THE GIBSON REPORT — 08-16-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland DOJ Continues To Defend Miller’s White Nationalist Agenda In (Far Too) Many Cases, Private Prisons Continue To Cash In On Biden’s Continuation Of Trump/Miller “New American Gulag!”

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

NEWS

 

US curtailing evacuation flights of Afghans to US for now to prioritize Americans

CNN: As of last Thursday, 1,200 Afghans and their families had been evacuated to America… According to sources familiar with the matter, Biden national security officials told senators during a briefing on Afghanistan Sunday that there are as many as 60,000 Afghans who could potentially qualify as SIV holders or applicants, P1/P2 refugees, or others like human rights defenders and could need evacuation. See also ‘Forget the visas’: The scramble is on to save Afghan partners as Taliban close in; In desperation, U.S. scours for countries willing to house Afghan refugees.

 

Federal judge orders Biden administration to reinstate ‘Remain in Mexico’ policy

USAToday: Judge Matthew Kacsmaryk, a Trump appointee, directed the Biden administration to reinstate the program, saying the administration “failed to consider several critical factors” when ending the program. Kacsmaryk delayed his order for seven days to give the administration a chance to appeal.

 

U.S. to expand online asylum registration amid ‘unprecedented’ border arrivals

Reuters: Mayorkas, speaking at a news conference in south Texas, did not provide details about which asylum seekers would be eligible to use the online system, but said further asylum changes would be announced in the coming days.

 

July was busiest month for illegal border crossings in 21 years, CBP data shows

WaPo: The number of migrants detained along the Mexico border crossed a new threshold last month, exceeding 200,000 for the first time in 21 years, according to U.S. Customs and Border Protection enforcement data released Thursday.

 

In Texas, a Quarantine Camp for Migrants With Covid-19

NYT: By this week, at least 1,000 migrants were housed at the teeming camp, erected by the nearby city of McAllen as an emergency measure to contain the spread of the virus beyond the southwestern border. About 1,000 others are quarantined elsewhere in the Rio Grande Valley, some of them in hotel rooms paid for by a private charity.

 

Biden railed against Trump’s immigration policies, now defends them in courts

Politico: Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.

 

How a Private Prison Company Profits from Biden’s Broken Immigration Pledge

Newsweek: [S]ix months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.

 

Mexico has pushed hundreds of migrants expelled from the U.S. on to Guatemala, stranding them in a remote village far from their homes

WaPo: Last week, the Biden administration began the expulsion flights from the United States to the southern Mexican city of Villahermosa in a bid to deter repeat border crossers. Mexico agreed to accept those flights and said it would allow those who feared persecution in their home countries to apply for asylum. But the migrants — mostly from Honduras, El Salvador and Guatemala — who have arrived in the remote Guatemalan border town of El Ceibo describe a chaotic series of expulsions, first from the United States in planes and then from Villahermosa to Guatemala by bus. They say they were not given an opportunity to seek refuge in Mexico.

 

ICE to avoid arrest and deportation of undocumented victims of crime under new policy

CNN: The agency’s new policy, issued Wednesday, marks the latest effort by the Biden administration to pivot from the Trump administration and tailor enforcement priorities. Going forward, ICE will require agents and officers to help undocumented victims seek justice and facilitate access to immigration benefits, according to the agency.

 

Some 100,000 Green Cards at Risk of Going to Waste in Covid-19 Backlog

WSJ: The situation complicates what has already been a yearslong wait for many of the 1.2 million immigrants—most of them Indians working in the tech sector—who have been waiting in line to become permanent residents in the U.S. and are watching a prime opportunity to win a green card slip away.

 

Death toll in Haiti earthquake climbs to 1,297 as search continues for survivors

CBS: The death toll from a magnitude 7.2 earthquake in Haiti soared to at least 1,297 Sunday as rescuers raced to find survivors amid the rubble ahead of a potential deluge from an approaching tropical storm. Saturday’s earthquake also left at least 2,800 people injured in the Caribbean nation, with thousands more displaced from their destroyed or damaged homes.

 

Hochul’s Past Push to Arrest Immigrants Resurfaces as She Readies to Replace Cuomo

TheCity: Lt. Gov. Kathy Hochul, speaking publicly for the first time as New York’s governor-to-be, insisted Wednesday she’s “evolved” since fighting against driver’s licenses for undocumented immigrants by threatening them with possible arrest and deportation.

 

LITIGATION/CASELAW/RULES/MEMOS

 

BIA Dismissed Appeal After Finding NACARA Grant Bars Applicant from Applying for Cancellation

AILA: The BIA dismissed the appeal after concluding that the respondent’s prior receipt of special rule cancellation of removal under the NACARA bars her from applying for cancellation of removal. Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021)

 

3rd Circ. OKs NJ AG’s Limit On Sharing Immigration Info

Law360: The Third Circuit signed off Monday on an order from the New Jersey Attorney General’s Office barring law enforcement agencies from sharing certain information with federal immigration authorities, ruling in a precedential opinion that two federal statutes do not bar the directive since they regulate states and not private actors.

 

CA4 Upholds BIA’s Asylum Denial to Former Member of MS-13 Gang in El Salvador

AILA: The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)

 

CA5 Says It Lacks Jurisdiction to Review BIA’s Prima Facie Hardship Determination Pursuant to INA §242(a)(2)(B)(i)

AILA: The court held that it lacked jurisdiction to review the BIA’s finding that the petitioner had not presented prima facie evidence of her eligibility for cancellation of removal pursuant to INA §242(a)(2)(B)(i). (Parada-Orellana v. Garland, 8/6/21)

 

CA8 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in Somalia

AILA: The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)

 

CA8 Finds “Mexican Mothers Who Refuse to Work for the Cartel” Is Not a PSG

AILA: The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)

 

CA8 Finds BIA Did Not Err in Excluding Petitioner’s Mental Health Issues from PSC Analysis

AILA: The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)

 

8th Circ. Grants Appeal For U Visa Seeker And Daughters

Law360: The Board of Immigration Appeals was wrong to deny administrative closure to a Mexican woman and her daughters while they had a U visa petition pending, an Eighth Circuit panel ruled, faulting the board’s reliance on now-vacated precedent.

 

CA9 Holds That BIA Applied Wrong Burden of Proof to Petitioner’s Adjustment of Status Application

AILA: Granting the petition for review, the court held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the “clearly and beyond doubt” burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. (Romero v. Garland, 8/2/21)

 

CA9 Remands for BIA to Consider Petitioner’s Social Group Claim Based on His Perceived Gang Membership

AILA: The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)

 

CA9 Holds That Convictions Under Hawaii’s Fourth Degree Theft Statute Are Not Categorically CIMTs

AILA: The court held that Hawaii’s fourth degree theft statute, a petty misdemeanor involving property of less than $250, is overbroad with respect to the BIA’s definition of a crime involving moral turpitude (CIMT) and is indivisible, and granted the petition for review. (Maie v. Garland, 8/2/21)

 

CA9 Marijuana Conviction Costs Man Deportation Relief

Law360: The Ninth Circuit denied a Mexican man’s appeal of his deportation order Wednesday, saying the Board of Immigration Appeals was correct in ruling that his past conviction for marijuana possession made him ineligible for cancellation of removal.

 

CA11 Finds Florida Conviction for Being a Felon in Possession of a Firearm Is Not a “Firearm Offense” Under the INA

AILA: The court held that the petitioner’s conviction in Florida under Fla. Stat. §790.23(1)(a) for being a felon in possession of a firearm did not constitute a “firearm offense” within the meaning of INA §237(a)(2)(C) and its cross-reference to 18 USC §921(a)(3). (Simpson v. Att’y Gen., 8/4/21)

 

DOJ’s Block Of Texas’ Migrant Transport Order Extended

Law360: A Texas federal judge on Friday extended for an additional 14 days an emergency order temporarily blocking Gov. Greg Abbott’s executive order restricting ground transportation of migrants detained at the border amid the COVID-19 pandemic.

 

National Security Vetting Is Said To Illegally Delay Green Card

Law360: An American who has waited years for his Pakistani wife to have her green card application processed is suing the federal government, blaming their visa limbo on what they call an illegal national security vetting program.

 

ICE Releases Updated Guidance Regarding Civil Immigration Enforcement Actions Involving Noncitizen Crime Victims

AILA: ICE released ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, with guidance on how it will handle civil immigration enforcement actions involving noncitizen crime victims.

 

USCIS Provides Guidance on Afghan Special Immigrant Parolee and LPR Status

AILA: USCIS SAVE issued guidance regarding Afghans who are eligible for Special Immigrant Visas and their special immigrant LPR status or special immigrant parole that meets the special immigrant requirement for certain government benefits.

AILA Doc. No. 21081344

 

USCIS Temporarily Extending Validity Period of Form I-693

AILA: USCIS stated that 8/12/21 through 9/30/21, it will extend the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years now to four years due to COVID-19-related delays in processing. Guidance is effective 8/12/21, and comments are due by 9/13/21.

 

Executive Order Suspending Entry of Certain Persons Contributing to the Situation in Belarus

AILA: Executive order issued 8/9/21, imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus, including suspending the unrestricted immigrant and nonimmigrant entry into the United States of such persons. (86 FR 43905, 8/11/21)

 

Presidential Memo on Deferred Enforced Departure for Hong Kong

AILA: On 8/5/21, President Biden issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States on 8/5/21, with certain exceptions. (86 FR 43587, 8/10/21)

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

Monday, August 16, 2021

Sunday, August 15, 2021

Saturday, August 14, 2021

Friday, August 13, 2021

Thursday, August 12, 2021

Wednesday, August 11, 2021

Tuesday, August 10, 2021

Monday, August 9, 2021

 

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

Thanks, Elizabeth!

The article by Anita Kumar in Politico should be an “eye opener” for those progressive advocates who think Garland is committed to due process, equal justice, and best practices in Immigration Court and elsewhere in the still dysfunctional immigration bureaucracy. This particular quote stands out:

“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”

I dare any advocate to claim Garland has moved “swiftly and aggressively” to undo the Miller White Nationalist agenda! Yes, after a crescendo of outrage and public pressure from NGOs, he has vacated four of the worst xenophobic and procedurally disastrous precedents. But, there are dozens more out there that should have been reversed by now.

More important, returning the law to its pre-Trump state is highly unlikely to bring meaningful change and fairer results as long as far too many of the Immigration Judges and BIA Judges charged with applying that law are Trump-era appointees, some with notorious records of anti-immigrant bias and a number who have denied almost every asylum case that came before them. (And, it’s not like A-R-C-G- was fairly and consistently applied during the Obama Administration, which largely gave “the big middle finger” to progressives in appointments to the Immigration Judiciary).

Is an IJ who was denying nearly 100% of A-R-C-G- cases (and in some cases misogynistically demeaning female refugees in the process) even prior to A-B- suddenly going to start granting legal protection? Not likely!

Are BIA Judges who got “elevated” under Trump by being notorious members of the “Almost 100% Denial Club” suddenly going to have a “group ephifany” and start properly and generously applying A-R-C-G- to female refugees and insisting that trial judges do the same? No way!

Is a BIA where notorious asylum deniers are heavily over-represented and others have shown a pronounced tendency to “go along to get along” with Miller-type xenophobic White Nationalist policies now going to do a “complete 360” and start churning out “positive precedents” requiring IJs to fairly and generously grant asylum as contemplated in long-forgotten (yet still correct) precedents like Cardoza-Fonseca, Mogharrabi, and Kasinga? Not gonna happen!

Will a few rumored, long delayed progressive expert appointments to the Immigration Judiciary “turn the tide” of  systemic dysfunction, intellectual dishonesty, anti-immigrant, anti-asylum “culture,” lack of expertise, and dereliction of due process and fundamental fairness at EOIR? Of course not! 

So, progressives, don’t kid yourselves that Garland has “seen the light” and is on your side. Judge him by his actions and appointments!

Note, that unlike Sessions and Barr, it’s actually hard to judge Garland on his rhetoric, because there isn’t much. He’s five months into running a nationwide system of dysfunctional “star chambers.” 

But, to date, he hasn’t uttered a single inspiring pronouncement on returning due process, fundamental fairness, human dignity, decisional excellence, or professionalism to EOIR, connecting the dots between immigrant justice and racial justice, or given any warning that those who don’t “get the message” will be getting different jobs or heading out the door.  

I still remember my first personal encounter with AG Janet Reno when she exhorted everyone at the BIA to promote “equal justice for all!” I still think of it, and it’s still “on my daily agenda” — over a quarter century later, even after the end of my EOIR career! 

Where are Garland’s “inspiring words” or “statements of values” on immigrant justice and equal justice for all! Actions count, but rhetoric in support of those actions is also important. So far, Garland basically has “zeroed out” on both counts!

Yes, along with the entire immigration community, I cheered the appointment of Lucas Guttentag! But, Lucas isn’t deciding cases, nor has he to date brought the progressive experts to EOIR Management and repopulated the BIA with progressive expert judges who will end the due process abuses and grotesque injustices at EOIR and start holding IJs with anti-asylum, anti-migrant, anti-due-process agendas accountable.

Also unacceptably, progressive litigators haven’t been brought in to assume control of the Office of Immigration Litigation (“OIL”) and end wasteful, and often ethically questionable, defense of the indefensible in immigration cases in the Article IIIs. 

We need bold, progressive, due process/fundamental fairness/racial justice reforms! It’s got to start with major progressive personnel changes! And, it should already have started at EOIR!

The best laws, regulations, precedents, and policies in the world will remain ineffective so long as far too many of those judges and senior executives charged with carrying them out lack demonstrated commitment to progressive values, not to mention relevant, practical expertise advancing human and civil rights!

Contrary to what many think, bureaucracy can be moved by those with the knowledge, guts, determination, and commitment to do it! Seven months after Biden’s inauguration, the DOJ remains a disaster with the situation at EOIR leading the way! 

It didn’t have to be that way! It’s unacceptable! Foot dragging squanders opportunities, wastes resources, and, worst of all, actually costs lives and futures where immigration is at stake. This isn’t “ordinary civil litigation!” It’s past time for tone-deaf and inept Dem Administrations to stop treating it as such!

The following item from Angelika Albaladejo at Newsweek should also be a “clarion call” to advocates who might have thought this Administration (and even Congressional Dems) has a real interest in human rights reforms.

Here’s the essence:

President Joe Biden promised to end prolonged immigration detention and reinvest in alternatives that help immigrants navigate the legal process while living outside of government custody. These promises were part of Biden’s campaign platform and the reform bill he sent to Congress on his first day in the White House.

But six months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.

Meanwhile, community case management—which past pilot programs and international studies suggest is less expensive while more effective and humane—is receiving comparatively little support.

Same old same old! Election is over, immigration progressives who helped elect Dems are forgotten, and human rights becomes an afterthought —  or, in this case, worse!

Progressives must continue to confront a largely intransigent and somewhat disingenuous Administration. A barrage of litigation that will tie up the DOJ until someone pays attention and, in a best case, forces change on a tone-deaf and recalcitrant Administration, is a starting point. 

But, it’s also going to take concerted political pressure from a group whose role in the Dem Party and massive contributions to stabilizing our democracy over the past four years is consistently disrespected and undervalued (until election time) by the “Dem political ruling class!”

Legislation to create an Article I Immigration Court and get Garland, his malfunctioning DOJ, and his infuriating “what me worry/care attitude” completely out of the picture has also become a legal and moral imperative, although still “a tough nut to crack” in practical/political terms. But, we have to give it our best shot!

Actions (including, most important, personnel changes) solve problems and save lives! Unfulfilled promises, campaign slogans, and fundraising pitches not so much! 

Grim Reaper
Many who helped put Biden and Garland in office believed that “Americans Gulags” and “EOIR StarChambers” would be a thing of the past by now. But, outrageously, they are still alive, well, and thriving in the Biden Administration, even being expanded and defended by Garland’s team of morally and ethically challenged DOJ lawyers. “The Inspiring Words & Deeds of AG Merrick Garland on Immigrant Justice” would fill a book about as large as “The Combined Wisdom & Humanity of Donald Trump & Stephen Miller.”  Oh well, at least the Grim Reaper must be happy with the way things are going!
Image: Hernan Fednan, Creative Commons License

 

😎Due Process Forever! Star Chambers and the New American Gulag, Never!

PWS

08-18-21

🆘 HELP! — THE U.S. ASYLUM & REFUGEE SYSTEMS ARE KAPUT ☠️⚰️ — WITHOUT LEGISLATION! — THANKS TO TRUMP, STEPHEN MILLER, & A FAILED SUPREME COURT — THE BIDEN ADMINISTRATION’S APPROACH TO DATE HAS BEEN INEPT, AT BEST, STARTING WITH JUDGE GARLAND’S INEXCUSABLE FAILURE TO REPLACE MILLER’S ANTI-ASYLUM “JUDGES” @ THE BEYOND DYSFUNCTIONAL EOIR WITH COMPETENT EXPERT JUDGES COMMITTED TO RE-ESTABLISHING THE RULE OF LAW FOR REFUGEES — “Tune In” To Georgetown Law’s Expert Panel Discussing My Colleague Phil Schrag’s Latest Hard-Hitting Expose Of America’s Failing Justice System: “The End of Asylum”

Georgetown Law
Georgetown Law
Professor Philip G. Schrag
Professor Philip G. Schrag
Georgetown Law
Co-Director, CALS Asylum Clinic
Professor Andrew Schoenholtz
Professor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies
PHOTO: GeorgetownLaw
Professor Jaya Ramji-Nogales
Professor Jaya Ramji-NogalesAssociate Dean for Academic Affairs
I. Herman Stern Research Professor
Temple Law
PHOTO: Temple Law

 

 

https://www.law.georgetown.edu/news/live-virtual-event-on-the-end-of-asylum/

 

Live Virtual Event on “The End of Asylum”

APRIL 1, 2021

WASHINGTON – On Thursday, April 15, 2021, three law professors from Georgetown Law and Temple University will discuss their new book, The End of Asylum, the Trump administration’s legacy on asylum policy, and where the Biden administration goes from here.

WHAT

Migration at the southern border and asylum are again front page news. The Biden administration claims that mounting numbers of children and families in immigration detention facilities and shelters is attributable to the Trump administration’s destruction of the asylum system. In their new book, The End of Asylum, three law professors analyze the nature, scope, and lawlessness of that destruction and the end of the promise that Congress made, in the Refugee Act of 1980, to welcome migrants who feared persecution abroad. They also propose steps that the Biden administration can take, both alone and in cooperation with Congress, to restore and improve a robust system of asylum in America.

The event is co-sponsored by Online and On Topic, Georgetown School of Foreign Service; Migration and Refugee Policy Initiative, Georgetown McCourt School of Public Policy; Georgetown University’s Institute for the Study of International Migration; and Temple University Beasley School of Law.

WHO

Philip G. Schrag
Georgetown Law Delaney Family Professor of Public Interest Law; Co-Director, Center for Applied Legal Studies (Georgetown Law’s asylum clinic)

Andrew I. Schoenholtz
Gerogetown Law Professor from Practice; Director of the Human Rights Institute and Co-Director of Center for Applied Legal Studies at Georgetown Law

Jaya Ramji-Nogales
Associate Dean for Academic Affairs and the I. Herman Stern Research Professor at Temple University’s Beasley School of Law

Al Bertrand (moderator)
Director of Georgetown University Press

WHEN

Thursday, April 15, 2021
3:00 – 4:30 pm EDT

WHERE

Please RSVP for the Zoom Webinar.


Georgetown University Law Center is a global leader in legal education based in the heart of the U.S. capital. As the nation’s largest law school, Georgetown Law offers students an unmatched breadth and depth of academic opportunities taught by a world-class faculty of celebrated theorists and leading legal practitioners. Second to none in experiential education, the Law Center’s numerous clinics are deeply woven into the Washington, D.C., landscape. Close to 20 centers and institutes forge cutting-edge research and policy resources across fields including health, the environment, human rights, technology, national security and international economics. Georgetown Law equips students to succeed in a rapidly evolving legal environment and to make a profound difference in the world, guided by the school’s motto, “Law is but the means, justice is the end.”

 

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

Great panel! Great book!

Only one major problem: Phil, Andy, Jaya, and others like them should be running EOIR & the BIA by now, putting their “practical scholarship” and organizational skills into action to reform this disgracefully dysfunctional, life and democracy-threatening system and to restore due process, professional competence, and the rule of law to the U.S. Immigration Courts where it has disappeared!

As I’ve said many time before: It’s not rocket science, 🚀 but it has (quite avoidably) become “mission impossible” with the indolent, tone-deaf, approach that Judge Garland and his team have exhibited at the DOJ to date. Par for the course in Dem Administrations. But, bad news for those of  us who believe in due process,  social justice, and equal justice for all persons in America. (Hey, isn’t that right out of the Constitution?)
It’s like nobody in the Biden Adminhistration ever toured the “St. Louis Exhibit” or the exhibits in the “German Judiciary” sections of the Holocaust Museum. Perhaps Judge Garland and others need a “VIP Tour,” after hours!

🇺🇸⚖️🗽Due Process Forever!

 

DISCLAIMER: My views as expressed above are solely my own and do not represent the position of any of the panelists, Georgetown Law, or any person or entity, living or dead, of any importance whatsoever!

PWS
04-14-21

⚔️🛡SIR JEFFREY ON THE LIFE-SAVING IMPORTANCE OF COMMENTING: Yeah, Preparing Regulatory Comments Is A Royal Pain In The Butt, Particularly When You Know The Malicious Incompetents In The White Nationalist Regime Won’t Pay Any Attention — But, Federal Judges 🧑🏽‍⚖️⚖️ Often Do!

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

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/12/2/pangea-v-dhs-the-power-of-comments&source=gmail-imap&ust=1607531177000000&usg=AOvVaw2vQATGEpuX0Oss0KcQPyVx

Pangea v. DHS: The Power of Comments

The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules.  Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded.  For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.

As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump.  In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment.  Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality.  They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.

In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea.  The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum.  Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.

Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious.  The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family).  These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection.  In publishing the final rule, the Departments did acknowledge these concerns raised in the comments.  However, as explained above, more than mere acknowledgement was required.

Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required.  As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”

In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes?  Is that what you thought we said?  We meant they were similar to particularly serious crimes.  Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”

That section which  the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum.  The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law.  That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.

But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion.  The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”

Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection.  But thanks are also due to those who took the time and effort to submit comments.  Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions. 

Imagine all the positives for America that could be accomplished if  all of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.

Ultimately, better qualified, more scholarly, human, and humane Justices —  judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.

Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!

Due Process Forever!

PWS

12-03-20

NDPA SUPERHEROINE 🦸‍♀️ HILLARY SCHOLTEN IS IN THE “HOME STRETCH” OF HER RACE IN THE MI-3 DISTRICT — Join Rep. Joaquin Castro & Us On Oct. 28 To Help Hillary Dash To The Finish Line With A HUGE Win In One Of The Key Congressional Contests Of 2020!🇺🇸🗽⚖️

 

Hillary Scholten/Joaquin Castro
Hillary Scholten/Joaquin Castro

Click here for the link to the invitation to this great and timely event:

10.28 Virtual Discussion on Immigration Invite

A victory for Hillary is a win for the people of Michigan’s 3rd Congressional District (who will get A++++ representation from one of the smartest, hardest working, most innovative, most dedicated, most capable, bravest, nicest, and most caring individuals I have ever known) and for justice and good government in America.  Hillary Scholten is America’s bright future!

Go Hillary!🇺🇸

 

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PWS

10-26-20

 

 

“TORTURE” UNDER U.N. DEFINITION! ☠️— “GOVERNMENT-SANCTIONED CHILD ABUSE!” — WHAT HAVE WE BECOME AS A PEOPLE & A NATION? — AMERICA HAS PUT NOTORIOUS CHILD ABUSERS AND SHAMELESS “PERPS” OF “CRIMES AGAINST HUMANITY” IN CHARGE — We Now Have A Chance To Throw Them Out & Start The Return To Human Decency As An Overriding National Value! 🗽

 

Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!

Eugene Robinson
Eugene Robinson
Opinion Columnist
Washington Post
Source: WashPost Website

Eugene Robinson @ WashPost:

What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?

This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.

We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.

These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.

Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.

What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.

[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]

The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.

Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.

Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.

Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.

. . . .

Read the rest of Eugene’s article here:

https://www.washingtonpost.com/opinions/do-we-tolerate-the-kidnapping-of-children-this-election-is-our-chance-to-answer/2020/10/22/0f60d17c-1496-11eb-ad6f-36c93e6e94fb

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Elise Foley
Elise Foley
Deputy Enterprise Editor
HuffPost
Photo Source: HuffPost.com

Elise Foley @ HuffPost:

President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.

“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”

Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.

Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.

“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”

. . . .

Read the rest of Elise’s article here:

https://www.huffpost.com/entry/trump-debate-family-separation_n_5f924368c5b62333b2439d2b

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Ruth Marcus
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.

Ruth Marcus @ WashPost:

545.

That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.

545.

Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.

545.

That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.

545.

That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.

Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.

Those truths could not have been clearer cut than during Thursday night’s debate.

Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”

First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”

No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.

Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”

Welker persisted: “But how will you reunite these kids with their families, Mr. President?”

Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”

This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.

Welker, for the third time: “Do you have a plan to reunite the kids with their families?”

At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”

. . . .

Read the rest of Ruth’s op-ed here:

https://www.washingtonpost.com/opinions/545-children-are-still-separated-from-their-families-what-if-one-of-them-were-yours/2020/10/23/63d3be04-154f-11eb-ba42-ec6a580836ed_story.html

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Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair


Bess Levin
@ Vanity Fair:

The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.

Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”

pastedGraphic.png

Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”

“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.

“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”

At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”

Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.

pastedGraphic_1.png

With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”

pastedGraphic_2.png

Read the rest of The Levin Report here:

https://mailchi.mp/c4319dce073e/levin-report-trumps-heart-bursting-with-sympathy-for-his-buddy-bob-kraft-2882762?e=adce5e3390

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Jacob Soboroff
Jacob Soboroff
NBC Correspondent
Jacob Soboroff at the ABC News Democratic Debate
National Constitution Center. Philadelphia, PA.
Creative Commons License

Here’s a video from NBC New’s  Jacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”

https://www.msnbc.com/msnbc/watch/soboroff-the-conditions-of-migrant-children-trump-described-as-well-taken-care-of-made-me-sick-94450757764

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Julia Edwards Ainsley

And, here’s another video from NBC News’s always incisive and articulate Julia Edwards Ainsley:

https://www.cnbc.com/video/2020/10/21/lawyers-cant-find-parents-of-545-migrant-children-separated-by-the-trump-administration.html

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There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!

PWS

10-25-20

SCOFFLAW PREZ STOPPED: Federal Judges Thwart Trump’s Racist Plan To Undermine Census!🗽⚖️

Tara Bahrampour
Tara Bahrampour
Demographics Reporter
Washington Post

https://www.washingtonpost.com/local/social-issues/trump-census-documents/2020/09/10/6c2bdcce-f3a0-11ea-bc45-e5d48ab44b9f_story.html

By Tara Bahrampour

September 10 at 6:47 PM ET

A federal court on Thursday blocked a memorandum signed by President Trump seeking to exclude undocumented immigrants from being counted in the census for apportionment saying such action would violate the statute governing congressional apportionment.

A special three-judge panel out of New York wrote that the president’s argument that undocumented immigrants should not be counted runs afoul of a statute saying apportionment must be based on everyone who is a resident of the U.S. The judges found that all residents must be counted for apportionment purposes regardless of their legal status.

The ruling came hours after a federal judge ordered the Trump administration to produce internal documents connected to its sudden decision to end the 2020 Census count a month earlier than the Census Bureau had planned.

. . . .

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

The problem here is a barrage of frivolous, racist, unlawful conduct by the Trump regime. What if the Supremes had consistently stood up against Trump’s illegal White Nationalist agenda starting with the Travel Ban cases?

At least for now, this is a major setback for the regime’s “Dred Scottification” agenda!

PWS

09-10-20

EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!

Priscilla Alvarez
CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN

 

Trump administration puts pressure on completing deportation cases of migrant children

By Priscilla Alvarez, CNN

Updated 6:57 PM ET, Wed February 12, 2020

 

(CNN)The Trump administration is reinforcing a tight deadline for immigration cases of unaccompanied migrant children in government custody in an effort to make quicker decisions about deportation, according to an email obtained by CNN.

The message seems designed to apply pressure on immigration judges to wrap up such cases within a 60-day window that’s rarely met and falls in line with a broader effort by the administration to complete immigration cases at a faster speed.

 

Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said deadlines are “putting the judge between a rock and a hard place.”

“The only thing that can get done within 60 days is if someone wants to give up their case or go home or be deported,” Tabaddor told CNN.

 

The Executive Office for Immigration Review, which oversees the nation’s immigration court system, sent the email last month to assistant chief immigration judges, reminding them that unaccompanied children in government custody are to be considered the same as detained adults for purposes of scheduling cases.

 

While the 60-day deadline cited in the email is not new, it’s difficult to meet for cases of unaccompanied kids, in part, because of the time it takes to collect the relevant information for a child who comes to the United States alone. As a result, cases can often take months, if not years, to resolve.

 

Last year, an uptick in unaccompanied children at the US-Mexico border strained the administration’s resources. Over the course of the 2019 fiscal year, Border Patrol arrested around 76,000 unaccompanied children on the southern border, compared to 50,000 the previous fiscal year.

 

Unaccompanied children apprehended at the southern border are taken into custody by the Department of Homeland Security and referred to Health and Human Services. While in care at shelters across the country, case managers work to place a child with a sponsor in the United States, like a parent or relative.

 

Like adults and families who cross the US-Mexico border, unaccompanied children are put into immigration proceedings to determine whether they can stay in the United States.

 

The email from EOIR, dated January 30, says unaccompanied migrant children who are in the care of the government should be on a “60-day completion goal,” meaning their case is expected to be resolved within 60 days. It goes on to reference complaints received by the office of the director, but doesn’t say who issued the complaints or include a punishment for not meeting the completion goal.

 

EOIR spokeswoman Kathryn Mattingly told CNN that she could not comment on internal communications.

 

Golden McCarthy, deputy director at the Florence Immigrant and Refugee Rights Project, which works with unaccompanied migrant children, said “it does take time to reach out to” a child’s caretaker or adults in the child’s life.

 

“We all know that many times the child doesn’t necessarily have the full picture of what happened; it does take time to reach out to caretakers and adults in their lives to understand,” McCarthy said.

 

Initiatives designed to quickly process cases have cropped up before.

 

The Obama administration tried to get cases scheduled more expeditiously but deferred to the judges on the timeline thereafter, whereas the Trump administration’s move seems to be an intent to complete cases within a certain timeframe, according to Rená Cutlip-Mason, chief of Programs at the Tahirih Justice Center and a former EOIR official.

 

The Trump administration also appears to be getting cases scheduled faster. In Arizona, for example, the Florence Immigrant and Refugee Project has begun seeing kids called into immigration court earlier than they had been before.

 

In a statement submitted to the House Judiciary Committee in January, the group detailed the cases of children, one as young as 10 years old, who appeared before an immigration judge within days of arriving to the US.

 

“I think our clients and the kids we would work with are resilient,” McCarthy, the deputy director at the project, said. “But to navigate the complex immigration system is difficult for adults to do, and so to explain to a kid that they will be going to court and a judge will be asking them questions, the kids don’t typically always understand what that means.”

 

It can also complicate a child’s case since he or she may eventually move to another state to reunify with a parent or guardian, requiring the child’s case to move to an immigration court in that state.

 

Under the Trump administration, the Justice Department has rolled out a slew of other policies — such as imposing case quotas — to chip away at the nearly one million pending cases facing the immigration court system. Some of those controversial policies have resulted in immigration judges leaving the department.

In its latest budget request to Congress, the White House called for $883 million to “support 100 immigration judge teams” to ease the backlog.

 

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How to build a 1.3 million case backlog with no end in sight:  Anatomy of “Aimless Docket Reshuffling:”

  • 2014: Obama Administration “prioritizes” unaccompanied minors, throwing existing dockets into chaos;
  • 2017: Trump Administration “deprioritizes” unaccompanied minors, creating more docket chaos;
  • 2020: Trump Administration “reprioritizes” unaccompanied minors, creating more docket chaos;
  • Result:
    • Unfairness to unaccompanied minors rushed through the system without due process;
    • Unfairness to long-pending cases continuously “shuffled off to Buffalo:”
    • Gross inconvenience to the public;
    • Demoralized judges whose dockets are being manipulated by unqualified bureaucrats for political reasons;
    • Growing backlogs with no rational plan for resolving them in the foreseeable future.

This reminds me of my very first posting on immigratoncourtside.com – from Dec. 27, 2016 —

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

By Paul Wickham Schmidt

They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.

I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”

Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.

Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.

For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.

Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.

To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.

Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”

Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.

The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied

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children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.

Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.

Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.

It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.

The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.

Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather

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than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.

Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.

The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.

The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.

4

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Tragically, as a nation, we have learned nothing over the past more than three years. Things have actually gotten much, much worse as we have unwisely and unconscionably entrusted the administration of our laws to a cruel, corrupt, scofflaw regime that sees inflicting pain, suffering, and even death on children and other vulnerable seekers of justice as an “end in an of itself.” They actually brag about their dishonesty, racism, selfishness, contempt for human decency, and “crimes against humanity.”

So far, they have gotten away nearly “Scot-free” with not only bullying and picking on vulnerable children and refugee families but with diminishing the humanity of each of us who put up with the horrors of an authoritarian neo-fascist state.

History will, however, remember who stood up for humanity in this dark hour and who instead sided with and enabled the forces of evil, willful ignorance, and darkness overtaking our wounded democracy.

Due Process Forever; Child Abuse & Gratuitous Cruelty, Never.

 

PWS

02-13-20

 

 

CONFRONTING THE “AMERICAN STAR CHAMBER” — Innovation Law Lab, SPLC, CLINIC, & Others Force Article III Courts To Face Their Judicial Complicity In Allowing EOIR’s “Asylum Free Zones” & Other Human Rights Atrocities To Operate Under Their Noses

Tess Hellgren
Tress Hellgren
Staff Attorney/Fellow
Innovation Law Lab

My friend Tess Hellgren, Staff Attorney/Justice Catalyst Legal Fellow @ Innovation Law Lab reports:

 

Hi all,

 

As some of you are already aware, I am very pleased to share that Innovation Law Lab and the Southern Poverty Law Center filed a lawsuit this morning challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.  More information is available below and at http://innovationlawlab.org/faircourts/.

 

I would like to thank all of you again for participating in our IJ roundtable and sharing your experiences for our report on the immigration court system (you will see a reference to it in our press release below). The insights we gained over the course of that report were vital in helping us identify and understand the problems in the immigration courts under the current administration.

 

Sincerely,

 

Tess

 

 

FOR IMMEDIATE RELEASE

December 18, 2019

 

Contact:
Marion Steinfels, marionsteinfels@gmail.com / 202-557-0430

Ramon Valdez, ramon@innovationlawlab.org / 971-238-1804
Immigration Advocates File Major Lawsuit Challenging

Weaponization of the Nation’s Immigration Court System

Advocates Launch Immigration Court Watch App to Ensure

Greater Accountability, Transparency in Courts

 

WASHINGTON, DC – The Southern Poverty Law Center (SPLC), Innovation Law Lab (Law Lab),  Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC) and Santa Fe Dreamers Project (SFDP) have filed a federal lawsuit challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.

 

“Under the leadership of President Trump and the attorney general, the immigration court system has become fixated on the goal of producing deportations, not adjudications,” said Stephen Manning, executive director of Innovation Law Lab. “The system is riddled with policies that undermine the work of legal service providers and set asylum seekers up to lose without a fair hearing of their case.”

 

The complaint outlines pervasive dysfunction and bias within the immigration court system, including:

 

  • Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.
  • The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.
  • The Enforcement Metrics Policy, implemented last year, which gives judges a personal financial stake in every case they decide and pushes them to deny more cases more quickly.
  • The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, often giving families inadequate time to find an attorney and prepare for their hearings.

 

“The immigration courts make life-and-death decisions every day for vulnerable people seeking asylum – people who depend on a functioning court system to protect them from persecution, torture, and death,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “While prior administrations have turned a blind eye to the dysfunction, the Trump administration has actively weaponized the courts, with devastating results for asylum seekers and the organizations that represent them.”

 

The lawsuit was filed on behalf of six legal service providers whose work for asylum seekers has been badly impaired as a result of the unjust immigration court system.

 

“As the political rhetoric surrounding immigrants has become sharper, we’ve noticed a decline in the treatment our clients receive in immigration court,” said Linda Corchado, Director of Legal Services, Las Americas Immigrant Advocacy Center. “While asylum seekers are entitled to a full and fair hearing, their proceedings are too often rushed, and judges deny our requests for time to properly prepare their cases and collect and translate crucial evidence from across the world.”

 

In addition to filing on behalf of their own organizations, plaintiffs include Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC) and Santa Fe Dreamers Project (SFDP).

 

The complaint can be viewed here and here: http://innovationlawlab.org/faircourts.

 

In an effort to ensure greater transparency and accountability in the nation’s immigration courts, Innovation Law Lab also announced the full launch of an Immigration CourtWatch app, which enables court observers to record and upload information on the conduct of immigration judges.

 

The new tool allows data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic bias and other unlawful court practices. This data can be used to bolster policy recommendations, along with advocacy and legal strategies.

 

Advocates, attorneys and other court watchers are encouraged to download and access the app available here: http://innovationlawlab.org/courtwatch.

In June, Law Lab and SPLC released a report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, on the failure of the immigration court system to fulfill the constitutional and statutory promise of fair and impartial case-by-case review. The report can be accessed here: The Attorney General’s Judges:  How the U.S. Immigration Courts Became a Deportation Tool.

###

 

The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org and follow us on social media: Southern Poverty Law Center on Facebook and @splcenter on Twitter.  

 

Innovation Law Lab, based in Portland, Oregon with projects around the country and in Mexico, is a nonprofit organization that harnesses technology, lawyers, and activists to advance immigrant justice. For more information, visit www.innovationlawlab.org.

 

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

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

 

And, here’s a statement in support of this much-needed litigation action from my distinguished Round Table colleague Judge (Ret.) Ilyce Shugall:

 

These were my remarks during the press conference:

 

I am Ilyce Shugall, a former immigration judge.  I became an IJ in 9/2017 and resigned in 3/2019.  I was sworn in by then-Chief IJ Mary Beth Keller.  She has also resigned.  I swore to uphold the constitution at my investiture.  When the administration made it impossible to continue to do so, I resigned.

 

I defended immigrants in immigration court for 18 years before I became an immigration judge, so I understood the inherent problems and limitations on judicial independence in a court system housed inside the Department of Justice, a prosecuting arm of the executive branch.  However, as Melissa said, this administration’s policies have entirely eroded what independence and legitimacy remained in the immigration court system.

 

As an immigration judge, I watched independence being stripped from the judge corps on a regular basis.  The attorney general ended administrative closure, taking away a vital docketing tool from the judges, while simultaneously contributing to the court’s ever-growing backlog.  The attorney general also significantly limited the judges’ ability to grant continuances.  Then, the attorney general and EOIR director implemented performance metrics which required judges complete 700 cases per year and created time limits on the adjudication of cases.  And this was only the beginning.  These policies have had a drastic impact on those appearing in immigration court, particularly those fleeing horrific violence who have been preventing from effectively presenting their cases.

 

New policies, memoranda, and regulations are being published regularly by this administration. Each one, an attack on the system, and each one with the goal to eliminate due process and expedite deportations.  I hope this lawsuit will eventually lead to a truly independent immigration court system, where judges can uphold their oaths and therefore immigrants receive the due process they are entitled and deserve.

 

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

 

Every one of us in America is entitled to Due Process; every day, vulnerable asylum applicants and other migrants are being dehumanized and denied their Due Process rights by an ridiculously unconstitutional Immigration “Court” system operating with the complicity of life tenured Federal Judges, all the way up to the Supremes, who are failing to live up to their oaths of office.

 

The grotesque, constant, open abuse of the legal and constitutional rights of the most vulnerable among us threatens the rights of each of us, including those individuals responsible for putting the Trump regime in power, maintaining it, and the Article III judges who are failing to stand up to the regime’s unconstitutional cruelty and mocking of our the rule of law. Enough! It’s long past time for the Article IIIs to live up to their responsibilities and stand up for the victims of tyranny!

The case is

LAS AMERICAS IMMIGRANT ADVOCACY CENTER, et. al v. TRUMP  (D OR)

Due Process Forever; Complicit Courts Never!

 

PWS

 

12-18-19

 

EUGENE ROBINSON @ WASHPOST: KID KILLERS ON THE LOOSE: “Sixteen-year-old Carlos Gregorio Hernandez Vasquez died horribly and needlessly. The Trump administration’s policy of deliberate, punishing cruelty toward Latin American migrants killed him.”

Eugene Robinson
Eugene Robinson
Opinion Columnist
Washington Post

https://www.washingtonpost.com/opinions/the-trump-administration-is-to-blame-for-a-teen-migrants-death/2019/12/09/569ae0e8-1ac6-11ea-8d58-5ac3600967a1_story.html

Sixteen-year-old Carlos Gregorio Hernandez Vasquez died horribly and needlessly. The Trump administration’s policy of deliberate, punishing cruelty toward Latin American migrants killed him.

That is the only conclusion to be drawn from a shocking report by the nonprofit newsroom ProPublica about Hernandez’s death in May at a U.S. Border Patrol station in Texas. I assume the agents and health-care workers who should have given Hernandez lifesaving attention are decent human beings, not monsters. But they work within an intentionally monstrous system that assigned no value to a young Guatemalan boy’s life.

President Trump’s racist and xenophobic immigration policies are not grounds for impeachment; rather, they are an urgent reason to defeat him in the coming election. But at least six migrant children, including Hernandez, have died in federal custody on Trump’s watch. Somebody should be held accountable. Somebody should go to jail.

Hernandez died of influenza and neglect.

He had crossed the Rio Grande without documents with a group of migrants who were almost immediately apprehended by the Border Patrol. In keeping with administration policy, he was separated from his adult sister and processed at a notoriously overcrowded holding facility in McAllen, Tex., where a nurse practitioner found he had a temperature of 103. She diagnosed him with the flu and said he should be taken to a hospital if his condition worsened.

Instead, worried he might infect others at the McAllen center, officials moved him to a Border Patrol station in nearby Weslaco and locked him in a cell. That was on the afternoon of May 19. By the following morning, Hernandez was dead.

Border Patrol logs show that agents checked on Hernandez several times that night. But ProPublica obtained cellblock video showing that “the only way . . . officials could have missed Carlos’ crisis is that they weren’t looking.”

The video “shows Carlos writhing for at least 25 minutes on the floor and a concrete bench,” ProPublica reported. “It shows him staggering to the toilet and collapsing on the floor, where he remained in the same position for the next four and a half hours.”

Customs and Border Protection, the parent agency of the Border Patrol, claimed that Hernandez’s lifeless body was discovered by agents doing a morning check. But the video shows, according to ProPublica, that it was Hernandez’s cellmate who sent up the alarm.

“On the video, the cellmate can be seen waking up and groggily walking to the toilet, where Carlos was lying in a pool of blood on the floor. He [the roommate] gestures for help at the cell door. Only then do agents enter the cell and discover that Carlos had died during the night.”

Let that sink in for a moment. A 16-year-old boy has obviously fallen ill and has a soaring fever. Instead of seeking medical care for him, agents of the United States government — acting in your name and mine — leave him to die on the cold concrete floor of a detention cell.

Hernandez’s death implies more than the apparent negligence of a few overworked Border Patrol agents. It indicts a whole system designed by the Trump administration to deter would-be migrants and asylum seekers by punishing those who do make the journey.

In Hernandez’s case, the fatal punishment was meted out illegally. He had been in custody for six days when he died, but the Border Patrol is only supposed to hold children for 72 hours, at most, before transferring them to the Department of Health and Human Services.

The Trump administration instituted a shockingly inhumane policy of separating migrant parents from their children, who in many cases were sent hundreds of miles away. Thousands of children were warehoused in cages, like animals. Toddlers and infants were absurdly expected to represent themselves at immigration hearings whose nature they could not begin to understand.

It is true that officials have had to deal with a flood of migrants who overwhelmed border facilities and personnel. But the Trump administration responded to the surge not with compassion but with purposeful callousness. It is horrific that six migrant children are known to have died in Customs and Border Protection custody since September 2018. It is even worse when you realize there were no such deaths, not a single one, during the eight years of the Obama administration.

According to ProPublica’s report, Carlos Gregorio Hernandez Vasquez was a bright and engaging boy who captained his school’s soccer team in the village of San Jose del Rodeo. The Border Patrol assigned him the alien identification number A203665141. His body was shipped home for burial.

Read more from Eugene Robinson’s archive, follow him on Twitter or subscribe to his updates on Facebook.

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

So why are racist White Nationalist policies that kill kids and then cover up “OK?” Why are Kelly, Nielsen, “Big Mac With Lies,” “Gonzo Apocalypto,” and others responsible for human rights violations running around making big bucks off their misconduct, giving speeches as if they were “normal” former senior executives, and even running for public office rather than facing charges for their misconduct? Others like Chief Toady Billy Barr and “Cooch Cooch” remain in office while spreading their authoritarian lies and attacking our democratic institutions.

And what about complicit Federal Appellate Judges and Supreme Court Justices who have let Due Process, fundamental fairness, and human decency die while looking the other way?

Human rights criminals like Trump & Miller need plenty of “go along to get along” accomplices to carry out their abuse.

Thanks, Eugene, for speaking out when so many others in privileged positions of supposed responsibility have been so cowardly and complicit in the face of tyranny that intends to destroy our democracy and that has already undermined our humanity.

Where’s the outrage!

Due Process Forever!

PWS

12-11-19

FRESH CLAIMS OF CHILD ABUSE BY DHS IN YOUR “NEW AMERICAN GULAG” – Ever Wonder Why YOUR Tax Dollars Are Being Used To Fund What Medical Professionals Say Is An Inherently Abusive & Potentially Permanently Damaging “Kiddie Gulag?” – And, In Cases Like This, The Alleged Abuse Is Actually Individualized & Beyond the “Regular Damage” Intentionally Inflicted By The Trump DHS, Abetted By Complicit Courts!

Amanda Holpuch
Amanda Holpuch
Reporter
The Guardian

 

https://www.theguardian.com/us-news/2019/oct/25/texas-immigration-detention-guard-assault-child-claims?CMP=Share_iOSApp_Other

 

Amanda Holpuch reports for The Guardian:

 

A private prison guard physically assaulted a five-year-old boy at an immigration detention center in Texas, according to a complaint filed with the Department of Homeland Security (DHS).

She raised her niece like a daughter. Then the US government separated them at the border

 

Read more

Advocates for the boy and his mother expect the family to be deported on Friday and asked the US government to halt the deportation to investigate the alleged assault. The advocates also said the family, who are anonymous for safety reasons, face imminent harm or death in their home country of Honduras.

The alleged assault occurred in late September, when the boy was playing with a guard employed by the private prison company CoreCivic who had played with the boy before.

The five-year-old tried to give the guard a high-five, but accidentally hit him instead, angering the guard, according to a complaint seen by the Guardian. The guard then allegedly grabbed the boy’s wrist “very hard” and would not let go.

“The boy’s mother told the guard to let go and tried to pull her son’s hand away, but the guard kept holding on,” according to the complaint. “He finally released the boy and threatened to punish him if he hit him again.”

The complaint said the boy’s hand was swollen and bruised and he was treated with pain medication and ice at the South Texas family residential center in Dilley, in a remote part of the state about 100 miles from the US-Mexico border.

The Dilley detention center has been controversial since it opened in 2014. Dilley can hold 2,400 people, the most of any family detention center in the country, and in March 2019 held at least 15 babies under one year old.

“Since the assault, the boy is afraid of male officials at the jail, goes to the bathroom in his pants, bites his nails until they bleed, and does not want to play, sleep, eat, or bathe,” the complaint said.

The Guardian contacted US Immigration and Customs Enforcement (Ice), the homeland security agency which oversees immigration detention, and CoreCivic for comment, but they had not provided a response at the time of publication.

Katy Murdza, advocacy manager for the Dilley Pro Bono Project, which sends volunteers into the Dilley detention center to help families, met with the mother on Wednesday.

Murdza said the mother is fearful of her imminent deportation and is upset about what happened to her son because she had little power to protect him.

“She was unable to prevent someone from hurting her child and while she has tried to report it, she hasn’t received any information on what the results are, so she still does not have control of whether the detention center let that staff member back in,” Murdza said.

“When people are detained and it’s hidden from the public, these sorts of things happen and there are probably many other cases that we have never learned about that could be similar to this,” Murdza added.

The American Academy of Pediatrics said in March 2017 that no migrant child in the custody of their parent should ever be detained because the conditions could harm or retraumatize them.

The US government can release asylum-seeking families in the US while they wait for their cases to be heard in court, but Donald Trump’s administration favors expanding detention and has tried to extend how long children can be held in detention centers.

Katie Shepherd, national advocacy counsel with the American Immigration Council’s Immigration Justice Campaign, filed the complaint on Thursday with the DHS watchdog, the office of the inspector general, and with its office for civil rights and civil liberties.

“The government has a long history demonstrating it’s not capable of holding people in their custody responsibly and certainly not children who require special protections and safeguards,” Shepherd said. “They require a different environment, not one where guards are going to be physically abusing them.”

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

Ever wonder how things might be different if Article III Judges’ children and grandchildren were being treated this way?

 

Please think about situations like this the next time you hear sleazy folks like Kelly, Nielsen, or “Big Mac With Lies,”and other former “Trump toadies” tout their “high-level executive experience” and how “proud” they were of their law enforcement initiatives at DHS and other parts of the Trump kakistocracy! What’s the relationship between abusing children and real law enforcement or protecting our national security? None!

 

Outrageously, these former Trump human rights abusers not only have escaped legal and moral accountability for their knowing and intentional human rights abuses, but they have the audacity to publicly attempt to “leverage” their experience as abusers into “big bucks gigs” in the private sector. How disgusting can it get.

 

Here’s Professor (and ImmigrationProf Blog guru) Bill O. Hing’s “spot on” description of the “despicable John Kelly:”

 

 

Despicable John Kelly – Profits from Detention of Children

By Immigration Prof

 Share

I was recently reminded of how John Kelly, former DHS Secretary and former White House Chief of Staff, is now on the board of Caliburn International: the conglomerate that runs detention facilities for migrant children. He is despicable. This was reported in May:

Former White House Chief of Staff John Kelly can now count on a second line of income.

In addition to his attempt at scoring paid speaking gigs, Kelly has now joined the board of Caliburn International, the company has confirmed to CBS News. Caliburn is the parent company of Comprehensive Health Services, which operates four massive for-profit shelters that have government contracts to house unaccompanied migrant children.

Kelly’s new job first became apparent when protesters gathered outside Comprehensive Health Services’ Homestead, Florida facility last month — it’s the biggest unaccompanied migrant child detention center in the country. They, along with a local TV station, spotted Kelly enter the facility, and CBS News later confirmed his affiliation. Read more..

When Kelly was DHS secretary, he began the implementation of Trump’s anti-immigrant agenda in the early stages of the administration. Julianne Hing reported on Kelly’s record at DHS on the eve of becoming chief of staff for Trump.

Read here…

bh

October 20, 2019

 

Apparently, Kelly’s USG pension as a retired 4-star General wasn’t enough to support him in the style to which he aspired (perhaps after rubbing shoulders with the Trump family and its circle of grifters). So, he found it necessary to supplement his income off the misery of families and children in the “New American Gulag” he helped establish.

I had accurately predicted that Kelly wouldn’t leave his “service” to Trump with his reputation intact. Nobody does, except those with no reputation to start with.

 

Trump runs a kakistocracy. The private sector should treat the steady stream of spineless senior officials fleeing the Trump Circus accordingly.

Or compare the “achievements” of horrible frauds like these guys, who abused their time in the service of Trump by betraying our country’s most fundamental values, with that of a real American hero like the late Congressman Elijah Cummings (D-MD) who was eulogized today. As President Obama said, “he was ‘honorable’ long before he was elected!”

 

PWS

10-25-19

 

 

 

 

U.S. IMMIGRATION JUDGE LEE O’CONNOR EXPOSES MASSIVE DHS ILLEGALITY & FRAUD IN IMPLEMENTATION OF SO-CALLED MIGRANT PROTECTION PROTOCOLS (“LET ‘EM DIE IN MEXICO”) – “Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.”

U.S. IMMIGRATION JUDGE LEE O’CONNOR EXPOSES MASSIVE DHS ILLEGALITY & FRAUD IN IMPLEMENTATION OF SO-CALLED MIGRANT PROTECTION PROTOCOLS (“LET ‘EM DIE IN MEXICO”) – “Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.”

Here’s Judge O’Connor’s decision, dated 09-17-19:

9-17-19 IJ termination MPP

Here’s key language from Judge O’Connor’s decision:

Respondents appeared for a hearing on September 9, 2019, with counsel and were granted a continuance for attorney preparation. The court reset the case to September 17, 2019. Respondents moved to terminate removal proceedings on the ground that they are not arriving aliens and were therefore not properly subjected to the MPP program. The court concludes thatDHS has not proven its fundamental allegation that respondents are arriving aliens and that DHS has not acted properly in subjecting aliens who were apprehended within the United States to the MPP program. Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.

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

So this is the “legacy” of “Powerful Woman” Kirstjen Nielsen and her successor “Big Mac With Lies:” Massive violations of legal and human rights of asylum seekers!

And, don’t forget the complicit Article III Judges of the 9th Circuit in Innovation Law Lab v. McAleenan whose mindless “green-lighting” of this abusive and clearly illegal program is responsible for daily mockeries of the very U.S. laws they were sworn to uphold as well as continuing human misery.

It also shows:

  • The great potential of an independent Article I U.S. Immigration Court to stop DHS abuses in their tracks, at an early point in time (this would also save time and public money now being squandered on various illegal, ill-advised, and always inhumane “enforcement schemes and gimmicks”);
  • The potential of an independent Immigration Court with a true merit selection system for judges;
  • The value of effective representation of asylum seekers (which is either impeded or actively blocked by DHS and EOIR these days);
  • The corruption of leadership at DHS and DOJ and the lawyers representing them in court in defending the indefensible;
  • The dangers of abuses in a system run by a prejudiced Executive with no meaningful oversight and outside the public eye;
  • That while some Article III Judges have gone “belly up” in the face of massive illegality and abuses of our system, others like Judge O’Connor, even without the benefit of life tenure, have courageously continued to stand tall for Due Process and the legal rights of migrants to fair treatment under the law.

The current immigration system and those administering it in an unlawful and unconstitutional manner is a national disgrace! Something to remember when Kelly, Nielsen, “Big Mac With Lies,” and other senior officials of DHS and DOJ try to “reinvent” themselves in the private sector and disguise or disavow their truly disgusting record of subservience to Trump and the massive human rights violations for which they are morally responsible.

Due Process Forever; “Malicious Incompetence” Never!

 

PWS

 

10-25-19

 

 

AILA CONDEMNS BARR’S LATEST COWARDLY EXTRALEGAL ATTACK ON VULNERABLE ASYLUM SEEKERS — “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum.”

Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA 2nd Vice President

 

AILA: AG’s Decision Ignores Precedent and Is the Latest Attempt to Restrict Asylum

AILA Doc. No. 19072905 | Dated July 29, 2019

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org
Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC — On July 29, 2019, Attorney General (AG) William Barr issued a precedent decision in Matter of L-E-A- and announced that in his view, families cannot be considered a particular social group (and thus grounds for asylum) unless they are recognized by society as such.

AILA Second Vice President Jeremy McKinney stated, “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum. Courts, like the 4th Circuit Court of Appeals in Richmond, Virginia, have voluminous case law directly contradicting the Attorney General’s decision today.

 

“The impact of AG Barr’s decision, along with the other decisions issued by his immediate predecessors on asylum and the nation’s immigration courts, cannot be overstated. Last summer, the AG issued Matter of A-B- attempting to end the category of persecution – essentially restricting domestic violence victims and other victims of crimes perpetrated by private, non-government actors from their ability to qualify for asylum. Today, the AG’s office further attempts to restrict asylum by targeting a new category of asylum seekers: families. This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution. This decision unnecessarily makes asylum harder. Clearly, our nation needs an independent immigration court system separate from the Department of Justice.”

 

Cite as AILA Doc. No. 19072905.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

 

American Immigration Lawyers Association

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

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

 

 

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

Cowardice is the very definition of when those in power whose job and solemn duty is to protect and vindicate the rights of others, particularly the most vulnerable among us like refugees, instead grossly abuse their power by picking on them, bullying them, and abusing them. Whether or not Barr and the other White Nationalist restrictionists in the Trump Administration are committing actual crimes under U.S. law, they are certainly guilty of “crimes against humanity” in any normal sense of the word.

 

It is for legal scholars, historians, and moral philosophers to insure that Trump, Pence, Barr, Sessions, “Cooch Cooch,” “Big Mac With Lies,” Miller, Nielsen, Kelly, Homan, Morgan, and others who have enthusiastically supported and enabled this debacle do not escape the negative judgements of history!

PWS

07-30-19

 

SCOFFLAWS STUFFED AGAIN: U.S. Judge Finds Trump’s “Remain In Mexico” Program Illegal – Orders Halt! – Malicious Incompetence, Illegal Gimmicks Thwarted – We Need A Government That Follows The Laws!

https://www.washingtonpost.com/immigration/federal-judge-blocks-trump-administration-program-forcing-asylum-seekers-to-remain-in-mexico-while-awaiting-court-hearings/2019/04/08/68e96048-5a42-11e9-a00e-050dc7b82693_story.html?utm_term=.137c9c2e12a3

April 8 at 5:46 PM

A federal judge on Monday blocked an experimental Trump administration policy that requires asylum seekers to wait in Mexico while their cases make their way through the immigration court system, a major blow to President Trump as border crossings have surged to their highest point in more than a decade.

U.S. District Court Judge Richard Seeborg in San Francisco enjoined the Migrant Protection Protocols policy days after outgoing Homeland Security Secretary Kirstjen Nielsen pledged to expand the program. The policy began in January.

Trump has justified blocking asylum seekers from entering the United States by claiming that many asylum seekers are trying to carry out a scam — that they are coached to file false asylum claims knowing that they will be released into the country because of a lack of detention bed space. The administration had hoped to keep more asylum seekers in Mexico — and off U.S. soil — while they await court hearings on their claims.

Migrants who reach U.S. soil — including areas that are outside U.S. border barriers but inside U.S. territory — have the legal right to seek asylum. They generally are either held in detention facilities to await rulings in their cases or are released into the United States.

The policy had been one idea to stem the flow of migrants into the country, but Seeborg said his order ending the policy will take effect at 5 p.m. on April 12. Within two days, he said, the 11 migrants named in the lawsuit must be allowed to enter the United States, and the administration may not implement or expand the program.

The American Civil Liberties Union, one of the groups that filed the lawsuit, hailed the ruling as a “very important decision” on an “unpredecented” attempt to block asylum seekers from setting foot on U.S. soil.

“What it will mean is that nobody else can be sent to Mexico,” said Judy Rabinovitz, an ACLU lawyer. “They can’t enforce this policy.”

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As I had predicted!

PWS

04-08-19

TRAC IMMIGRATION: Latest Stats Strongly Suggest That Immigration Court Bond Decisions Are At Best A “Crapshoot,” & At Worst A Farce — Factors Other Than Due Process, Fairness, & Consistent Application Of Transparent Criteria Appear To Control Freedom From So-Called “Civil” Imprisonment Without Conviction!

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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE

The chances of being granted bond at hearings before immigration judges vary markedly by nationality, as do required bond amounts. Court hearing locations also appear to influence bond outcomes even for the same nationality.

Currently less than half of detained immigrants with bond hearings were granted bond – 48 percent during FY 2018, and 43 percent thus far during FY 2019. The median bond amount was $7,500 in FY 2018, and rose to $8,000 during the first two months of FY 2019.

Differences among nationalities are striking. Currently more than three out of every four individuals from India or Nepal, for example, were granted bond, while only between 11 and 15 percent of immigrants from Cuba received a favorable ruling. And those from China were less likely to receive a favorable ruling than are those from India or Nepal.

The median bond for immigrants from the Philippines was just $4,000, while those from Bangladesh were required to post $10,000-$12,000. These and many other findings are based on a detailed analysis of court records covering all of FY 2018 and the first two months of FY 2019 by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The bond hearing-by-bond hearing records were obtained by TRAC under the Freedom of Information Act from the Executive Office for Immigration Review (EOIR).

A brand new free web query tool now allows the public for the first time to examine in detail the bond experience by hearing location for any nationality. The new app covers outcomes in Immigration Court bond hearings as well as subsequent case dispositions after detained immigrants are granted bond.

To read the full report, go to:

https://trac.syr.edu/immigration/reports/545/

To examine the underlying results for any nationality, go to:

https://trac.syr.edu/phptools/immigration/bond/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through November 2018. For an index to the full list of TRAC’s immigration tools go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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The U.S. Immigration Court System has deep Constitutional Due Process, fundamental fairness, and quality control issues that are being intentionally swept under the carpet by the Trump Administration in an attempt to just “move ’em out, to hell with the law, Constitution, or human rights.” And, while the Article IIIs occasionally step in, they are basically complicit in allowing this parody of justice affecting life and freedom to go on without honest, effective, professional judicial administration and accountability. Don’t get me started on Congress which created and then abandoned this dysfunctional mess that they mindlessly allow to continue in a “death spiral” that threatens to take the integrity of the entire U.S. justice system down with it.

These problems can be solved! But, not as long as politicos in the DOJ are involved and improperly and unethically using the Immigration Courts as an adjunct of ICE Enforcement.

And, remember that ability to be released on bond pending removal proceedings is often “outcome determinative.” Those free on bond can usually get attorneys, prepare and document a case for relief, and have a decent chance of prevailing.  Those forced to proceed in DHS detention (a/k/a the “New American Gulag”) are usually “shot like fish in a barrel” — with little chance of understanding, preparing, or presenting a case.

Then, there is the intentionally and inherently coercive effect of detention in the DHS’s substandard, sometimes life threatening, “Gulag.”  Detainees too often are treated like statistics rather than human beings with rights. That’s how politicos “jack up” removal statistics. But, it bears little resemblance to Due Process or justice in any independent court system in America.

That’s why we need the “New Due Process Army” fighting every day to make the unkept, now openly disregarded, promise of “guaranteeing fairness and Due Process to all” of those appearing in our Immigration Courts a reality rather than a sick joke!

PWS

02-13-19

THE FURTHER EXPLOITS OF “OUR GANG” – 5th Circuit Grants Oral Argument In Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ)!

“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:

Good morning, all:  The Fifth Circuit has granted oral argument for the week of February 4 in Canterero-Lagos v. Whitaker the appeal of the BIA’s decision Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ).  Our group filed an amicus brief in that case (there was a second amicus brief on behalf of legal service providers).  Lead counsel emphasized the importance of the amicus briefs in convincing the Circuit court to grant oral argument, which OIL opposed, arguing that the case was not of particular interest and that W-Y-C- did not constitute a change in existing law.

Best, Jeff

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Thanks Jeff for passing this along! And special thanks to all of our retired colleagues who make this effort so special and effective and to the amazingly talented and dedicated pro bono advocates who help us be “heard in court.”

Even from our angle, we can see that “great representation makes a difference.” If it makes that much of a difference to retired Immigration Judges trying to be “heard,” just imagine what a difference it makes to those actually appearing in U.S. Immigration Court to literally “plead for their lives!”

That’s why this Administration’s “strategy” of using waiting lists, illegal orders, inhumane detention, family separation, expedited removal, skewed credible fear interviews, and so-called “review before an Immigration Judge” where counsel, even if present, isn’t even allow to speak, to prevent competent representation and fair presentation of claims is such an outrageous abuse of Due Process!

We are still in the early stages of fully exposing the jaw-dropping extent of these abuses to Article III Judges, Congress, and the public! And, we (and our successors and allies in the NDPA) won’t rest until the U.S. Government is finally forced to live up to its cynically abandoned promise of making U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all!”

No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”

PWS

12-14-18