"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Hill: DACA was put in place as a temporary stopgap in 2012, giving the right to work and study, and deferral from potential deportation, to undocumented immigrants who arrived in the country as minors before 2007… Only a quarter of 2022 undocumented graduates would be eligible for DACA, making it the first graduating class since the policy’s been in place to have a majority of post-DACA undocumented graduates.
Law360: The U.S. Senate on Thursday voted down a resolution under the Congressional Review Act that could have overturned President Joe Biden’s policy vesting asylum officers with greater power over asylum. See also Biden prepares asylum overhaul at border, but court challenges loom.
WGBH: In a letter sent Thursday to the Office of the Inspector General, the delegation wrote they’re concerned over a report that only 15.5% of asylum applicants reviewed by the Boston asylum office between 2015 to 2020 were approved, which is roughly half of the national average of 28%. This is the second-lowest in the nation after the New York asylum office.
The City: With only days left in the legislative session, Albany lawmakers are pushing to put regulations for a largely unregulated immigration bail bond industry, notorious for literally shackling clients with crippling debt and bulky ankle monitors.
AIC: While the data is a small sample size, it paints a clear picture of why detention is so harmful, counter-productive, and arbitrary. For example, 52% were complaints about quality of life/living conditions. The next top complaints were about medical issues. The third category were about abuse & assault (legal access issues came in fourth).
Law360: A coalition of immigration and technology advocacy groups urged Amazon on Tuesday not to provide web hosting services for the U.S. Department of Homeland Security’s biometric information database, citing concerns about the project’s implications for civil liberties and privacy rights.
Harvard Business Review: Ran Abramitzky, a professor at Stanford University, and Leah Boustan, a professor at Princeton, looked at decades of data to understand the real impact that immigrants and their descendants have on America today. Their findings dispel several modern-day myths and suggest that not just political but also corporate leaders need to push for more rational rhetoric and policies.
WBEZ: These challenges are not isolated to the walls of Sullivan. With a record 100 million people displaced around the world, including 3 million Afghans, and the war in Ukraine adding to that tally every day, the Rogers Park school stands as an example of the kinds of challenges and transformations unfolding in schools and communities across the globe.
Law360: The Fifth Circuit is poised to consider the legality of a deportation relief program for immigrants brought to the U.S. as children. As oral arguments come up, Law360 takes a look at what’s happened thus far and what could happen in and outside the courts.
Law360: A Third Circuit panel ruled 2-1 in a precedential decision Thursday that a Dominican man convicted of endangering the welfare of a child could be deported because that crime qualifies as child abuse.
Courtside: Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided.
ACLU: Nine months after the fall of Kabul to the Taliban, USCIS’s abandonment of the humanitarian parole process of Afghans has left the plaintiffs stranded and in danger. After months of waiting, they have received either denials or no responses to their applications. One plaintiff applied for six family members, but tragically lost three of them while awaiting decisions on their applications for humanitarian parole.
Law360: The Biden administration asked a D.C. federal court on Tuesday to undo an order to speedily process green card applications for thousands of Afghan and Iraqi translators, saying the plan is no longer feasible due to chaos abroad and bureaucratic dysfunction at home.
AIC: The case before Mexico’s Supreme Court involved three indigenous Mexican citizens. Immigration officials detained the three siblings due to their appearance and limited proficiency in Spanish. They were held for eight days where the 18-year-old brother was tortured until he signed a document indicating he was from Guatemala, even though he could not read Spanish.
Chugh: As a result of a lawsuit, the United States Citizenship and Immigration Services (USCIS) intends to no longer force certain adjustment of status applicants to leave the United States during their period of inadmissibility. Additionally, USCIS will not reject adjustment of status applications if an applicant was in the United States during the period of inadmissibility without a waiver. The new policy interpretation is still being finalized by the Department of Homeland Security and new USCIS guidance is expected soon.
Law360: A coalition of immigration and technology advocacy groups urged Amazon on Tuesday not to provide web hosting services for the U.S. Department of Homeland Security’s biometric information database, citing concerns about the project’s implications for civil liberties and privacy rights.
USCIS: U.S. Citizenship and Immigration Services reminds the public that we offer immigration services that may help people affected by unforeseen circumstances, including the shooting in Uvalde, Texas.
AILA: Following the USCIS temporary final rule increasing the automatic extension period for EADs, USCIS created the EAD Automatic Extension Calculator to assist employers and employees with determining the EAD expiration date for eligible employees.
AILA: DHS notice stating that the Secretary directed the Homeland Security Advisory Council to establish a subcommittee which will provide findings and recommendations on how DHS can improve its customer experience and service delivery.
AIC: Thirteen people waiting to become U.S. citizens filed a lawsuit challenging U.S. Citizenship and Immigration Services’ unreasonable delays and failure to process U.S. naturalization applications filed in 2020.
LexisNexis: Here are links to two May 21, 2022 CBP Title 42 guidance documents stemming from the Huisha Huisha v. Mayorkas (27 F.4th 718, CADC 2022) litigation. They went into effect at 12:01 a.m. (EDT) on May 23, 2022.
Huisha-Huisha Screening Monitoring: This form is intended to facilitate fact-gathering by advocates who encounter families improperly subject to Title 42 on or after May 23, 2022, due to CBP’s failure to conduct adequate screening to determine whether they fear persecution or torture, as required by Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022).
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Professor Leah Pratt Boustan Economist Princeton University PHOTO: Princeton Website
LEAH BOUSTAN: I think that we’re seeing some of the same anti-immigrant rhetoric today than we’ve seen in the past US history. So we were interested in comparing immigrants that are coming to the U.S. today from all around the world to what we think of as the Ellis Island generation a century ago that faced a lot of anti-immigrant sentiment at the time. But now when we look back with hindsight on that generation, we have a very different view, a nostalgic view that sees those immigrants as contributing to society, building the economy. So we wanted to know are the immigrants that the U.S. is welcoming today on the same path and on the same trajectory as the past?
Honestly, what we find here really surprised both of us because we’ve heard all of the worries and concerns that people all across the aisle, I think, are expressing about immigrants today. That they come from poor countries. That it takes them a while to move up the ladder. So we were really surprised to see this really commonality between the Ellis Island generation and immigrants today. We end up seeing in the data that immigrants from Europe 100 years ago, and immigrants from Asia and Latin America today look like they’re on such a similar trajectory. Despite so many differences between the past and present, we see really a common immigrant story.
Check out the article from Harvard Business Review highlighted by Elizabeth above!
Efiling is not permitted for cases with a preexisting paper file, but all new cases moving forward require efiling with ECAS.
Once a case is fully ECAS, you do not need to serve ICE separately. However, you still need to submit a certificate of service that lists ECAS as the means of service. eService/mail can still be used on paper files. eService is the only method of filing for PD requests.
Also, EOIR apparently has not come up with a system for filing motions to substitute counsel in ECAS. The system physically will not let you file a new primary E-28 if there already is an attorney, and you cannot file a motion without an E-28. The workaround so far has been to file a non-primary E-28 and then to ask the court to change it to primary. Hopefully, EOIR will fix this soon.
Updated Legal Assistant Directories for NYC (attached)
Reuters: The Biden administration will place hundreds of migrants caught at the U.S.-Mexico border on house arrest in the coming weeks as it seeks cheaper alternatives to immigration detention, according to a notice to lawmakers and a U.S. Department of Homeland Security (DHS) official. A 120-day pilot program will be launched in Houston and Baltimore, with 100-200 single adults enrolled in each location, according to the notice, which was sent by U.S. Immigration and Customs Enforcement (ICE) and reviewed by Reuters. See also Immigrant Rights Organizations Call on Biden to Stop Expansion of Surveillance and End the Immigration Detention System as a Whole.
TRAC: As of the end of January 2022, the pace of Immigration Court work continues to lag as a result of the pandemic. There have been not only fewer case completions, but the average time required to dispose of each case has doubled since before the pandemic began.
LAA Weekly: Valentine’s Day has been strategically selected for the “Day Without Immigrants” protest, as it is a day where an abundance of consumer spending occurs, through labor that is often carried out by immigrants.
NYT: These migrants were instructed to register with Immigrations and Customs Enforcement within 60 days to complete the process the border officials started. But in some parts of the country, local ICE offices were overwhelmed and unable to give them appointments. So the Haitian family and other new arrivals have spent months trying in vain to check in with ICE and initiate their court cases.
AP: The new statement unveiled Wednesday by Citizenship and Immigration Services Director Ur Jaddou is symbolic but somewhat restores previous language after the agency removed a reference in 2018 to the U.S. being a “nation of immigrants.”
Law360: A Washington federal judge has ruled that a Salvadoran citizen’s U.S. naturalization application was properly denied because of her admission that she distributes marijuana as co-owner of a state-licensed dispensary.
Law360: The U.S. Department of Justice’s Executive Office for Immigration Review apologized on Tuesday to an attorney after asking her to delete tweets about immigration court hearings for people enrolled in the controversial “Remain in Mexico” program.
WaPo: A patchwork of federal aid kept many families afloat during the pandemic, but families with undocumented parents did not qualify for most of it, including unemployment insurance, the stimulus payments, Medicaid and food stamps.
LITIGATION/CASELAW/RULES/MEMOS
AO issues NOID for Afghan Who Worked for U.S.
Boston AO: A NOID from the asylum office stated that an individual who worked for the U.S. government as a mechanic had not demonstrated a fear of future persecution based on his imputed political opinion. The AO held there was insufficient evidence the Taliban was or would become aware of his imputed political option. The AO also stated the Taliban does not have the capability to persecute all former employees of the U.S. and the applicant had not demonstrated similarly situated people were being targeted. Counsel has submitted a detailed rebuttal with testimony from a US military official, and the applicant’s mother was granted asylum by a different officer.
AILA: A federal district court vacated the final rules “Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications” and “Asylum Application, Interview, and Employment Authorization for Applicants.” (AsylumWorks v. Mayorkas, 2/7/22)
NYLAG: Under the settlement, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October 2022 and will be phased in over several years.
Law360: The Second Circuit on Wednesday granted a Nigerian man’s petition for review of a Board of Immigration Appeals order that denied him asylum, finding that the agency made several legal and procedural errors and did not adequately explain its reasons.
Law360: The federal government properly charged a Nigerian man as inadmissible to the U.S. rather than removable, because his entry to the country on parole constituted an arrival despite his previous admission, the Third Circuit ruled Friday.
Lexis: We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed pre-waitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist.
Law360: The Ninth Circuit invalidated the subsection of a law that makes it a crime to encourage unlawful immigration, ruling Thursday it is overbroad and covers speech that is protected by the First Amendment.
Law360: The Board of Immigration Appeals need only to consider the possibility — not the reasonableness — of an immigrant’s safe relocation back to their home region when weighing protections under the Convention Against Torture, the Ninth Circuit ruled Wednesday.
Law360: A New Jersey federal judge signed off Wednesday on a class action settlement that would prevent the U.S. Citizenship and Immigration Services from refusing to place young immigrants on the path to a green card based on Garden State family court findings.
Law360: U.S. Customs and Border Protection is marking the entry records of certain foreign executives’ spouses to show that they are immediately eligible to work in the U.S. without going through the monthslong process of obtaining a work permit.
AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.
AILA: EOIR updated its Operation Status website with information clarifying that alternate filing locations are designated for the purpose of filing emergency motions and explaining how it will treat other filings if a court is closed.
AILA: USCIS updated policy guidance addressing VAWA petitions, specifically changing the interpretation of the requirement for shared residence. The guidance also affects use of INA 204(a)(2), implements the decisions in Da Silva v. Attorney General and Arguijo v. United States, and more.
AILA: DHS, in partnership with the Department of Veterans Affairs and Defense, launched an online center to consolidate resources for noncitizen service members, veterans, and their families, including a request form for current or former service members seeking return to the U.S. after deportation.
USCIS: We are updating our interpretation of the requirement for shared residence to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are residing or have resided with the abuser at any time in the past.
We are also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021). Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.” Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.
After two plus decades of largely wasted time, effort, and resources, EOIR finally moves into the era of E-Filing!
Elizabeth notes one of the “initial workarounds” for motions to substitute counsel. While early glitches are to be expected in any system, this one seems odd because: 1) the system has supposedly been extensively “beta tested;” and 2) motions to substitute counsel have to be one of the most common motions filed at EOIR (particularly with cases often taking many years to complete with the ever-growing 1.6 million case backlog.)
I’d be interested in getting any “practitioner feedback” on how this system (applicable only to newly filed NTAs) is working out for them. You can just put in the “comments box” for this post.
Speaking of backlog, this excellent recent study and analysis from CMS (under “Friday Feb. 11” above) certainly suggests that the majority of the “aged cases” being “warehoused” by Garland’s EOIR relate to law-abiding long-term residents who are already firmly grounded in our society and should be prime candidates for “non-priority” status and removal from the dockets.
Undocumented immigrants contribute to every aspect of the nation’s life.16 During the COVID-19 pandemic, the case for legalization has become increasingly evident to the public and policymakers due, in part, to the fact that a remarkable 74 percent of the nation’s 7.3 million undocumented workers meet DHS’s definition of essential workers (Kerwin and Warren 2020). As the nation ages and its population over age 65 exceeds that under age 15 (Chamie 2021), the need for immigrant workers will only increase. US fertility rates fell for five consecutive years prior to the COVID-19 pandemic, and the US birth rate decreased by four percent in 2020 (Barroso 2021).17
Legalization programs benefit the larger society: they “raise wages, increase consumption, create jobs, and generate additional tax revenue” (Hinojosa-Ojeda 2012, 191).18 One study has estimated that broad immigration reform legislation, including a legalization program and a flexible, rights-respecting, legal immigration system, would add $1.5 trillion to the US gross domestic product over 10 years (ibid., 176). Another study found that a legalization program would increase the productivity, earnings, and taxes paid by the legalized, resulting in increased contributions to the Social Security (SS) program, which would more than offset the SS benefits that they would receive (Kugler, Lynch and Oakford 2013).
Indeed, the data in the CMS study confirms what many of us have suspected for a long time: That deportation of many of the individuals now occupying the Immigration Court’s mind-boggling docket backlog actually would be a counterproductive “net loss” for the U.S.!
So, why are Garland and Mayorkas letting the backlog fester and ooze disorder and injustice? ☠️ Rather than using largely self-created backlogs to support more “enforcement gimmicks” purporting to lead to theforced removal of many productive members of our society, EOIR is long overdue for some form of the “Chen Markowitz Plan” in anticipation of the types of ameliorative legislation outlined in the CMS study.
Donald M. Kerwin Executive Director Center for Migration Studies — He and his friends at CMS have some great ideas on immigration and human rights backed by some of the best scholarship around! Why are Garland, Mayorkas, and others “tuning them out” while they continue to bungle immigration policy, degrade human rights, and undermine our legal system?
Garland’s disgraceful failure to put a “Progressive A-Team” in charge at EOIR continues to drag down our entire justice system.
Note that Sessions and Barr had no trouble and no hesitation installing their “Miller Time” restrictionist team at DOJ and EOIR despite almost universal outrage and protests from human rights advocates, immigration experts, and some legislators!
Why do Dems keep appointing AG’s who are too “tone deaf,” clueless, and timid to fully “leverage” the almost unlimited potential of reforming EOIR to be a font of due process, best practices, and scholarly, efficient judging?
Why do Dems prefer the equal and racial justice “disaster zone” that they have helped to create, aided, and abetted over the past two decades of abject failure and disorder at EOIR?
There is a reason why Chair Lofgren and others on the Hill are pushing for Article I! But, that in no way diminishes or excuses the failure of Garland to make available due process and best practices reforms at EOIR, including a major shakeup of “Trump holdover” judges and managers who aren’t up to the job of running a system “laser-focused” on due process and fundamental fairness!
The UW Law School launched a new center to support Wisconsin’s DREAMers, an all-encompassing term describing individuals who have lived in the United States without official lawful status since coming to the country as a minor. The Center for DREAMers was awarded a grant through the Baldwin Wisconsin Idea Endowment, a competitive grant program that fosters public engagement and the advancement of the Wisconsin Idea.
Clinical Professor and Director of the Immigrant Justice Clinic at the Law School Erin Barbato, together with Erika Rosales of the School of Education, will lead the Center for DREAMers.
Erika Rosales School of Education University of Wisconsin, Madison PHOTO: UW Law
The center will serve the approximately 11,000 DREAMers in Wisconsin, working with organizations to coordinate the provision of legal representation, mental and social services, and career and educational counseling to ease the burden of some of the uncertainty experienced by undocumented immigrants who came to the U.S. as children.
Barbato, who teaches second- and third-year law students to represent individuals in removal proceedings and with humanitarian-based immigration relief, says the center will become an important resource for the community.
“The Center for DREAMers will bring together comprehensive resources for students that have DACA in Wisconsin,” says Barbato. “Currently, no organization in Wisconsin exists that has the capacity to serve the unique educational and legal needs of DACA recipients. We hope the center will serve this population in a manner that will allow them to fulfill their potential in a state and country they call home. We are honored to have the opportunity to serve this population so they no longer have to live in fear and one day they will have equity in educational opportunities as well as citizenship.”
As a part of its community-focused approach, the center provides outreach events and support on different campus and community locations, including the South Madison Partnership. A particular focus includes outreach to DACA communities throughout the state of Wisconsin, including bi-monthly information events.
The center’s mission also aligns with the Law School’s law-in-action tradition.
“The University of Wisconsin Law School is renowned for its law-in-action approach to legal education, and the Center for DREAMers aligns with that practical approach to learning and the pursuit of equal justice,” says Dean Dan Tokaji. “We’re grateful for the Baldwin Wisconsin Idea Endowment’s support for the center and are thrilled by the opportunities this will provide for our students and the community.”
Located in the Law School’s Economic Justice Institute, the center opened in October and began providing office hours and counseling services. Clinical law students in the Immigrant Justice Clinic play an instrumental role in the center’s work, says Barbato. Under her guidance, the students provide direct representation to people with DACA in renewals and may provide representation to people with DACA who are eligible for pathways to citizenship through family, employment, or for humanitarian-based reasons.
Congratulations, Erin, my friend, on your continuing extraordinary leadership, creativity, and overwhelming commitment to achieving social justice in America. You are indeed an inspiring role model for America’s new generation of lawyers! So proud of what you and your colleagues are doing at my alma mater! Go Badgers!
On page 17, the White House report acknowledges that existing legal instruments for addressing displacement caused by climate change are limited. Encouragingly, the report advises that “the United States should endeavor to maximize their application, as appropriate” to such displaced individuals.
The report next cites both the 1951 Refugee Convention and the 1967 Protocol and their application to climate-induced displacement, referencing recent UNHCR guidance on the topic. The report then offers three examples in which climate change issues might arise in the asylum context.
First, the report recognizes that where “a government withholds or denies relief from the impacts of climate change to specific individuals who share a protected characteristic in a manner and to a degree amounting to persecution, such individuals may be eligible for refugee status.”
Secondly, the report acknowledges that “adverse impacts of climate change may affect whether an individual has a viable relocation alternative within their country or territory.” This language relates to the regulatory requirement that in order to have a well-founded fear of persecution, an asylum applicant could not avoid persecution by relocating within their country of nationality “if under all the circumstances it would be reasonable to expect the applicant to do so.”1
The applicable regulations instruct that:
adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.2
While the regulatory language is broad and non-exhaustive, the specific mention of climate change factors in the White House report is most welcome, as such circumstances might not otherwise jump out at immigration judges and asylum officers as being relevant to the relocation inquiry.
Thirdly, the White House report states that “[c]limate activists, or environmental defenders, persecuted for speaking out against government inaction on climate change may also have a plausible claim to refugee status.”
Although not specifically cited in the White House report, UNHCR issued guidance on the topic in October 2020.3 Practitioners should file both the White House report and the UNHCR guidance with EOIR and DHS in appropriate cases, as the latter clearly served as an influence for the former, and provides greater detail in its guidance.4 For instance, in discussing how climate change factors can influence internal relocation options, the UNHCR document at paragraph 12 makes clear that the “slow-onset effects of climate change, for example environmental degradation, desertification or sea level rise, initially affecting only parts of a country, may progressively affect other parts, making relocation neither relevant nor reasonable.” This detail not included in the White House report is important; it clarifies that the test for whether relocation is reasonable requires a long view, as opposed to limiting the inquiry to existing conditions, and specifically flags forms of climate change that might otherwise escape an adjudicator’s notice.
Also, in paragraph 10, the UNHCR document’s take on the White House report’s third example is somewhat broader, stating that “[a] well-founded fear of being persecuted may also arise for environmental defenders, activists or journalists, who are targeted for defending, conserving and reporting on ecosystems and resources.”5 UNHCR’s inclusion of journalists as potential targets, and its listing of “defending, conserving, and reporting” as activities which a state might lump into the category of “speaking out” and use as a basis for persecution, should be brought to the attention of adjudicators.
Given how early we are in the process of considering climate change issues in the asylum context, the above-cited language in the White House report is important, as it provides legitimacy to theories still unfamiliar to the ears of those adjudicating, reviewing, and litigating asylum claims. It is hoped that EOIR and DHS will immediately familiarize its employees who are involved in asylum adjudication with the report. And as EOIR and DHS consider next steps in developing guidance and training, it is hoped that they will consider a collaborative approach, including in the discussion those outside of government who have already given the topic a great deal of thought.6
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Notes:
8 CFR 208.13(b)(2)(ii).
Id.
UN High Commissioner for Refugees (UNHCR), Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters, 1 October 2020, https://www.refworld.org/docid/5f75f2734.html, at para. 12.
Although UNHCR’s views on interpreting the 1951 Convention and 1967 Protocol are not binding on the U.S. Immigration Courts, they have been found by the BIA to be “useful tools in construing our obligations under the Protocol.” Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 (1987).
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.
The climate crisis could cause mass displacement as land is left uninhabitable – nations have to work together to plan for this
Thu 11 Nov 2021 03.00 EST
Last modified on Thu 11 Nov 2021 03.02 EST
As scientists wrestle to predict the true impact and legacy of Cop26, one speech, given at a rally organised by Global Justice Now, insisted upon a perspective not data-driven but moral. Lumumba Di-Aping, a South Sudanese diplomat and former chief negotiator for the G77, said: “The first resolution that should be agreed in Glasgow is for annex I polluters to grant the citizens of small island developing states the right to immigration.”
It was a tactful way of putting it: annex I nations are those with special financial responsibilities in tackling the climate crisis. They have these special responsibilities because their early industrialisation created so much of the carbon burden. A more pugilistic diplomat might have said “the people who created this disaster have to offer sanctuary to those displaced by it”, but then, he wouldn’t be a diplomat.
Di-Aping went on to note article 3 of the UN Universal Declaration of Human Rights: “Everyone has the right to life, liberty and security of person.” “Small island states,” he concluded, “should not be drowned alive like Zealandia.”
. . . .
As old debates around the climate crisis and whether or not it is anthropogenic give way to consensus, new ambiguities and uncertainties are constructed around refugees: can they really be called the victims of environmental degradation? We will grapple with any other explanation – they’re actually economic migrants, or they’re the victims of civil strife, or they fell foul of a dictatorship, the one-bad-man theory of geopolitics – rather than trace these proximal causes back to their roots. Most political efforts, currently, are geared towards building a positive picture of a sustainable future; the alternative is despair or denial, neither of which are generative forces for change. A coherent, practical plan detailing the probable scale of displacement and figuring out a just distribution of the climate diaspora will look radical and unsettling.
One group is extremely comfortable on that territory, however: the far right. Steve Bannon sent a chill down the spine in 2015 when he talked about a “Camp of the Saints-type invasion into … Europe”. He made the reference again and again, until finally onlookers were forced to read the source: Jean Raspail’s racist novel of 1973, which one contemporary reviewer called “a major event … in much the same sense that Mein Kampf was a major event”. The title comes from a passage in the Book of Revelation about the coming apocalypse – civilisation collapses when the hordes arrive from the four corners of the Earth to “surround the camp of the saints and the beloved city” – and Raspail took up the idea; it was inevitable, he said, that “numberless disinherited people of the south would set sail one day for this opulent shore”.
Through Bannon and others, this idea has replicated, mutated and engulfed others, to become the “great replacement theory” of white supremacists, which Paul Mason describes in his recent book How to Stop Fascism as the toxic political view that “immigration constitutes a ‘genocide’ of the white race”. Feminists help it along by depressing the birth-rate, and cultural Marxists bring the mood music, by supporting both migrants and feminists.
Other far-right movements are sucked into the vortex of this wild but coherent theory, and yet more are spawned or shaped by it: the cosmic right (embodied in Jake Angeli, the QAnon figure in the animal-skin cap who stormed the Capitol in January, then went on hunger strike in prison because the food wasn’t organic), or the eco-minded white supremacists who make this explicit – you can be a humanitarian or an environmentalist. Choose one.
As fanciful and irrational as many far-right arguments are, they have a rat-like cunning. They find these spaces that are untenanted by mainstream debate – there will be climate refugees and they must be accommodated – and they run riot in them. Nations who ignore Lumumba Di-Aping aren’t doing anything to avert the consequences he describes: their silence merely creates an open goal for the professed enemies of a peaceful and prosperous future.
Zoe Williams is a Guardian columnist
*********
Read Zoe’s complete article at the link.
Usually White House Reports and other quasi-academic “White Papers” produced at public expense are accompanied by major press releases and momentary hoopla. Then, they are rapidly consigned to the “Dustbin of History.”
They are widely ignored by politicos and bureaucrats who all too often are pursuing policies with little or no empirical basis, but designed to appease or “fire up” some voting block or to further the institutional self-preservation upon which bureaucracies thrive, expand, and prosper, even at the expense of the well-being of the governed!
This report, however, is one that deserves to be the basis for policy action! Too bad it isn’t!
Obviously, an Administration that failed to restore existing refugee and asylum systems, continues to subject migrants to due process denying “star chambers,” thinks “die in place” is an acceptable and effective refugee policy, and wrongly views asylum as a “policy option” rather than a well-established legal and human right, is playing right into the hands of Bannon, Miller, and their 21st Century nihilist movement! It’s also an Administration that didn’t learn much from World War II and the Cold War.
And, on future inevitable and predictable forced migrations, the world isn’t going to get much leadership from a rich nation that can’t even deal fairly, generously, and efficiently with today’s largely predictable, potentially very manageable, refugee situations. Many are situations that our nation either created or played a significant role in creating. See, e.g., environmental migration.
There is actually “room at the inn” for everyone and creative ways for nations to work together to resettle refugees of all types while prospering and working together for the benefit of humanity. Sure, they contradict the nationalist myths upon which many past and current refugee and migration restrictions are based.
Clearly, the realistic, constructive, humane solutions necessary for survival aren’t going come from the racist far right! And, currently the Biden Administration’s failure to stand up for the legal, moral, and human rights of asylum seekers and other referees isn’t doing the job either! Constructive, democratic, moral leadership and courage, oh where, oh where, have you gone?
We can’t deport, imprison, prosecute, wall, threaten, mythologize, abuse, and hate our way out of forced migration situations. It’s going to take dynamic, courageous folks who can get beyond past failures and lead the way to a better future for humanity!
There are enormous downsides to border disorder, to immigration policy paralysis and to leaving the fates of more than 11 million current immigrants without any path to a secure future — even beyond the reinforcement it provides to the United States’ growing international reputation for dysfunction. No one gains by the chaos except smugglers who soak desperate migrants financially on their way north in hopes of a better life. The losers include not only the “dreamers” brought to this country as children, who must live in perpetual anxiety, but also the country as a whole, which loses the value of immigrants, skilled and otherwise, who would turbocharge entrepreneurship, create jobs and help the economy grow.
There are available solutions if Congress could overcome its horror of bipartisan compromise. The goal should be to establish a realistic annual quota of immigrant visas for Central Americans, Haitians and others desperate to reach this country who otherwise will cross the border illegally — a number that recognizes the U.S. labor market’s demand for such employees. That must be supplemented by a muscular guest worker program that enables legal border crossing for migrants who want to support families remaining in their home countries.
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Read the complete editorial at the link.
It’s worth adding that the current “border disorder” is largely the result of White Nationalist, legally defective, anti-immigrant policies of the Trump regime compounded by the failure of Mayorkas and Garland to take the obvious, available, common sense steps necessary to reopen legal border ports of entry, to make the long overdue necessary reforms to establish a fair, efficient, and generous legal asylum system at the USCIS Asylum Offices and the Immigration Courts, and to insist on the creation of a robust, functional refugee program for Latin America and the Caribbean.
None of the this is “rocket science!” 🚀 Plenty of great blueprints for administrative reforms and the potential expert leadership to implement them were “out there for the taking” at the beginning of the Biden Administration. By dawdling, tapping the wrong leaders, and continuing enforcement policies and bad judicial practices that were proven failures, the Administration predictably put itself “behind the eight-ball” in establishing order and implementing the rule of law at our borders!
Until the Biden Administration ends its disgraceful, cowardly, illegal, cruel, ineffective, and inhumane reliance on bogus “Title 42” restrictions to suspend orderly legal processing at the border, they will continue to bobble the next predictable “border crisis.” The GOP will continue to spout nativist nonsense. Desperate people will continue to do desperate things. Only a tone-deaf Administration would continue to ignore this reality!
Democrats’ push to give young undocumented Dreamers a path to citizenship violates Senate rules, according to the Senate’s parliamentarian, who dealt yet another blow on Sunday to long-stalled immigration reform efforts in Congress.
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Predictable! It’s pretty simple. Long overdue and badly needed positive immigration reform, including Dreamer relief, is dead until enough GOP nativists are removed from Congress to save our democracy!
BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice
The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.
This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.
The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.
Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!
For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.
From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!
Immigration Courts are the “living, breathing repudiation” of racial justice in America!🏴☠️
Repeatedly, Federal Courts at all levels say that foreign nationals are entitled to due process under the Fifth Amendment.
Then, they often go on to convert that to an insulting platitude by approving legal travesties and substandard performance by EOIR inflicted on migrants of color, their attorneys (if any), and their communities. Maybe, it’lls because talented Hispanic judges with actual experience representing asylum seekers and other migrants in Immigration Court are so few and far between. Maybe it’s because Garland has failed to actively recruit judges from among immigration and human rights attorneys of color and has continued to employ a flawed “insider-tilted” selection process that was designed and implemented to “slam the door” on experts from the non-governmental advocacy and academic communities.
Whatever the reason, EOIR has become the “living refutation” of the assertion that Hispanics and other communities of color are treated fairly and equally under our laws and that that race-based decision-making and jurisprudence have vanished from our legal system.
Maybe it’s time for Hispanics and their allies to stop being “tolerant of inequity and bias” and start taking a more aggressive and less compromising position on Garland’s disgraceful, disorderly, dysfunctional, non-diverse, tone-deaf Immigration Courts! Your voices are NOT being heard by those running the Star Chambers and cranking out “assembly line injustice.”
Why does the Hispanic community put up with being demeaned, dehumanized, and degraded by Garland’s “Clown Courts”🤡 and also by a Democratic Party that promised change but has delivered “same old same old” at EOIR?
Recent Supreme Court mockeries of justice show that the rights of minorities are under assault by a radically right-wing Article III Judiciary stocked with GOP appointees. The Immigration Courts, by contrast, are under the total control of the Administration and present an unparalleled opportunity for minority communities to both showcase their judicial skills and to start winning back their legal rights after four years of unrelenting assault by the White Nationalist right.
Why is this perhaps once-in-a lifetime opportunity for long overdue, radical reform of a broken, biased, and incompetent system being squandered and buried by Garland as if Stephen Miller and his cronies were still calling the shots? How many Hispanic and other lives will be sacrificed to EOIR over the next three plus years? How many attorneys of color will continue to be abused, misused, and under-appreciated by an Administration pledged to “do better?” What will be left of racial justice in America if entrusted to a DOJ that doesn’t even believe in the concept in their own court system?
Reuters: U.S. President Joe Biden on Sunday said he remained adamant about the need to create a pathway for U.S. citizenship for so-called Dreamer immigrants, but it “remains to be seen” if that will be part of a $3.5 trillion budget measure.
NBC: The public health order barring border migration, known as Title 42, has expelled back to Mexico almost 1 million immigrants trying to cross the southern border since the Trump administration put it in place in March 2020.
NPR: It’s against this backdrop that Biden is set to give remarks on Monday to the nation’s largest Latino advocacy organization, UnidosUS. But some of Biden’s supporters hope his speech is directed more broadly to the American people — particularly to swing voters who are concerned about migration yet recognize the value of immigrants in their communities, and not just his base.
AP: Supporters say the trend is crucial during a coronavirus pandemic that has left immigrants, who are disproportionately essential workers, more vulnerable to COVID-19 and as federal remedies, like an immigration overhaul or “public option” health insurance, face tough political odds.
WaPo: Fleeing gang violence in El Salvador, Nancy and her two children sought asylum in the United States. Instead, they found themselves stuck in a border camp in Matamoros, Mexico — and the U.S. immigration system. Over the course of a year, in texts, voicemails and other dispatches from Matamoros, Nancy slowly unspooled her harrowing story.
BIA: (1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.
The BIA found respondent did not submit sufficient objective evidence to support his fear of torture by the Rwandan government and that IJs and the Board lack the authority to recognize the equitable defense of laches in removal proceedings. Matter of O-R-E-, 28 I&N Dec. 330 (BIA 2021) AILA Doc. No. 21072233
Where the IJ had failed to provide a citation or reference to the record in denying the petitioner’s Convention Against Torture (CAT) claim, the court found that the IJ’s decision was not supported by substantial evidence. (Valarezo-Tirado v. Att’y Gen., 7/15/21) AILA Doc. No. 21072137
The court denied the petition for review, finding that the petitioner’s conviction in Texas for delivering cocaine under Texas Health and Safety Code §481.112 was included in the Controlled Substances Act (CSA). (Ochoa-Salgado v. Garland, 7/16/21) AILA Doc. No. 21072238
The court determined that the BIA correctly denied the petitioner’s motion to reopen, holding that the petitioner’s original removal order was not subject to being reopened because he had illegally reentered the United States pursuant to INA §241(a)(5). (Sanchez-Gonzalez v. Garland, 7/16/21) AILA Doc. No. 21072240
The court upheld the BIA’s determination that petitioner was ineligible for cancellation of removal for lacking good moral character, where he had been convicted of drunk driving, had multiple vehicle-related traffic violations, and used a fake social security card. (Meza v. Garland, 7/20/21) AILA Doc. No. 21072605
The court held that the issuance of the decision denying cancellation of removal to the petitioner by a different IJ than the one who had conducted the petitioner’s merits hearing did not violate his due process rights or the text of INA §240(c)(1)(A). (Orpinel-Robledo v. Garland, 7/19/21) AILA Doc. No. 21072331
Where the BIA had held that the petitioner was removable because his conviction for enticing a minor in violation of Iowa Code §710.10(3) constituted a “crime of child abuse,” the court granted the petition for review, vacated the BIA’s decision, and remanded. (Pah Peh v. Garland, 7/16/21) AILA Doc. No. 21072330
The court granted in part the plaintiffs’ motion to vacate its December 31, 2020, reversal of the district court’s injunction of the Healthcare Proclamation (PP 9945), and denied as moot the petition for rehearing en banc. (Doe #1, et al. v. Biden, et al., 7/16/21) AILA Doc. No. 21072334
Upholding the denial of asylum to petitioners, an Armenian family, the court held that substantial evidence supported the adverse credibility determination as to the husband based on implausibilities in the record, and as to the wife based on evasive testimony. (Lalayan v. Garland, 7/13/21) AILA Doc. No. 21072333
The court held that DOS has statutory authority to impose an in-person requirement to seek a certificate of loss of nationality (CLN), but found that the department acted arbitrarily and capriciously in denying the appellant a CLN. (Farrell v. Blinken, et al., 7/13/21) AILA Doc. No. 21072606
Law360: A California federal judge dismissed visa seekers’ legal challenge to a now-rescinded Trump-era order that blocked them from moving to the U.S. on new green cards, saying there was no longer a live controversy after the Biden White House ended the ban.
Advocates reached a settlement after challenging USCIS policy to reject applications with a blank response field. USCIS will accept the original submission date as the filing date for the applications it has identified as having rejected pursuant to the policy. (Vangala v. USCIS, 7/19/21) AILA Doc. No. 20112034
Law360: The federal government on Thursday and Friday filed for the dismissal of five visa fraud suits against Chinese researchers accused of being a part of an orchestrated program by the Chinese government to send military scientists to the U.S.
CDC notice of an order fully excepting unaccompanied children from the 10/13/20 “Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists.” The new order went into effect 7/16/21. (86 FR 38717, 7/22/21) AILA Doc. No. 21072140
DHS notice of Temporary Protected Status extension and redesignation of Somalia for 18 months, from 9/18/21 through 3/17/23. (86 FR 38744, 7/22/21) AILA Doc. No. 21072133
USCIS announced that TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela or Yemen, or individuals without nationality who last habitually resided in one of those countries, can now file their initial Form I-821, Application for Temporary Protected Status, online. AILA Doc. No. 21072138
USCIS posted statements regarding the Texas v. United States decision, stating that DHS will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. AILA Doc. No. 21072031
On June 24, 2021, USCIS extended the flexibilities it announced on March 30, 2020, for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and September 30, 2021, inclusive. AILA Doc. No. 20050133
NEW YORK, July 16 (Reuters) – A U.S. federal judge in Texas on Friday blocked new applications to a program that protects immigrants who were brought to the United States as children from deportation but said the hundreds of thousands of people already enrolled would not be affected until further court rulings.
U.S. District Judge Andrew Hanen sided with a group of states suing to end the Deferred Action for Childhood Arrivals (DACA) program, arguing it was illegally created by former President Barack Obama in 2012.
Hanen found the program violated the Administrative Procedure Act (APA) when it was created but said that since there were so many people currently enrolled in the program – nearly 650,000 – his ruling would be temporarily stayed for their cases until further court rulings in the case.
“To be clear,” the judge said, the order does not require the government to take “any immigration, deportation or criminal action against any DACA recipient.”
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Read the rest of Mica’s article at the link.
The obvious solution is legislation. But, the GOP is likely to oppose any reasonable proposal, and the Dems might not have the votes to “go it alone.”
Before the inauguration, President Biden pledged a $1.9 trillion COVID-19 relief bill. Then, hours after he entered the Oval Office, he introduced an immigration bill, The U.S. Citizenship Act of 2021, which aims to put millions of undocumented immigrants on a pathway to citizenship. At first glance, these initiatives seem unrelated; in fact, they are deeply connected. Combining them is the best way to help us battle the COVID-19 pandemic and recover from the recession. Here’s why.
In the first wave of the COVID-19 pandemic, the United States and the world over learned a lesson about who was truly essential to the economy: the home health aides and nurses who care for the sick, the grocery and delivery workers who keep our stores and kitchens stocked, and the workers at our farms and food processing plants who keep our food supply chain from collapsing. These and so many other overlooked jobs — classified as “essential and critical” by the Department of Homeland Security — hold our society together, protect us, and make our economy work.
Large numbers of these essential workers are also undocumented immigrants. Over 78 percent of immigrants without legal status work in these fields, according to a report by UCLA’s Latino Policy and Politics Initiative. They’re not just risking their lives to keep American citizens safe and help rebuild our economy, but they do so without legal protections and under the constant fear of deportation. That’s inhumane. But it’s also dangerous for Americans. With hospitalizations of COVID-19 patients surpassing 52,000, Congress must follow the lead of countries like France and give these essential workers a fast track to the citizenship they deserve.
It’s no secret that immigrants are helping to keep us all afloat. Despite being just 13 percent of the population, immigrants make up 37 percent of all home health aides and almost one third of all physicians and psychiatrists. With a very real threat of meat and poultry shortages at the beginning of the pandemic, immigrants filled more than a third of the tough food processing jobs and nearly half of all farm jobs picking our fruits and vegetables. And as parents across the country are placed in the impossible situation of balancing full-time work and parenting during a pandemic, once again immigrants help shoulder the burden, making up more than 20 percent of all childcare workers in day care centers.
And yet, despite all of this, our federal government acted as though we didn’t need these workers. As the pandemic raged, millions of immigrants were explicitly left out of the CARES Act relief efforts, as were millions of their U.S. born children and spouses who were penalized for having an unauthorized immigrant in the family. Meanwhile, the Trump Administration sought to shut the border to immigrant workers and students, all but stopped processing citizenship applications and ended asylum for people fleeing horrific violence. It also fought unsuccessfully all the way to the Supreme Court for the right to end protections for Dreamers, tens of thousands of whom are essential health care workers.
So what would an effective federal response look like?
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Read the rest of Jeremy’s article at the link for his ideas on how to join immigration reform with economic expansion.
By Geoff Bennett, Julia Ainsley and Jacob Soboroff
The Biden administration and Hill Democrats are expected later this week to release an immigration reform bill, multiple sources familiar with the planning tell NBC News.
The legislative text of the “U.S. Citizenship Act of 2021” will reflect the immigration priorities that President Joe Biden unveiled on his first day in office. His proposal includes an earned pathway to citizenship for 11 million undocumented immigrants, expands the refugee resettlement program and deploys more technology to the Southern border. There are additional protections that are being considered in the legislation, such as asylum processing in home countries for minors, expanded benefits for DREAMers and ending the public charge rule.
While previous attempts at massive immigration reform have failed under both Republican and Democratic administrations, the Biden White House has signaled support for breaking the legislation into pieces.
As a potential secondary path, lawmakers would work to pass bills legalizing farmworkers and Dreamers right away, and then move toward a more expansive overhaul. The main objective, officials and advocates say, is progress.
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Sounds like modest expectations. But, any meaningful immigration legislation would be a major achievement that has eluded the last two Administrations.
Unfortunately, based on the the GOP’s impeachment performance, it’s hard to see 60 votes for any substantive legislation in the Senate.
During his first days in office, President-elect Joe Biden plans to unveil a legislative proposal that would include a path to citizenship for 11 million immigrants in the U.S. illegally, according to activists in communication with his transition team.
By CINDY CARCAMO, ANDREA CASTILLO, MOLLY O’TOOLE
January 16, 2021
During his first days in office, President-elect Joe Biden plans to send a groundbreaking legislative package to Congress to address the long-elusive goal of immigration reform, including what’s certain to be a controversial centerpiece: a pathway to citizenship for an estimated 11 million immigrants who are in the country without legal status, according to immigrant rights activists in communication with the Biden-Harris transition team.
The bill also would provide a shorter pathway to citizenship for hundreds of thousands of people with temporary protected status and beneficiaries of Deferred Action for Childhood Arrivals who were brought to the U.S. as children, and probably also for certain front-line essential workers, vast numbers of whom are immigrants.
In a significant departure from many previous immigration bills passed under both Democratic and Republican administrations, the proposed legislation would not contain any provisions directly linking an expansion of immigration with stepped-up enforcement and security measures, said Marielena Hincapié, executive director of the National Immigration Law Center Immigrant Justice Fund, who has been consulted on the proposal by Biden staffers.
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Read the full story at the link.
This will present Judge Garland and Vanita Gupta @ DOJ with a timely, outstanding opportunity to get rid of the “EOIR Clown Show🤡,” replace it with a functioning expert judiciary 🧑🏽⚖️👨🏻⚖️⚖️ and competent judicial administrators, get the vast bulk of these cases off the largely “manufactured” backlog, and get the Immigration Courts and the BIA operating at or near “real time.”
That, in turn will give a new group of expert judges at the BIA, with practical asylum and human rights backgrounds, a chance to implement the fair, generous, consistent interpretation of asylum law intended under the Refugee Act of 1980 and to institute a fair and efficient U.S. asylum system that will serve humanity, honor and exemplify Constitutional due process, and advance our national interests.🗽🇺🇸
Should be a win-win-win for the country and refugees provided that the right, progressive, “steeped in due process and fundamental fairness” judicial talent is put in place to lead and direct the “new EOIR.” No more “Clown Show!” 🤡No more “Amateur Night at the Bijou!” 🤹 Time to give the immigration and human rights experts, a new generation of “practical scholars,” the chance to solve problems and lead the now-broken Immigration Courts to better days!
Not surprisingly, the current “Clown Show” 🤡 and “band of malicious incompetents”🦹🏿♂️ @ EOIR “management” are totally out of step — and actually mocking — the direction the Biden Administration is taking on immigration and asylum, even as their time runs out. At a minimum, that warrants immediate reassignment to jobs where they can do no further damage to the American justice system and those who rely upon it. For some who have actually aided and abetted the “human rights criminals” in the DOJ kakistocracy and squandered public resources on illegal gimmicks, further action and accountability could be necessary and appropriate down the line!
Knightess of the Round TableHon. Polly Webber US Immigration Judge (Ret.) Member Round Table of Former Immigration Judges Fiber Artist
Comments of the Round Table of Former Immigration Judges
Submitted to the House Judiciary Subcommittee on Immigration and Citizenship
Regarding the “Real Courts, Real Justice Act.”
January 3, 2021
This statement for the record is submitted by former Immigration Judges and former Appellate Immigration Judges of the Board of Immigration Appeals (BIA). Members of our group were appointed to the bench and served under different administrations of both parties over the past four decades. Drawing on our many years of collective experience, we are intimately familiar with the workings, history, and development of the Immigration Court from the 1980s up to present.
We hereby incorporate our Statement submitted to this Subcommittee on January 29, 2020, for its Hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” The statement sets forth the many ways in which the lack of safeguards in the Immigration Court system, specifically by positioning it within the Department of Justice, has resulted in extreme overreach by the executive branch over a system that historically has been the purview of Congress through its plenary power.
We applaud the efforts of Congresswoman Lofgren and the House Judiciary Subcommittee on Immigration and Citizenship for undertaking this historic task of creating an independent Immigration Court under Article 1 of the Constitution. Bringing together stakeholders and organizations with the proper expertise and foresight has resulted in a proposal with integrity and purpose, and a realistic possibility of long-needed reform.
The recognition that this Court needed to be independent from executive influence originated within the immigration judge corps as early as 1989. It took decades for the concept to mature to its current endorsement by nearly every important legal and social organization in the field, recognizing the importance of a system built on integrity and independence. Indeed, the creation of an Article 1 Immigration Court is finally a need recognized by the public at large.
The Time is Now
The Subcommittee is in a uniquely advantageous position to introduce this legislation at the inception of this historic session of Congress. There is nearly universal agreement that the whole immigration system needs a major overhaul. Beginning with the Immigration Court reflects a recognition that protection of the most vulnerable population, those appearing before the Court, should be addressed first.
The Round Table urges the Subcommittee to wrap up its due diligence and introduce this bill at the beginning of the new session. It is hoped that by submitting the bill, the Subcommittee will indicate that these issues are on its radar and the continuing executive rampages over the Court will cease.
DHS Rights of Appeal in an Article 1 Court System
Counsel to the Subcommittee specifically asked The Round Table to address whether under an Article 1 scenario the government should have the right to challenge determinations granting relief to immigrants in federal court. This question was presumably presented because under the present configuration, such appeals are disallowed. Our Round Table unanimously believes that given the independence the Court would enjoy under Article 1, both parties should have full right of appeal.
The historical inability of DHS to petition for review from Board grants of relief in part stems from the early days when Immigration Judges were still Special Inquiry Officers and the Court was part of INS, which in turn was part of DOJ. The Attorney General originally delegated only limited decision-making authority to the Board. All complex issues had to be referred to the Attorney General. INS could not appeal decisions made by AG delegates, who all worked for the same agency. Their recourse was to ask the AG to certify the appellate agency decision to himself/herself. The inability of the government to petition for review survived the reorganizations in 1983 and 2003. The difference we are seeking to make is removing the Court from the executive agency trappings. As a stand-alone Court, its parties should enjoy all the rights and duties that fall from that independence.
As INA § 242 is written, Judicial Review is limited to reviews of final orders of removal. Thus, the scope of review would need to be changed to allow the government to challenge grants of relief.
Contact with Questions or Concerns: Polly Webber, pawebber7250@gmail.com
Sincerely,
The Round Table of Former Immigration Judges
Hon. Steven Abrams, Immigration Judge, New York, Varick St., and Queens (N.Y.) Wackenhut Immigration Courts, 1997-2013
Hon. Silvia Arellano, Immigration Judge, Florence and Phoenix, 2010-2019
Hon. Terry A. Bain, Immigration Judge, New York, 1994-2019
Hon. Sarah Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012
Hon. Teofilo Chapa, Immigration Judge, Miami, 1995-2018
Hon. Jeffrey S. Chase, Immigration Judge, New York, 1995-2007 Hon. George T. Chew, Immigration Judge, New York, 1995-2017
Hon. Joan Churchill, Immigration Judge, Arlington, VA 1980-2005
Hon. Lisa Dornell, Immigration Judge, Baltimore, 1995-2019
Hon. Alison Daw, Immigration Judge, Los Angeles and San Francisco, 2006-2018
Hon. Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007
Hon. Noel Ferris, Immigration Judge, New York, 1994-2013
Hon. James R. Fujimoto, Immigration Judge, Chicago, 1990-2019
Hon. Gilbert Gembacz, Immigration Judge, Los Angeles, 1996-2008
Hon. John F. Gossart, Jr., Immigration Judge, Baltimore, 1982-2013
Hon. Paul Grussendorf, Immigration Judge, Philadelphia and San Francisco, 1997-2004
Hon. Miriam Hayward, Immigration Judge, San Francisco, 1997-2018
Hon. Charles Honeyman, Immigration Judge, Philadelphia and New York, 1995-2020
Hon. Rebecca Bowen Jamil, Immigration Judge, San Francisco, 2016-2018
Hon. William P. Joyce, Immigration Judge, Boston, 1996-2002
Hon. Carol King, Immigration Judge, San Francisco, 1995-2017
Hon. Elizabeth A. Lamb, Immigration Judge, New York, 1995-2018
Hon. Donn L. Livingston, Immigration Judge, Denver and New York, 1995-2018
Hon. Margaret McManus, Immigration Judge, New York, 1991-2018
Hon. Charles Pazar, Immigration Judge, Memphis, 1998-2017
Hon. Laura Ramirez, Immigration Judge, San Francisco, 1997-2018
Hon. John W. Richardson, Immigration Judge, Phoenix, 1990-2018
Hon. Lory D. Rosenberg, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2002
Hon. Susan G. Roy, Immigration Judge, Newark, NJ 2008-2010
Hon. Paul W. Schmidt, Chair and Appellate Immigration Judge, Board of Immigration Appeals, and Immigration Judge, Arlington, VA 1995-2016
Hon. Patricia M.B. Sheppard, Immigration Judge, Boston, 1993-2006
Hon. Ilyce S. Shugall, Judge, San Francisco, 2017-2019
Hon. Helen Sichel, Immigration Judge, New York, 1997-2020
Hon. Denise Slavin, Immigration Judge, Miami, Krome, and Baltimore, 1995-2019
Hon. Andrea Hawkins Sloan, Immigration Judge, Portland, 2010-2017
Hon. Gustavo D. Villageliu, Appellate Immigration Judge, BIA, 1995-2003
Hon. Robert D. Vinikoor, Immigration Judge, Chicago, 1984-2017
Hon. Polly A. Webber, Immigration Judge, San Francisco, 1995-2016
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Centuries of judicial experience represented here! As we say, “The
Time Is Now!”
Many thanks to Judge Polly Webber and her drafting team 🖋 for making this happen in such a timely manner!
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Jacob Soboroff reports for NBC News:
Inside the effort to provide mental health care to migrant families
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Seneca Family of Agencies provides mental health care to migrant families separated by the Trump administration. NBC News’ Jacob Soboroff reports on the obstacles faced by the nonprofit in locating families.
Jacob and his terrific NBC News colleague Julia Edwards Ainsley have been at the forefront of exposing the irreparable human carnage and lasting trauma caused by the regime’s unlawful, racist, White Nationalist immigration policies (some of which were unconscionably “greenlighted” by an immoral and irresponsible Supremes GOP majority that views themselves and their rotten to the core, inhumane, right-wing ideology as above the needless human suffering they further and encourage).
The “perps” like,”Gonzo” Sessions, Grauleiter Miller, Kirstjen Nielsen, “Big Mac With Lies” McAleenan, Noel Francisco, Rod Rosenstein, et al, walk free while the victims continue to suffer and others, like the Christ-like folks at Seneca Family of Agencies, are left to pick up the pieces! How is this “justice?”
Our national policies have truly abandoned Christ’s values of self-sacrifice, mercy, generosity in spirit and deed, courage in the face of oppression, human compassion, justice, and assistance for the most vulnerable among us under the perverted and immoral “leadership” of a man and his party without humane values or respect for truth who stand for absolutely nothing that is decent in the world.
As Americans suffer and die from the pandemic he mocked, downplayed, and mishandled; unemployed Americans are dissed and shortchanged by his party of underachieving, out of touch fat cats, liars, cowards, and truth deniers; asylum seekers needlessly suffer in squalid camps in Mexico; refugees scorned, unlawfully and immorally abandoned and abused by the world’s richest country face persecution, torture, despair, and death; and non-criminals rot in DHS’s “New American Gulag,” the immoral Grifter-in-Chief lives it up at taxpayer expense for one last Christmas at his Florida resort; fumes about a fair and square election that he lost big time; savors a rash of holiday executions; delays bipartisan COVID relief; ferments treason against our republic; and pardons a wide range of scumbags, felons, war criminals, family members, cronies, fraudsters, and other totally undeserving characters.
But, there is hope for our world at Christmas: 27 days and counting to the end of the kakistocracy, expulsion of the unqualified con-man and his motley crew of criminals and cronies, and the ascension of a real President and Vice President, Joe Biden and Kamala Harris, to lead us, and perhaps our world, out of the current mess to a kinder, brighter future. That might be the best present of all this Christmas.
