strong that recession fears are fading. Hiring remains solid across many industries, including construction, and companies are largely holding on to their workers.

There’s growing optimism that the country can avoid a downturn. One key reason this is possible is the surge of new workers. Nearly 4 million more people are employed now than just before the pandemic hit. That’s more families with steady incomes to spend, which helps explain the vigorous sales of everything from cars to gardening supplies. There has also been a big upshift in the labor force since the pandemic: Low-paying hospitality employment still hasn’t recovered, as workers have traded up to higher-paying business, health-care and warehouse work. This has brought another boost to incomes and an important mental shift as more workers who used to hop from job to job now see themselves on a steady career path.

. . . .

In contrast, over 2 million more Hispanics are employed now, over 800,000 more Asian Americans and over 750,000 more African Americans. This same trend played out just before the pandemic. Companies were also complaining then that they could not find workers, and experts were saying the nation was at “full employment.” Yet month after month, Black and Hispanic people (largely women) kept entering the labor force and getting jobs. It’s also notable that over 2 million more foreign-born people are employed now than before the pandemic. This means that more than half of the new workers have been immigrants.

If the U.S. economy ends up having a soft landing, it will largely be because immigrants and people of color have kept entering the labor force — helping to keep production going, consumption solid and wage growth (and inflation) cooling to a more sustainable level.

What’s going on is partly a result of low unemployment, what economists often dub a “tight” labor market. Black and Hispanic people often do not get hired until late in a recovery. In the past year, there has also been a strong uptick in jobs in government and health care, sectors in which women of color have historically found employment opportunities. Employers have also expanded their hiring searches, improved pay and benefits, and removed requirements for college degrees for many positions. All of this has helped expand opportunities. This past spring, for the first time, Black Americans were as likely to be employed as White Americans.

“There is sufficient demand that employers aren’t discriminating. They need workers,” economist William Spriggs told me in a conversation shortly before his death last month.

Spriggs spent years pointing out that too many experts were overlooking how many more people of color were ready to work if only employers would give them a chance and the jobs weren’t dead-end ones. As other economists were stunned by the labor market in recent months, especially the gains for Black people, Spriggs had a different take. “It’s not that the labor market is ‘overheated,’” he said. “It’s that the labor market is getting closer to how it’s supposed to work in a textbook.”

. . . .

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

Read Heather’s full article at the link.

Immigrants and minorities continue to over-perform for America! Not surprising to many of us. Just recently, there was an article in the LA Times about the outsized role of immigrant women, many from Ukraine, in boosting the U.S. labor market. https://www.latimes.com/politics/story/2023-07-06/new-influx-of-refugees-help-cushion-an-american-economy-strapped-for-workers.

Yet, these groups receive little credit, to a large extent because of racist myths perpetrated and spread by GOP nativists like DeSantis, Trump, Abbott, Miller, Bannon, and many others. Too often these myths and intentionally misleading statements are accepted at “face value” by the media. 

With a tight labor market, one might well ask why the U.S. is spending billions trying to detain and discourage refugees from applying for asylum at the border? Why are we dumping on individuals who, despite the mischaracterizations by both parties, are “trying to do things the right way” by applying through the legal asylum system?

Seems like the resources would better be devoted to figuring our how to fairly and generously process refugees, asylees (an important source of legal immigration), and other immigrants in a fair, robust, and timely manner, both at the border and abroad! Get these folks into legal, work authorized status faster so that they can contribute and help our economy grow!

🇺🇸Due Process Forever!

PWS

07-11-23

🤯 🤯 DOUBLE TAKEDOWN: 4th Circuit Slams BIA For 1) Mindlessly Trying To “Snuff” Allies From Afghanistan War☠️; & 2) Producing Incomprehensible Legal Gibberish 🤪 In Life Or Death Cases! — Two Recent Cases Show Deep Quality, Expertise Problems In Dem-Controlled “Courts” At The “Retail Level” Of U.S. Justice! 🤯🤬

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

1. Ben Winograd, Esquire, is an all-star appellate litigator who would have made a great BIA Chair/Chief Appellate Judge!

Dan Kowalski @ LexisNexis reports:

CA4 on Internal Relocation: Ullah v. Garland

https://www.ca4.uscourts.gov/opinions/221026.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-internal-relocation-ullah-v-garland

“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”

[Hats way off to superlitigator Ben Winograd!  Listen to the oral argument here.]

pastedGraphic.png

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Tamara Jezic ESQUIRE Jezic & Moyse Fairfax, VA PHOTO: J&M

2.  “Legacy” Arlington Immigration Court superstar Tamara Jezic runs circles around EOIR and OIL!

Dan Kowalski @ LexisNexis reports:

Multiple Failures Trigger Remand to BIA: Chen v. Garland

https://www.ca4.uscourts.gov/opinions/211371.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/multiple-failures-trigger-remand-to-bia-chen-v-garland

“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”

[Hats off to Tamara Jezic!  https://jezicfirm.com/attorneys/tamara-jezic/ Listen to the oral argument here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!

The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!

Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!

In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️

And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways.  What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?

Trial By Ordeal
Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

How bad is EOIR under Garland? One informed observer put it this way:

BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.

Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!

🇺🇸 Due Process Forever!

PWS

07-08-23

🤯 🤯🤯 COURTSIDE TRIPLE HEADER! — 1) “Why Is It A Continuing Battle To Get The Biden Administration To Follow Asylum Law, As Promised,” Asks Hon. “Sir Jeffrey” Chase? — “If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.” — 2) Commentary From The Great Lenni Benson: “Confusion Abounds!” — 3) PLUS BONUS BORDER COVERAGE FROM MICA ROSENBERG @ REUTERS: Biden’s Regs Are A Humanitarian, Legal, & Moral Catastrophe Despite BS “Success” Claims From Disingenuous USG Officials! ☠️

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

https://www.jeffreyschase.com/blog/2023/7/5/bidens-asylum-bar

Biden’s Asylum Bar

I’m sure many of you remember a childhood game called “Mother, May I?” An authority figure would say, “Jeff, take two giant steps forward!” But before doing so, the player would have to ask “Mother, may I?” Those two giant steps could only be taken if the response was “Yes, you may.” Otherwise, if the player took the steps, they were out.

If we were to take this game, direct the request and reply through an app called CBPOne, and make the stakes life or death, the result would be something very similar to the Biden Administration’s latest regulations governing asylum at the southern border.

The new rules are at odds with U.S. law. Congress has already authorized asylum seekers to take the necessary steps up to the border. The very first sentence of 8 U.S.C. § 1158 (the U.S. asylum statute) says that any noncitizen “whether or not at a designated port of arrival” and irrespective of their immigration status may apply for asylum.

And yet, not Congress but two Executive Branch agencies have now added a “Mother, May I?” type obstacle for those seeking to do what the law has long permitted. Under the new rules, the asylum seeker must first ask through a glitchy government phone app for specific permission (in the form of an appointment) before striding up to the border. Otherwise, the asylum seeker is simply not eligible for asylum, no matter how serious the danger they face if removed to their country.

How can Executive Branch agencies issue regulations that so directly contradict the statute those agencies are charged with enforcing? That question is the basis of a lawsuit filed by the ACLU, the National Immigrant Justice Center, and the Center for Gender and Refugee Studies in U.S. District Court.1

Our Round Table of Former Immigration Judges filed an amicus brief in support of petitioners’ arguments. We are in good company, as the USCIS asylum officers’ union filed a persuasive amicus brief as well.2 This means that groups representing the views of the only government officials authorized to decide asylum claims in this country (i.e. immigration judges and asylum officers) are united in opposing the new rule.

In our Round Table brief, we specifically take issue with the government’s false labeling of the new bar as merely a “rebuttable presumption” of asylum ineligibility.

Real rebuttable presumptions have long existed in our asylum regulations. For example, there is a rebuttable presumption that someone who has been persecuted in the past for reasons that give rise to an asylum claim may be persecuted again, unless major changes have since taken place in their country. There is also a presumption that one whose persecutor is the government of their country can’t find safety by simply relocating within that same country.

As you’ve probably noticed, there is a logic that flows in each of those examples from the known facts to the presumption. It is logical to assume that someone who was harmed before might be harmed again if conditions remain the same. The government may rebut the presumption by showing a fundamental change of the type that would put those fears to rest. There is a similar logic in concluding that a government’s reach extends throughout the country it governs. Again, the government may rebut that presumption through evidence establishing an exception to this general rule. In both of these examples, the fact established increases the likelihood of the fact presumed.

Now let’s return to the new rule. Say that a person faces brutal persecution on account of their political opinion if returned to their country. How does the fact that they couldn’t or didn’t get an appointment through a phone app in any way create a presumption that they are not in need of humanitarian protection? There can’t be a presumption if the fact established (i.e. that the person didn’t obtain an appointment through the app) is completely unrelated to the fact presumed (i.e. the person is not in need of asylum).

I believe it matters greatly whether the rule is considered a bar or a presumption. It is Congress that decides who may apply for asylum in this country. Thus, a regulation that admittedly creates a new bar to asylum (particularly where that bar is in direct contradiction to Congressional intent) is likely to be rejected as ultra vires by the courts. And in fact, a very similar bar to this one published by the Trump Administration was enjoined for just that reason.3 Agencies cannot usurp Congress’s role by legislating in the guise of rulemaking.

By attempting to disguise the new bar as merely a “rebuttable presumption,” the agencies seek to increase the odds of the ban passing muster this time. That is exactly the Department of Justice’s argument in its response brief: that its new rule is completely different from the prior administration’s “bar,” because according to DOJ, the new rule “does not treat manner of entry as dispositive, but instead creates a rebuttable presumption that can be overcome…”4

So the “Mother, may I?” regs clearly overstep the agencies’ legal authority. But do they create an equal barrier for all asylum seekers? The answer is no. As stated, the rules require one intending to apply for asylum to first obtain an appointment. Of course, there are more asylum seekers than there are available appointments. As mentioned, the government app through which one tries to secure an appointment, CBPOne, is full of glitches. As Prof. Austin Kocher recently noted, those glitches have impacted who gets those appointments:

the initial release of CBP One was accompanied by a variety of tech failures that did not necessarily undermine CBP’s ability to fill up its appointments calendar for asylum seekers but did create barriers to entry for migrants who were less tech savvy, could not access high-speed Internet, were part of larger families, or, either directly or indirectly, migrants who were darker-skinned or Black.5

That last point refers to the app’s problems with facial recognition that have caused it to reject applicants who are not white.6 As a result of these and other reported scheduling inequities, Sen. Edward Markey wrote to DHS back in February urging the agency to cease use of the app, due to its inaccessibility to many intending applicants, adding that “we cannot allow it to create a tiered system that treats asylum seekers differently based on their economic status — including the ability to pay for travel — language, nationality, or race.”.7

Instead of “ditching the app” as the Senator requested, the agencies instead added an exception to the bar if the noncitizen “demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”8

However, there is a big catch. Pursuant to the rule, this exception is only available to those without an appointment who make their claim at an actual port of entry.  But observers at points of entry along the southern border report that “practices by U.S. and Mexican authorities restricted asylum seekers without CBP One appointments from physically reaching U.S. ports of entry to make protection requests.”9 So the exception written into the regs is not available in reality, as one seeking to claim it is restricted from reaching the port of entry where it must be claimed, and is barred from claiming the exception if they cross the border elsewhere.

If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.10 Another article described how some of  those “lucky” enough to have obtained CBPOne appointments at Laredo claimed “that Mexican officials in Nuevo Laredo, across the border from Laredo, Texas, had threatened to hold them and make them miss their scheduled asylum appointments unless they paid them.”11 As a result, CBPOne appointments were temporarily suspended for the Laredo port of entry.

One excluded from asylum under these rules may still seek two types of lesser protections called withholding of removal.12 Oddly, under U.S. law, these alternative protections are much more difficult than asylum to qualify for, yet provide far fewer benefits. Asylum is an actual legal status which extends to the spouse and minor children of the asylee, allows for travel abroad, and puts recipients on a path to permanent residence and then citizenship in this country. By contrast, withholding of removal arises when an individual is ordered deported, and only blocks their deportation to a country in which persecution or torture is likely to occur, but otherwise leaves the recipient in limbo. The protection provides no path to family reunification or permanent status, and no right to travel abroad to visit the family members from whom the recipient is left indefinitely separated.

Nevertheless, withholding of removal does save lives. But not satisfied with simply barring asylum, the new regulations also make these lesser forms of protection far more difficult to access. This is because one must first pass something called a “credible fear interview” in order to even have the right to apply for withholding of removal in this country. As those interviews are conducted within days of the asylum-seeker’s arrival, in custody, often before the applicant has had the opportunity to obtain legal counsel or evidence, and possibly while suffering from the effects of persecution, the credible fear standard was intentionally designed to be a low one. The idea is to allow people who might genuinely be at risk the opportunity to fully develop their cases in a full removal proceeding, while only quickly removing those lacking legitimate claims.

But the new regulations raise the burden of proof by requiring the applicant at this very early stage to demonstrate a “reasonable fear” of persecution, which USCIS describes as the exact same standard required for a grant of asylum – i.e. “well-founded fear.13 Again, the lower credible fear standard being replaced was created solely because it isn’t reasonable to expect someone to prove more under the conditions faced by such recent arrivals. This intended safeguard has thus been completely undermined, as one who might only be a day or two in the country must now present a full-blown asylum claim just to earn the chance to have a hearing.

The new process requires non-lawyers to satisfy a complex legal standard they won’t understand, often without the time to seek legal advice or compile the evidence necessary to meet the heightened burden. I have no doubt that the process will result in genuine refugees being denied protection. And once again, the entire reason for placing applicants at such heightened risk is their not having obtained an appointment on a problematic phone app.

Why does the Biden Administration believe all this is necessary? In a recent column, Jamelle Bouie addressed the vows of some Republican presidential candidates to eliminate the constitutional right to birthright citizenship through executive order.14 In addition to presenting a compelling argument as to why this cannot legally be done, Bouie included in his column a wonderful quote from Frederick Douglass: “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”

In case the Biden Administration is wondering if it can champion that same sentiment today, in lieu of its convoluted attempt to ban protection to those deserving of it under our laws, the answer is: “Yes, you may.”

(Much thanks to attorneys Ashley Vinson Crawford and Steven Schulman of the law firm of Akin Gump for representing the group of former Immigration Judges and BIA Members on our amicus brief in East Bay Sanctuary.)

Copyright 2023, Jeffrey S. Chase. All rights reserved.

Notes:

  1. East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810-JST, N.D. Cal. (Filed May 11, 2023).
  2. See Britain Eakin, “Asylum Officers, Ex-Judges Back Suit on Biden Asylum Rule,” Law360, June 8, 2023.
  3. East Bay Sanctuary v. Barr, 964 F.3d 832 (9th Cir. 2020) (holding that the Trump Administration’s asylum bar was inconsistent with our asylum laws).
  4. Defendants’ Reply Brief, East Bay Sanctuary v. Biden, (June 30, 2023) at 8.
  5. Austin Kocher, “Glitches in the Digitization of Asylum: How CBP One Turns Migrants’ Smartphones into Mobile Borders,” mdpi.com, June 20, 2023, https://www.mdpi.com/2075-4698/13/6/149, section 4.
  6. Melissa del Bosque, “Facial Recognition Bias Frustrates Black Asylum Applicants to US,” The Guardian, Feb. 8, 2023,
  7. “Senator Markey Calls on DHS to Ditch Mobile App Riddled With Glitches, Privacy Problems, For Asylum Seekers,” https://www.markey.senate.gov/news/press-releases/senator-markey-calls-on-dhs-to-ditch-mobile-app-riddled-with-glitches-privacy-problems-for-asylum-seekers.
  8. 8 C.F.R. § 1208.33(a)(2)(ii)(B).
  9. International Rescue Committee, “Limits on Access to Asylum After Title 42: One Month of Monitoring U.S.-Mexico Border Ports of Entry” (June 2023), https://www.rescue.org/sites/default/files/2023-06/Limits%20on%20Access%20to%20Asylum%20After%20Title%2042_1.pdf.
  10. Sandra Sanchez, “Kidnappings, Extortion End CBP Asylum Interviews at Laredo-Nuevo Laredo Border Crossing,” Border Report, June 14, 2023, https://www.borderreport.com/immigration/border-crime/kidnappings-extortion-end-cbp-asylum-interviews-at-laredo-nuevo-laredo-border-crossing/?ipid=promo-link-block1.
  11. Valerie Gonzalez and Julie Watson, “U.S. Halts Online Asylum Appointments at Texas Crossing After Extortion Warnings,” A.P., June 12, 2023, https://apnews.com/article/mexico-border-cbp-one-laredo-bfccf8c3f52d9cec2563b40da905a391.
  12. One form of withholding covers persecution for specified reasons; the other applies to torture.
  13. See Asylum Officer Basic Training Course Lesson Plan, “Reasonable Fear and Torture Determinations,” (USCIS, RAIO, 2017) at 11 (“The ‘reasonable possibility’ standard is the same standard required to establish eligibility for asylum (the ‘well- founded fear’ standard).”)
  14. Jamelle Bouie, “Opinion: What Frederick Douglass Knew That Trump and DeSantis Don’t,” NYT, June 30, 2023.

JULY 5, 2023

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

It’s an existential problem for our nation when a Dem Administration claims as “success:” failure to recognize the rights of asylum seekers, intentionally evading asylum law, and endangering the lives of asylum seekers!

Lest anyone think the confusion, unfairness, and disorder caused by the Biden/Harris failure to implement competent, professional, expert leadership on human rights is “overhyped,” here’s an “in person” report from Professor Lenni Benson of NY Law School, founder of Safe Passage Project, and a widely reknowned “practical expert” on asylum and human rights.

Professor Lenni B. Benson
Professor Lenni B.Benson
Distinguished Chair of Immigration and Human Rights Law
New York Law School
Founder, Safe Passage Project
PHOTO: NYLS website

 

Sharing an excellent Blog post by retired IJ Jeff Chase on why the CBP One app may be endangering asylum applicants.  See below.

 

Related to the CBP One app was a hearing I observed last Friday, June 30, 2023 in NY City.

 

A self-represented individual was asked by the IJ “were you admitted or inspected” by the government, the Respondent through a Mandarin interpreter said “Yes, through the CBP app.”  The IJ paused. The OPLA attorney was visible on Webex. She was silent.

 

The IJ said “I will note your statement for the record, I find you removable as charged for not having been inspected or admitted.” [The Respondent had declined an opportunity to find an attorney.]

 

I am sure CBP will argue that entry under the app is not an inspection or admission and I haven’t looked carefully at the regulations but the issue is there to perhaps be litigated.

 

The other interesting twist in this particular case was that the government then told the Judge that she could see the Respondent had already completed biometrics and submitted an asylum application, but no application was in either her file nor the Court’s.

The IJ asked, do you have a copy?

The respondent: “On my phone.”

The IJ set a call-up date hearing to have the respondent print out the application and file it with the court in person.

 

I didn’t get a chance to speak to the Respondent, but I wondered if he had perhaps thought his interview with CBP was his asylum application or if he had filed affirmatively with USCIS.

 

Just sharing with this community.

 

Confusion abounds.

“Confusion abounds!” 🤯Why, rather than clarifying and applying the law, would the Administration intentionally create confusion and a host of unnecessary “litigatable issues?” 

Why would they create delay by supposedly having applications for asylum “filed” but unavailable electronically to either ICE or EOIR? 

Why didn’t the Administration recruit and hire real “practical experts” like Lenni Benson and her colleagues to straighten out the asylum system at the border, restore the rule of law, and reform and repopulate the critically important, currently dysfunctional, Immigration Courts and the BIA with well-qualified progressive judges, merit-selected experts in human rights and practical problem solving?

Pleased to join my friend “Sir Jeffrey” in giving a big “shout out” to our Round Table colleagues and superstar NDPA attorneys Steve Schulman, Ashley Vinson Crawford, and their pro bono team at Akin Gump for representing us on the amicus brief in East Bay Sanctuary!

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

Anybody naive enough to believe the “party line” from Administration wonks about “success at the border” should heed this “hot off the presses” report from Mica Rosenberg @ Reuters. It confirms the legal and humanitarian disaster at the border resulting from two plus years of mismanagement of asylum by Mayorkas, Garland, and the rest of the Biden immigration politicos who have  failed to undo the humanitarian and legal mess left behind by White Nationalist Stephen Miller and the rest of the Trumpist scofflaws!

Mica Rosenberg
Mica Rosenberg
National Immigration Reporter, Reuters

Mica writes:

We examined the impact of the Biden administration’s new asylum regulation at the U.S.-Mexico border after it replaced the COVID-era Title 42 expulsion policy on May 11.

 

U.S. officials have said the regulation and other Biden immigration policies, that have opened new legal pathways to the US, have dramatically reduced the number of illegal border crossings.

But in the first month of the new policy, Reuters interviews with more than 50 migrants, U.S. and Mexican officials, a review of court records and previously unreported data found:

More than 100,000 migrants waiting in northern Mexico, many trying to snag an appointment on an oversubscribed government run smartphone app; a sharp drop in people passing their initial asylum screenings; more people in detention and tens of thousands of deportations.

 

My colleagues visited the mile-long migrant camp in Matamoros, across the river from Brownsville, Texas, where conditions are deteriorating, including cases of sexual assault in the camp, and we also spoke to a father who crossed the border but was speedily deported while his family was allowed into the US.

https://www.reuters.com/investigates/special-report/usa-immigration-asylum-border/

 

Please read and share and keep in touch.

The report at the above link has many photos illustrating both the cruel stupidity of the Biden program and the amazing resilience of those still hoping, against the odds, to have their legal rights respected and protected by the USG.

Thanks, Mica, for “telling it like it is” and penetrating the “bureaucratic smokescreen” thrown up by the Administration to cover its misdeeds and human rights abuses!🤮

🇺🇸 Due Process Forever!

PWS

07-06-23

🇺🇸🗽⚖️  MORE JULY 4, 2023 THOUGHTS FROM REAL AMERICAN PATRIOTS!

 

Kelly White ESQ
Kelly White
Director, Detained Adult Program
CAIR Coalition
PHOTO: Linkedin

From Kelly White, Director, CAIR Coalition Detained Adult Program:

https://lnkd.in/em8yNdSH

The Feeling of Freedom

July 3, 2023 by Kelly White, Esq.

I love this country dearly, but not without deep sorrow for the mistakes of my own homeland.  And so, I criticize it because I want this place to mean freedom for everyone.

On July 4th, I will celebrate with my mixed-immigrant, first-generation family, neighbors, and community.  I tell my little one she is an Incan-Viking Warrior (because she is). And that there are places where not everyone is free, including in our own country. But we are working to change that. I try to teach her about refugees and why people flee their homes to come to the United States.

We also talk about family separation. Not long after zero-tolerance began, another child told mine that she “belongs in a cage” after all of us, young and old alike, saw those images. These are the misgivings of small children but also the symptoms of a deeply flawed system and culture. The way the Zero Tolerance Policy desecrated freedom continues to haunt us today.

As the director of CAIR Coalition’s Detained Adult Program, I believe we can help right the path our country is currently on—one that continues to separate families with unrestrained racism and violence.  The family separation crisis is ongoing, senseless, and continues to destroy our communities.

The United States has the largest immigration system in the world and is currently detaining approximately 29,000 immigrants, more than 63 percent of whom have no criminal record.  In addition, the Biden Administration has deported over four million people, the majority for simple civil immigration violations, including not having the correct paperwork.  This should be the least complicated public policy-making decision.

Immigrants’ rights groups need a new platform to stop these inhumane policies.  It should be simple:

  • Stop separating families.
    On an annual average, over 1,500 children in the DMV are impacted by a parent’s detention. Over a thousand children put their best forward as they try to move on with their lives without their parents—over a thousand children!
    Why policies that harm our own children and communities are allowed to continue is heartbreaking.  Our policies must keep families together.
  • Provide Immigrants in deportation proceedings with government-appointed counsel.
    Immigrants in deportation proceedings, including parents, are forced to defend themselves against a government-trained attorney without a right to court-appointed counsel in a language often not their own.  This means children become indefinitely separated from their parents simply because the right to a public-defense counsel is not available in immigration court. One solution would be to support the Fairness to Freedom Act and local programs for the right to counsel.

Being a parent is scary enough because there is very little you have control over in this world, but I know I am free to access the institutions in this country to care for, educate, and protect my child, but not everyone does.

As I celebrate this holiday, I will light fireworks and sparklers and do so as a symbolic spark to action for change and family unity.  I hope you will join me.

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

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera

From Professors Alberto Benitez and Paulina Vera, Co-Directors, GW Law Immigration Clinic:

“Thank you isn’t enough to express how grateful we are.”

On May 22, 2023, V-M- was granted her green card. Her applications were filed on April 18, 2022 and her interview at USCIS was waived. V-M- is the wife of our long-time client, E-K-. The Clinic started representing E-K- in 2009 and helped him obtain asylum, his green card, and then his U.S. citizenship. Once he became a U.S. citizen, he was able to petition for his wife, V-M-, with whom he has two kids, ages 2 and 4. Like E-K-, V-M- is from Cameroon.

Please join me in congratulating Mir Sadra Nabavi and Trisha Kondabala, who both worked on the case.

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

Jay Kuo
Jay Kuo
American Author, Producer, CEO of The Social Edge
PHOTO: Facebook

From Jay Kuo @ Substack:

https://statuskuo.substack.com/p/independence?utm_medium=email

Today, a personal essay.

When I was little, my Ba would bring out fireworks for the Fourth of July. He acquired them in places like Maryland, where our family would go summer camping on the state beaches, and brought them across state lines to our little suburban enclave in upstate New York. As soon as it was dark enough out, many of our neighbors would gather, the area kids eager to see what Mr. Kuo had in store that year. Sparklers for sure. Sometimes big noisemakers. And always more than a few showstopper rockets with brilliant flourishes of color. He would hand them out to us to dole out to the other children without a thought to liability.

The 1970s were a crazy time.

Subscribed

It didn’t occur to me until much later that there was some irony here. We were the only Chinese American household in the area. With four kids and a house on the corner of two main streets, our family was the center of activity for Tioga Terrace. And on July 4, Ba would bring the magic, developed centuries ago by people who looked like us, gunpowder mixed carefully with binding and coloring agents, bringing wonder and delight.

I understood we were celebrating the independence of America from the British Crown, and I most clearly remember the bicentennial celebration that took place in 1976. Our schools had focused heavily on American history that year, yet most of my understanding of what had transpired 200 years before still came from watching our Founding Fathers sing about it in the movie 1776.

Musical theatre has always been in my DNA.

In that merry portrayal, the heroes of the revolution were towering figures: debonair, erudite, romantic, able to find gallows humor at the darkest of hours. I remember best the musical number around whether slavery should be condemned in the words of the Declaration. It was a terrifying and bewildering song. What did molasses and rum and Bibles have to do with Roots? And I remember vividly poor Thomas Jefferson, the author of that brilliant document, being called out for still practicing slavery on his property.

“I have already resolved to release my slaves,” said a quietly thoughtful Jefferson.

I sincerely believed that earnest and brave man, who thrilled his colleagues with the playing of his violin, his adoring wife Martha swooning to the tune. He was a noble man, to be admired.

We didn’t learn the real truth about Jefferson, or about any of the Founding Fathers, in class. And it wasn’t taught to me in college either, even though I was a political science major. The first person to challenge my view of our any of the Founders was a Black colleague I met during my RA training, who had brought up that we don’t ever teach real history. She cited the story of Jefferson and Sally Hemings, one of the many slaves he owned—a girl he had raped when she was just 14 years old.

I didn’t want to believe it. The Declaration of Independence, and its famous author, were sacred in my mind. The principles they espoused were of the highest order. And in my mind, July 4th was my favorite holiday, next to Christmas. For one day, Ba was cooler than all the other dads, and at least for that day we were the most popular kids in the neighborhood, even though we were not fully American—at least, that’s how it had always felt.

Once the veil was pierced, however, the truth began to burn holes through my mind. I began to question a great deal of the mythology that had been spoonfed to me, really to all of us. Christopher Columbus, that was a shocker. Manifest Destiny. The Chinese Exclusion Act. The Tulsa Massacre. The internment of Japanese Americans. With each revelation, it was hard not to become deeply and irretrievably cynical about our history and the way our country has always acted toward the most vulnerable in America.

There’s a strange thing that happens when you come out the other end of all that. I began to wonder how they did it. How did people like Frederick Douglass, Dr. Martin Luther King, Jr., and even my own hero George Takei still have anything left of faith and belief in this country, after all it had done to them, their families, their communities?

“We hold these truths to be self-evident.”

That all people are equal. That we all possess “unalienable rights of life, liberty and the pursuit of happiness.”

Those words were revolutionary in their time. And they indeed spawned a revolution. Despite my great disillusionment, they still inspire and hold true for me today. That’s the power of the enduring promise of America. Not that we will always, or even most of the time, get things right, or that we won’t stumble our way into dark and nearly hopeless chapters of genocide, slavery, internment, and yes, growing Christofascism today.

Loving the promise of America isn’t the same as loving what it has done and still does to break that promise, over and over. But I’ve come to appreciate the high value of maintaining our gaze upon that North Star, the one that still shines for liberation, fairness and equality. That the promise has now endured nearly 250 years speaks to our collective and deep desire for hope, even in the face of broad and dehumanizing injustice and inequity.

The America that our white, propertied, slave-holding male Founders envisioned isn’t what we’ve got today. But that’s because we’ve improved upon that vision. For me, the America of tomorrow is a truly multi-racial, multi-denominational, pluralistic democracy, a place of opportunity and prosperity, with no one left behind. That is the vision that sustains me. It’s the one where my Chinese father could hand out fireworks on July 4 to excited, white kids and seem the most American of all the dads.

We inherited both a sacred promise and a big mess from those who came before, and we’re still working on both. The fact that it is so very hard, and we have so very far still to go, is strong evidence of the incredible value of that promise. This is evidenced in great part by how fiercely others will fight with all they have to keep us from it.

But nothing worth fighting for was ever won without a fight. And in the end, the enemies of our unalienable rights will fail. That is the faith I keep.

Happy Independence Day. Our fight continues.

— Jay

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

As Jay says, “the fight continues.” And, the patriots quoted above are on the front lines!

Sad historical footnote: Whatever the “musical version of TJ supposedly ‘resolved,’” the real-life version freed only two enslaved workers in his lifetime and five (including two of his own children) at death. The rest of his enslaved workers and their families were sold upon his death to pay off his monumental debts. Thus, these enslaved African-Americans paid a huge personal price for this “Father of Freedom’s” gross financial mismanagement!

Slavery & Jefferson
For African Americans, working and being owned by the primary drafter of the Declaration of Independence was a bad deal! No freedom, no pay, and almost all of those he owned at death got sold to pay off the debts he left, resulting in the permanent separation of families! This is the real history of our nation that Trump, DeSantis, and other GOP White Nationalist “snowflakes” don’t want you to hear or learn. 
IMAGE: Public realm

According to Wikipedia:

Thomas Jefferson, the third president of the United States, owned more than 600 slaves during his adult life. Jefferson freed two slaves while he lived, and five others were freed after his death, including two of his children from his relationship with his slave (and sister-in-law) Sally Hemings. His other two children with Hemings were allowed to escape without pursuit. After his death, the rest of the slaves were sold to pay off his estate’s debts.

🇺🇸 Due Process Forever!

PWS

07-05-23

🇺🇸🗽⚖️🎇 JULY 4, 2023 — “On True American Patriotism” By Robert Reich In Substack! — “The true meaning of patriotism is the opposite of Trump’s exclusionary White Christian Nationalism.”

Robert Reich
Robert Reich
Former US Secretary of Labor
Professor of Public Policy
CAL Berkeley
Creative Commons License
Naturalization
Naturalization Ceremony
USG Official Photo
Public Domain

https://open.substack.com/pub/robertreich/p/what-is-the-true-meaning-of-patriotism?r=330z7&utm_medium=ios&utm_campaign=pos

Friends,

On Saturday, Donald Trump conducted the second formal rally of his campaign — in Pickens, South Carolina, where an estimated 50,000 turned up under the scorching sun to hear him.

There, he advanced his version of patriotism based on White Christian Nationalism.

He began by celebrating the town’s namesake, Francis Pickens, who was governor of South Carolina when it was the first to secede from the Union on the eve of the Civil War. Trump assured the crowd he wouldn’t let “them” change the town’s name.

He commended the Supreme Court for rejecting affirmative action “so someone who has not worked as hard will not take your place.”

He saluted the court’s decision to overrule Roe v. Wade so “radical left Democrats will not kill babies.”

He promised to stop “men competing in women’s sports” and prevent classroom teachers from teaching the “wrong” lessons about sexuality or history.

He condemned foreign governments that “send” over the border “people in jails and insane asylums” and promised to deny entry to “all communists and Marxists.”

And he declared America’s most dangerous opponents not to be Russia, China, or North Korea but “enemies within” America.

Rubbish.

The true meaning of patriotism is the opposite of Trump’s exclusionary White Christian Nationalism.

America’s moral mission has been toward greater inclusion — providing equal rights to women, Black people, immigrants, Native Americans, Latinx, LGBTQ+, Muslim, Jewish, atheist, and agnostic.

True patriots don’t fuel racist, religious, or ethnic divisions. Patriots aren’t homophobic or sexist.

Nor are patriots blind to social injustices — whether ongoing or embedded in American history. They don’t ban books or prevent teaching about the sins of the nation’s past.

True patriots are not uncritically devoted to America. They are devoted instead to the ideals of America — the rule of law, equal justice, voting rights and civil rights, freedom of speech and assembly, freedom from fear, and democracy.

True patriots don’t have to express patriotism in symbolic displays of loyalty like standing for the national anthem and waving the American flag.

They express patriotism in taking a fair share of the burdens of keeping the nation going — sacrificing for the common good.

This means paying taxes in full rather than lobbying for lower taxes or seeking tax loopholes or squirreling away money abroad.

It means refraining from making large political contributions that corrupt American democracy.

It means blowing the whistle on abuses of power even at the risk of losing one’s job.

And volunteering time and energy to improving one’s community and country.

Nor is patriotism found in baseless claims that millions of people vote fraudulently. Or in pushing for laws that make it harder for people to vote based on the Big Lie that the 2020 election was stolen.

Patriotism lies instead in strengthening democracy — defending the right to vote and ensuring more Americans are heard.

Patriots understand that when they serve the public, their responsibility is to maintain and build public trust in the institutions of democracy.

They don’t put loyalty to their political party above their love of America. They don’t support an attempted coup.

They don’t try to hold onto power after voters have chosen not to reelect them. They don’t make money off their offices.

When serving on the Supreme Court, they recuse themselves from cases where they may appear to have a conflict of interest. They don’t disregard precedent to impose their own ideology.

America’s problem is not as described by Trump and his White Christian Nationalism — that the nation is losing its whiteness or dominant religion, that too many foreigners are crossing its borders, that men are competing in women’s sports or teachers are not celebrating the nation’s history.

America’s problem is that too many Americans — including its lawmakers — are failing to understand what patriotism requires.

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

Happy July 4!😎🇺🇸

🇺🇸 Due Process Forever!

PWS

07-04-23

 

🏴‍☠️🤯 USG’S FAILED DETERRENCE POLICIES HARM ASYLUM SEEKERS, ENRICH & ENABLE CARTELS! — New Report From Insight Crime! — “The prevention through deterrence policies used by the US government have created an increasingly lucrative black market for human smuggling.”

Stephen Miller Monster
MEXICAN CARTELS NAME STEPHEN MILLER “BIDEN ADMINISTRATION PERSON OF THE YEAR” FOR HIS CONTINUING DEADLY INFLUENCE ON U.S. BORDER POLICIES!  Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Insight Crime reports:

https://substack.com/redirect/16f2dc60-a5f2-48e3-89db-9b2eb639d861?j=eyJ1IjoiMmQzZTIifQ.YnB6oyRxafApuirRPkrfQupKbpWIvJ3g2zVXvim2p28

Executive Summary

In 2019, the US Department of Homeland Security (DHS) announced the Migrant Protection Protocols (MPP).1 What would become known as “remain in Mexico” was the latest in a decades-long effort by successive Republican and Democrat administrations to curb migration by making it increasingly difficult for migrants to enter and stay in the United States.

However, the policies have had numerous unintended consequences, including bolstering criminal organizations along the US-Mexico border. Whereas the smuggling of drugs and weapons used to dominate the cross-border contraband trade, human smuggling has morphed into one of the most lucrative industries for crime groups. It also has made it increasingly dangerous for migrants who face more risks en route and along the US border.

This report aims to highlight the role US policy has played in this transformation, which continues to evolve today. Specifically, it analyzes the ways in which Mexican organized crime groups have become involved in human smuggling as risks rose, prices surged, and migrants began to move through less-traveled corridors. The goal is to inform policymakers who are looking to address irregular migration and combat Mexico’s criminal organizations. We also aim to provide relevant stakeholders with opportunities for positive intervention to mitigate this human suffering by targeting the most violent criminal actors.

The findings are based on two years of desktop and field research across the Mexican states of Baja California, Chihuahua, Coahuila, Sonora, and Tamaulipas, where human smuggling is prominent. It includes dozens of in- person and remote interviews with migrants, asylum seekers, US and Mexican prosecutors, security experts, government officials, religious leaders, and migrant advocates, among others. In addition, we analyzed government data on human smuggling investigations and prosecutions, judicial cases, and previous studies on the topic.

1 US Department of Homeland Security (DHS), “Migrant Protection Protocols,” 24 January 2019.

   insightcrime.org 4

Unintended Consequences: How US Immigration Policy Foments Organized Crime on the US-Mexico Border

2

Major Findings

 

 insightcrime.org 5

1. The prevention through deterrence policies used by the US government have created an increasingly lucrative black market for human smuggling. Transnational criminal networks have assumed greater control over the movement of people and replaced the personalized, community-based nature of human smuggling that once existed.

2. The US government’s immigration policies have provided more opportunities for organized criminal groups to victimize migrants. The policies have, most notably, created a bottleneck along the US-Mexico border where northbound migrants are forced to congregate as they determine whether they are eligible to seek asylum and contemplate alternative ways to enter the country. As a result, they have become highly susceptible to extortion and kidnapping. And over time, restrictive immigration policies have expanded the scope of these lucrative, secondary criminal economies.

3. The US government’s immigration policies and the externalization of immigration enforcement to countries like Mexico have expanded the breadth of official corruption. As the US government has increased its reliance on third countries for enforcement and pushed migrants to remain in these countries, officials from these nations have expanded their illegal operations. These include extortion, kidnapping, and human smuggling rackets.

. . . . 

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

Read and listen to the full report at the above link.

In many ways, this detailed report, based on two years of desk and field research, is a “Duh!” It mostly confirms what experts, advocates, and those who truly understand asylum law and border security have been saying for years. Arrogant politicos from both parties have “tuned out the truth” and suggestions for positive changes, for different reasons.

The GOP has no interest in the truth because it conflicts with and undermines their racist false narrative about “open borders” and “replacement theory.” The Dems, by contrast, basically recognize the racist lies behind the GOP “close the border” narrative. But, once in office, Dem “leaders” lack the political and moral courage to stand up for human rights, the rule of law, and to make the refugee, asylum, and legal immigration systems work, at the border, abroad, and in the interior.

In other words, while nominally opposing the GOP’s nativist/racist/alarmist rhetoric (particularly during elections when votes from progressives and ethic communities are needed), Dem leaders basically accept much of the restrictionist premise. That is, that increased regular legal immigration resulting from well-functioning refugee, asylum, and legal immigration systems that comply with existing laws and due process would be politically unpopular and that the Administration lacks the self-confidence and expertise to manage legal immigration, including asylum, in an orderly, professional, and competent manner that ultimately will greatly benefit both our nation and the immigrants.

Thus, experts and advocates find themselves continually isolated in a deadly and frustrating “no-persons’ land!’ They are armed with undeniable truth and the facts to back it up, yet for transcendent reasons, neither party will give them the time of day.

So, those with the answers are stuck in an endless cycle of law suits, toothless protests, letters in opposition, focus groups, op-eds, law review articles, talking heads, and blogs (like this one) none of which offer much hope of a durable solution. And, in the meantime, the cartels are loving every minute of political failure on the part of America!

🇺🇸 Due Process Forever!

PWS

07-03-23

 

🤯COURTING FAILURE: GOP HAS “LEVERAGED” COURT CONTROL TO ENACT UNPOPULAR FAR-RIGHT ANTI-DEMOCRACY AGENDA BY FIAT — MEANWHILE, DEMS WON’T BRING PROGRESSIVE PRO-EQUAL-JUSTICE CHANGE TO COURTS THEY “OWN!”☹️ — The GOP Plays Hard Ball ⚾️, While Garland & Dems Play Whiffleball @ EOIR!🤮

Whiffle Ball
When it comes to playing “judicial hardball” with the GOP, Garland and the Dems are ill-equipped!
Creative Commons 3.0

Stephen Collinson writes at CNN:

https://www.cnn.com/2023/06/30/politics/conservatives-remake-america-courts

. . . .

In recent years, the [GOP’s] blind loyalty to Trump’s radicalism – especially his election lies – has caused it to even challenge the structure of democracy. A sense of national crisis and imminent political extinction, for example, ran through Trump’s rhetoric in the aftermath of the 2020 election, prompting some of his followers to use violence as a way of settling their political grievances on January 6, 2021.

Conservative Supreme Court decisions over the last two years have been especially hard for liberals to accept because they believe that the current majority is ill gotten.

The right’s dominance of the court happened in large part because then-Senate Majority Leader Mitch McConnell refused to even grant a confirmation hearing to Obama’s final pick for the top bench, Merrick Garland, who now serves as attorney general in the Biden administration. This allowed Trump to name Justice Neil Gorsuch as his first Supreme Court nominee in 2017. But McConnell later turned his back on his own questionable principle that Supreme Court nominees should not be elevated in an election year by rushing through the confirmation of Trump’s final pick, Amy Coney Barrett, in 2020 – which enshrined the current 6-3 conservative majority.

The move not only confirmed Trump’s status as a consequential president whose influence will be felt decades after he left office. It cemented McConnell among the ranks of the most significant Republican Party figures in decades and ensured conservative policies will endure even under Democratic presidencies and congressional majorities.

Recent revelations about questionable ethics practices by some of the conservative justices have further fueled fury about the legitimacy of the court among liberals.

But not all of the court’s recent decisions have infuriated the White House and Democrats. Earlier this week, for instance, liberals were hugely relieved when the court rejected a long-dormant legal theory that held that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections. The so-called Independent State Legislature Theory, a favorite of the Trump campaign, had led to fears that Republican state legislatures in some states could simply decide how to allocate electoral votes regardless of results.

Still, the broad trajectory of the court – on issues including gun control, race, business, regulation, climate and many other issues – is firmly to the right.

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

It’s no coincidence that the Trumpist far-right assault on democracy began during the 2016 campaign with unprovoked attacks on Mexican migrants and bogus claims about the border and immigration. It was skillfully, if corruptly, followed up with weaponization of the immigration bureaucracy and packing of the Immigration Courts by the likes of Miller, Sessions, Barr, and Cooch. 

We have seen the GOP’s assault and dehumanization of migrants carry over into attacks on a wide range of disadvantaged groups in American society including African-Americans, Hispanic-Americans, Asian-Americans, Muslim-Americans, women, the LGBTQ+ community, and many others.

Although the Supremes have held that every “person” in the United States is entitled to due process under law, that concept is ludicrous as applied to the U.S. Immigration Courts, where anti-asylum, anti-immigrant, pro-DHS bias still drives much of the decision making, prosecutors appoint the judges and write the rules, the Government can change results that don’t match its political agenda, and individuals are on trial for their lives without a right to appointed counsel or many times even the ability to fully understand the proceedings against them. Predictably, the overwhelming number of individuals stuck in this abusive system are persons of color, many women and children!  

This is “colorblind” American justice? Gimmie a break!

Although Dems acknowledged many of these outrageous defects in the Immigration Courts while campaigning for votes in 2020, once in power, they have shown little inclination to correct this unacceptable situation that undermines our democracy.

In particular, given a chance to reform the Immigration Courts, re-compete on a merit basis judicial positions filled under questionable procedures (at best) during the Trump Administration, bring in competent judicial administrators laser-focused on due process and best practices, and remake the Immigration Courts into a bastion of great progressive judging —  driven by due process and equal protection, Garland and the Dems have whiffed. In that way they have largely followed the Obama Administration’s failure to take seriously due process for persons who happen to be in Immigration Court. 

The failure of Dems to take immigrant justice seriously, and their inexcusable blown opportunity to reshape the Immigration Courts into a training and proving ground for the best and most qualified candidates for Article III judgeships ties directly into the anti-democracy shift in the Article IIIs and the GOP’s ability to carry out its right-wing agenda through a Supremes majority highly unrepresentative of Americans and our values.

An informed observer might well wonder “If the Dems are unwilling and unable to reform and improve the Federal Courts they do control — and apparently are ashamed of the progressive values they espouse — how will they ever counter the right’s anti-democracy agenda?”

🇺🇸 Due Process Forever!

PWS

07-02-23

☠️⚰️ DETENTION KILLS: R. Andrew Free Seeks YOUR Help, NDPA, To End The “DHS Detention Death Tax!”

 

Border Death
Sometimes, even “Detention Until Death” (“DUD”) is insufficient “punishment” for the USG to inflict on those whose “crime” is to assert their legal rights under U.S. law.  Taken at the Tijuana-San Diego border.
Tomas Castelazo
In order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

https://action.mijente.net/petitions/end-the-detention-death-tax?source=rawlink&utm_medium=social&utm_source=actionrawlink&share=54194d63-6e64-4a5f-bb38-3b448745f7f3

pastedGraphic.png

Join Andrew F. in signing this petition.

TO: SECRETARY OF HOMELAND SECURITY ALEJANDRO MAYORKAS

END THE DETENTION DEATH TAX

pastedGraphic_1.png

End the Detention Death Tax – a draconian policy that fails to make funds available to the families of people who die in ICE custody for the return and transportation of their loved ones’ remains.

We urge ICE to alter its Detainee Death policies so that Field Office Directors and the Director’s Office have discretion to authorize payment for the prompt return and transport of the remains of people who die in ICE custody.

It is, quite literally, the very least ICE could do when it fails to keep humans alive.

WHY IS THIS IMPORTANT?

US Immigration and Customs Enforcement (ICE) currently has no defined limit on the amount of money it will spend to cage the body of a person in removal proceedings.

When one of ICE’s deadly cages claim the life from that body, the limit ICE will spend to return them to their loved ones is $0.

This Death Tax presents grieving family members with a bill alongside the devastating news that their loved one is gone forever. Forcing families to pay for the retrieval and transportation of loved ones is cruel, inhumane, and unnecessary.

CATEGORIES

REASONS FOR SIGNING

  • Since 2017, we’ve been forced to raise over 100,000 to help families gather their loved ones’ remains, examine those remains using independent forensic pathologists, and return or repatriate those remains to wherever the lost loved one called “home.” This is cruel, inhumane, and unjust. We can end it.
    Andrew F. 16 hours ago

UPDATES

14 hours ago

25 signatures reached

15 hours ago

10 signatures reachedpastedGraphic.png

Join Andrew F. in signing this petition.

TO: SECRETARY OF HOMELAND SECURITY ALEJANDRO MAYORKAS

END THE DETENTION DEATH TAX

pastedGraphic_1.png

End the Detention Death Tax – a draconian policy that fails to make funds available to the families of people who die in ICE custody for the return and transportation of their loved ones’ remains.

We urge ICE to alter its Detainee Death policies so that Field Office Directors and the Director’s Office have discretion to authorize payment for the prompt return and transport of the remains of people who die in ICE custody.

It is, quite literally, the very least ICE could do when it fails to keep humans alive.

WHY IS THIS IMPORTANT?

US Immigration and Customs Enforcement (ICE) currently has no defined limit on the amount of money it will spend to cage the body of a person in removal proceedings.

When one of ICE’s deadly cages claim the life from that body, the limit ICE will spend to return them to their loved ones is $0.

This Death Tax presents grieving family members with a bill alongside the devastating news that their loved one is gone forever. Forcing families to pay for the retrieval and transportation of loved ones is cruel, inhumane, and unnecessary.

CATEGORIES

REASONS FOR SIGNING

  • Since 2017, we’ve been forced to raise over 100,000 to help families gather their loved ones’ remains, examine those remains using independent forensic pathologists, and return or repatriate those remains to wherever the lost loved one called “home.” This is cruel, inhumane, and unjust. We can end it.
    Andrew F. 16 hours ago

UPDATES

14 hours ago

25 signatures reached

15 hours ago

10 signatures reached

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

R. Andrew Free ESQUIRE
R. Andrew Free ESQUIRE
Founder, DetentionKills
PHOTO: St.Thomas U. Website

“Detain Until Dead” (“DUD”) seems harsh enough “punishment” to be meted out to “civil” prisoners in DHS’s New American Gulag (“NAG”). But, Andrew points out that the cruel and inhuman treatment doesn’t end, even with death. 

Join Andrew, me, and other members of the NDPA in seeking to ameliorate this indefensible policy by signing our petition at the above link.

🇺🇸Due Process Forever!

PWS

06-30-23

⚖️😎 THE BLUM REPORT: Roberto Covers A “212(c) Redux” In Houston, Highlighting Garland’s Disturbing Failure to “Harvest The Low Hanging Fruit” 🍒 @ EOIR!

Roberto Blum, Esquire Immigration Attorney Houston, TX PHOTO: LinkedinRoberto Blum, Esquire, reports from Houston:

Hello Judge, it has been a while since I reported from Houston. Although I have not reported, I have kept reading (and learning from) your writings. So it was a pleasant surprise when I recently came across some BIA decisions and saw your name written on them.

They are Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995) and Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).

You see, I was preparing for a individual hearing on the merits, where the client, a 65-year old Mexican national, who has lived in the U.S. since about 1979, and was admitted as a Legal Permanent Resident in 1991, was found to be deportable under INA section 237(a)(2)(b)(i) due to a controlled substance conviction from 1994. His relief: Section 212(c).

The saga started in early January 2012, when he was encountered by ICE, was detained, and placed into removal proceedings. The firm I work for began to represent him at that point. While waiting for his detained merits date, the client suffered a medical condition and was not expected to survive, so ICE released him to family members, essentially so he wouldn’t die in their custody. However, he did not die, he survived, and made a full recovery.

Fast forward to today. Ever since his release, his case got stuck in the “aimless docket reshuffling” that you so often write about. It was not until today, June 28, 2023, that he finally got his day in court for an immigration judge (IJ) to consider his case.

Not knowing whether the assigned IJ or DHS trial attorney (TA) would have any experience with Section 212(c) because this is an old type of relief that is not very common anymore and also due to the hostility often encountered at Houston EOIR, I prepared for the worst case scenario, and feared that the client might not get a fair shake.

Fortunately on the day of trial, I saw an experienced TA was representing the government. Before the IJ went on the record the TA and I discussed the case, and the TA told me that he did not have any issues with the case. I asked if he would stipulate to a grant of relief and he said yes, but warned the IJ might still want to take testimony. The IJ came on the record shortly thereafter, and asked if we had any agreements, at which point I told the IJ that we had an agreement for stipulation to a grant of relief because the evidence submitted was sufficient to carry our burden. The TA confirmed our agreement, and the IJ responded that she had reviewed the record, and also agreed that the client was eligible and deserving of relief because of his long-time physical presence, the conviction was very old, and the client had not had any recent criminal history.

In less than 5 minutes, this case that had been pending over 11 years and 5 months (or about 4,184 days), was resolved by agreement of all parties! The client was stunned and did not even know what happened. He did not expect it to be this fast after waiting so long. The client confided in me that his mother passed away a few days ago in Mexico, and he had been very worried because all of his witnesses (family members) went to Mexico to attend the funeral and were not available to testify on his behalf. I remembered something my grandmother would tell me as a child, that when a close loved one dies, they go to heaven and become your guardian angel, so I thought… just maybe… his mother had been his guardian angel today and whispered in the TA and IJ’s ear before the hearing.

In all seriousness, I ask myself (as this is not the only case I have had that has been pending for over 10 years, only to be resolved by stipulation at the final hearing in less than 5 minutes) how much $$$ is the government spending to fight a case like this for more than a decade–only for it to be resolved in 5 minutes of discussion. (Of course if it had not been resolved favorably, we would have continued litigating the case and appealed to the BIA, something that under current wait times would last another 3 or more years and who knows how much more resources). I imagine that between the IJ and TA’s salary, the court staff, support staff, and even utilities of operating a court, the price tag might be well above $100,000 for a case like this. This is not sustainable.

I asked the client for permission to share the photo we took after the hearing, and if I get the permission I will share it with you.

I am glad the case was resolved favorably by agreement, however, I was ready to use your cases to help defend my client.

DPF!

RB

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

Love this, Roberto! Makes my day! Good precedents, great scholarship, collegiality, good judging, teamwork combining to make the system work in a just and humane manner! Thanks for forwarding and DPF!

Matter of Arreguin, written by the late Judge Fred W. Vacca,  was one of the first precedents issued, in Volume 21 of the I&N Dec., during my time as BIA Chair. That Volume also reflected the “new style” of BIA precedent format with the “bound volume” citation and pagination available in the “slip opinion” and the individual author of the majority and separate opinions clearly identified. 

Always gratifying to see that the now “old” precedents turned out by the long-gone “Schmidt Board” still have something to say and teach. It was a time when intellectual dialogue and meaningful debate of important issues was encouraged, rather than being discouraged and avoided as has happened in today’s “assembly line culture” at EOIR!

Additionally, Roberto’s report raises a continuing question. What if rather than misusing EOIR as a “deterrent,” and thereby engaging in “Aimless Docket Reshuffling,” Garland and the other “powers that be within the Administration” returned EOIR to its original purpose of insuring due process, fundamental fairness, and best, most efficient judicial practices? 

I’m sure there is lots of “low hanging fruit,” 🍒exemplified by this case, that could be prioritized for quick disposition or reassigned to a better-functioning version of USCIS for more efficient completion. Indeed, with guidance and some institutional discipline by a “Better BIA” of true asylum expert Appellate Judges, I’d guess that the majority of the hundreds of thousands of asylum cases pending for more than two years could be granted without full hearings, either at EOIR or a better functioning Asylum Office. Additionally, many of the long-pending “Non-LPR Cancellation Cases” now clogging the EOIR docket could be more efficiently handled by a better functioning and better staffed USCIS.

It appears that nobody with any realistic vision of what the future could and should look like, and an appreciation of both the cosmic importance and great positive potential of a functional EOIR, has paid any attention to 1) the composition of the EOIR backlog, 2) the abundant opportunities for positive resolutions that would benefit everyone, 3) the lack of quality control at today’s EOIR, and 4) the glaring absence of practical problem solving skills among senior EOIR management and the BIA (not to mention DOJ management and leadership in this area, such as it is). 

🇺🇸 Due Process Forever!

PWS

06-29-23

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants!  ☠️ — Marvin A.G. v. Garland (published)!

Four Horsemen
BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees!
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”

[Hats off to Eric Suarez!]

Eric Suarez
Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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

EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!

In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!  

The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.

Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations. 

The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.

Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.

Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, and  widely-acknowledged qualifications for these critically important judgeships. 

Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’

I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:

We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!

Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:

Maybe the Board should read my article on the proper test for nexus:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

 

 

😇🙏🏽SANCTUARY, A TIME-HONORED ANTIDOTE TO CRUELTY & STUPIDITY, PUTS AMERICA’S 🇺🇸🗽BEST FOOT FORWARD 👏: “It means treating [migrants] like humans in need rather than pawns.”

MATTHEW 25
Holy card ( 1899 ) showing an illustration to the Gospel of Matthew 25, 34-36 – rear side of an obituary.
Wolfgang Sauber
Creative Commons Attribution-Share Alike 4.0

https://www.latimes.com/opinion/story/2023-06-21/la-ed-sanctuary-cities

From the L.A. Times Editorial Board:

Editorial: Sanctuary cities are working just fine, thank you

When Republican Govs. Greg Abbott of Texas and Ron DeSantis of Florida bused and flew migrants to Los Angeles, New York, Washington, D.C., and other so-called “sanctuary cities,” they might have envisioned they were exporting the same chaos as border states have experienced as they grapple with a historic number of migrants. They wanted leaders in these cities to admit they were wrong about their immigrant-friendly policies.

Earlier this month, Abbott sent migrants on a bus to Los Angeles. And DeSantis has admitted he dispatched migrants on two chartered flights to Sacramento a few days earlier, luring them with false promises of housing, shelter and legal help.

But Abbott and DeSantis are mistaken if they think they are teaching cities with sanctuary polices any lessons with their inhumane political stunts or causing their leaders to rethink their commitment to not treating migrants as criminals.

Those governors and their political allies also seem to be confused about what it means when cities have sanctuary policies. Though policies vary, providing sanctuary means not turning migrants over to federal immigration authorities simply for being in the country illegally. It means treating them like humans in need rather than pawns.

OPINION

Editorial: Migrants flown to Sacramento are human beings, not political pawns

June 5, 2023

That’s what leaders in Los Angeles, Sacramento and other “sanctuary cities” did as buses and planes dumped dozens of tired and often confused migrants on their doorsteps in recent months. They rallied attention and resources, while religious and other nonprofit organizations stepped up to welcome the migrants with shelter, food and clothes. In some instances, these migrants have even found temporary jobs, illustrating the need for their labor.

Abbott and DeSantis may also not realize that sanctuary policies were designed to help law enforcement keep communities safe. Sanctuary policies were developed because police in many cities such as Los Angeles were frustrated because undocumented immigrants were not reporting crimes or stepping forward as witnesses for fear of deportation.

Critics say these sanctuary cities have laws and policies that shield criminals and obstruct federal immigration policies. But cities with sanctuary policies have lower than average crime rates, higher household incomes and lower poverty rates, according to various studies.

Local authorities did not refuse to cooperate with immigration enforcement, as critics claim. They simply limited the role of local law enforcement in immigration cases, for example, by not using local police to do immigration checks or by not holding an undocumented immigrant in custody for a few extra days to serve federal authorities’ schedules.

OPINION

Editorial: There’s a crisis at the border all right, but one created by political posturing

Sept. 20, 2022

Los Angeles is in the midst of transitioning from a “city of sanctuary” to “sanctuary city.” The difference is more than just semantics. The former designation is little more than a statement by city leaders in 2017 that they opposed then-President Trump’s dehumanizing anti-immigrant policies, which included separating young children from their parents. Some of those children have yet to be reunited with their parents years later. Earlier this month, the City Council voted to strengthen the policy by banning city personnel or resources from being used for immigration enforcement.

It’s true that the transports of migrants by the Texas and Florida governors have been inconvenient to cities such as Washington and New York, which have had to scramble to find housing and other resources. But they haven’t done a thing to undermine the foundation on which sanctuary policies were built.

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The money wasted by these GOP nativist neo-fascists could much better be spent on coordinated efforts to help asylum seekers to help themselves and our nation in the process. Obviously, GOP states like Florida and Texas have money to  burn. 

Also, to the extent that cities “targeted” by these GOP White Nationalist Governors have persevered in the face of  attempts to sow chaos, it has been largely without the coordination, guidance, and leadership of the Biden Administration. Seems like that should be “low hanging fruit” for progressive Democrats to change!

🇺🇸 Due Process Forever!  

PWS

06-25-23

⚖️🗽INSPIRING AMERICA: NDPA SUPERSTAR 🌟 & BRILLIANT GEORGETOWN REFUGEE LAW & POLICY ALUM BREANNE PALMER “GETS IT!” — “For me, the line between the so-called ‘Great Replacement Theory,’ the targeting of Black Americans in Buffalo in May 2022, and the deleterious, disproportionate effects of Title 42 on Black asylum seekers couldn’t have been brighter.”

 

Breanne Justine Palmer, Esquire
Breanne Justine Palmer, Esquire
Senior Legal Policy Advisor
Democracy Forward
PHOTO: Linkedin

https://www.linkedin.com/posts/breannepalmer_career-retrospective-the-leadership-conference-activity-7074007461837340672-_0EI?utm_source=share&utm_medium=member_ios

Breanne writes:

People talk frequently about forward and backward movement in one’s career, but less so about the gift of lateral moves. I have been lucky enough to make at least one facially “lateral” move that drastically changed the scope and reach of my immigration advocacy work: as the first Policy Counsel for Immigration at The Leadership Conference on Civil and Human Rights!

Through the work of incredible jacks-of-all-trades on staff like Rob Randhava, The Leadership Conference has played an integral role in a number of major moments in the immigration space and maintained an Immigration Task Force. The organization wanted to concretize this work by hiring a full-time staffer, and on the heels of my work at the UndocuBlack Network, I felt this role was the right fit. I grew up in a distinctly Jamaican household, visiting our home country most of my childhood summers, but I also sought a sterling education in the Black American experience.

One of my proudest moments at The Leadership Conference was also one of the most complex, challenging moments of my career—trying to connect the dots between seemingly disparate, painful topics to highlight the interconnectivity of our racial justice and immigrant justice movements. For me, the line between the so-called “Great Replacement Theory,” the targeting of Black Americans in Buffalo in May 2022, and the deleterious, disproportionate effects of Title 42 on Black asylum seekers couldn’t have been brighter. I felt The Leadership Conference was perfectly poised to connect those dots in a public way, by co-leading a sign-on letter to the Biden Administration. But I had to make my case with both internal and external partners with care and finesse, drawing on all of my education and experiences to guide me. No community wants to feel as though another community is opportunistically seizing a moment to elevate its interests while riding on the backs of others. I am proud to say that I persuaded a number of skeptics, many of whom were rightfully protective of their communities and civil rights legacies, to see the urgency of drawing these connections for those in power. Through this effort I was reminded that the work of connecting the Black diaspora is arduous, but can bear powerful fruit.

Read the rest on my blog!

https://breannejpalmer.squarespace.com/blog/career-retrospective-the-leadership-conference-on-civil-and-human-rights

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I’ve said it many times: There will be neither racial justice nor equal justice for all in America without justice for migrants!

Breanne obviously “gets it!” So do leaders like Cory Booker (D-NJ). 

Sadly, however, many Democrats, including notable African-American leaders like President Barack Obama, Vice President Kamala Harris, AAG Civil Rights Kristen Clarke, and former AGs Eric Holder and Loretta Lynch don’t! They all blew or are squandering opportunities to make due process and equal justice for asylum seekers and other migrants a reality, rather than a hollow, unfulfilled promise!

In particular, the “intentional tone-deafness” of the Biden Administration on treatment of asylum seekers and other migrants of color has been astounding and shocking! Speaking out for justice for George Floyd and others while denying due process and the very humanity of Blacks and other people of color seeking legal asylum at the Southern Border is totally disingenuous and counterproductive!

Additionally, while there recently have been some improvements in merit-based selections by AG Garland, the U.S. Immigration Courts, including the BIA, are still glaringly unrepresentative of the communities affected by their decisions and the outstanding potential judicial talent that could and should be actively recruited from those communities. An anti-immigrant, pro-enforcement, uber-bureaucratic “culture” at EOIR, which metastasized during the Trump Administration, discouraged many well-qualified experts, advocates, and minorities from competing for positions at EOIR.

The inexplicable failure of Vice President Harris to establish herself as the “front person” to actively encourage and promote service in the Immigration Courts among minorities and women is highly perplexing. Additionally, the failure of the Biden Administration to recognize the potential of the Immigration Courts as a source of exceptionally-well-qualified, diverse, progressive, practical scholars for eventual Article III judicial appointments has been stunning! 

Meanwhile, for an “upgrade” of the struggling EOIR, one couldn’t do better than Breanne Palmer: brilliant practical scholar, forceful advocate, courageous, creative innovator, and inspirational role model. As Breanne says on her website:

I try to live by one of Audre Lorde’s creeds:

“I am deliberate and afraid of nothing.”

Sure could use more of that intellectual and moral courage and “leadership by example” on the bench at EOIR! And, as I mentioned yesterday, there are or will be more judicial positions available at EOIR at both the appellate and trial levels. See, e.g.https://wp.me/p8eeJm-8KK.

Thanks Breanne for choosing to use your tremendous skills and abilities to further due process, equal justice for all, and racial justice in America. So proud of you!

🇺🇸 Due Process Forever!

PWS

06-23-23

🇺🇸⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ CALLING NDPA PRACTICAL SCHOLARS/EXPERTS: NOW’S YOUR CHANCE TO BECOME A BIA APPELLATE IMMIGRATION JUDGE AND HELP CHANGE THE TRAJECTORY OF AMERICAN LAW!  — The “Supreme Court of Immigration” Needs Supremely Qualified, Expert Judicial Talent!

I want you
Don’t just complain about the awful mess @ the BIA! Get on the appellate bench and do something about it!
Public Domain

Summary

The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Learn more about this agency

https://www.usajobs.gov/job/733279200

 

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Although there was no formal announcement from EOIR, it appears that Appellate Immigration Judge William Cassidy has finally retired from the BIA. As many of you know, Judge Cassidy, appointed by AG Billy Barr, was notoriously hostile to asylum seekers and to a fair application of the generous well-founded-fear standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi. His “final” TRAC Immigration asylum denial rate as an Immigration Judge in Atlanta was an appalling and bone-chilling 99.1%! https://trac.syr.edu/immigration/reports/judge2022/00004ATD/index.html.

This is a chance for a “real judge” with impeccable academic knowledge, practical solutions, and actual experience representing asylum applicants in the EOIR quagmire to bring some long-overdue and absolutely essential positive, progressive, change to the BIA – a group overall known for its too-often stilted,  sloppy, improperly pro-Government, “go along to get along,” “don’t rock the boat by standing up for due process and human rights” decision-making.

The BIA’s lousy performance on the “stop time rule,” where they were twice rebuked by the Supremes for ignoring the language of the statute and the Court’s own holdings, is a classic example of why we need fundamental change at the top of EOIR. This substandard performance generated more unnecessary backlog and “Aimless Docket Reshuffling” in a system that can ill afford it (2 million case backlog). It also created unnecessary confusion and uncertainty in a situation where clarity was both required and achievable. I daresay, it’s hard to imagine any NDPA “practical scholar” getting sidetracked the way the BIA did in its misguided rush to please DHS Enforcement and its political “handlers” at DOJ!

Also, because of “jurisdiction stripping” legislation over the years, limiting the review of the Article IIIs in many areas, the BIA often represents the last realistic chance for individuals to obtain justice and fair treatment! That the BIA too often acts like an “assembly line,” doesn’t diminish its potential to become part of the solution rather than a source of further problems and unfairness.

Don’t let this important Federal Judgeship, with real life or death power over the lives of individuals and the future of our democracy, go by default to another “insider” or asylum denier.

I hear complaints from practitioners nationwide about the BIA’s poor scholarship and failure to issue realistic, positive guidance. But, it’s not going to change unless the “best and the brightest” from the NDPA apply for these critical jobs at EOIR and become agents of change.

Don’t let this chance go by to make a difference in the lives of others and to use your hard-earned expertise and practical skills to fundamentally change our failing U.S. judicial system — starting at the critical “retail level.”  

The deadline is July 5, 2023, conveniently during the July 4 holiday. But, don’t let mindless bureaucratic tactics and feeble efforts at recruitment deter you. Force the USG to recognize and employ “judicial excellence” – once the “vision” of EOIR (before “good enough for government work” became the motto). I urge well-qualified minority candidates to apply for this key position!

🇺🇸 Due Process Forever!

PWS

06-23-23