😰ASYLUM: “PROGRAMMED FOR FAILURE” — “Refugee Roulette Three” (“RR3”) Confirm What Many Of Us Said Right Off The Bat About Biden Administration’s Tragically Botched Stab At Asylum Reform!

The “Notorious RR3:”

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-Nogales, Associate Dean for Academic Affairs
I. Herman Stern Research Professor
Temple Law
PHOTO: Temple Law

 

Here’s the abstract of the latest “practical scholarship” from the RR3:  Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogles, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,” which will appear in the Howard Law Journal:

The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem

Howard Law Journal, Vol. 66, No. 3, 2023

59 Pages Posted:

Philip G. Schrag

Georgetown University Law Center

Jaya Ramji-Nogales

Temple University – James E. Beasley School of Law

Andrew I. Schoenholtz

Georgetown University Law Center

Date Written: September 29, 2022

Abstract

In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.

This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.

Keywords: Asylum, Asylum adjudication, Asylum process, Expedited removal, Immigration, Legal ethics, Due process, Administrative law

JEL Classification: K39

Suggested Citation:

Schrag, Philip G. and Ramji-Nogales, Jaya and Schoenholtz, Andrew I., The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem (September 29, 2022). Howard Law Journal, Vol. 66, No. 3, 2023, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233655

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

Four Horsemen
New regulations pasted on old anti-asylum, anti-lawyer, anti-due-process attitudes and relying on an ever more dysfunctional EOIR, now at war with the asylum bar, won’t cut it! 
Albrecht Dürer, Public domain, via Wikimedia Commons

You can download the complete article from SSRN at the above link. 

Expect the Biden Administration to “blow off” the suggestions for improvement at the end of the article. They seem to glory in “tuning out” the views of practical experts who know how to fix the broken asylum adjudication system. 

As I predicted when these regulations first came out, they were “programmed for failure.”

https://immigrationcourtside.com/2022/06/06/⚖%EF%B8%8F🗽-human-rights-first-files-public-comments-pointing-out-due-process-eroding-flaws-in-biden-administrations-new-asylum-regulations/

Due-process-denying, representation-killing, arbitrary time limits imposed from above have been tried by Administration after Administration. They have always failed and will continue to do so. So, why are they a key part of the Administration’s so-called “reforms?”

Rather than addressing the representation crisis in a rational, cooperative manner, the Biden Administration’s EOIR farce has driven a huge wedge between the clueless policy makers who operate in the “twilight zone” and the NGO, pro bono, and low bono legal community that they need to succeed on immigration, human rights, and racial justice. See, e.g., https://immigrationcourtside.com/2022/09/30/%f0%9f%86%98-sos-from-round-tables-%f0%9f%9b%a1-%e2%9a%94%ef%b8%8f-judge-sue-roy-complete-due-rocess-meltdown-eoir-newark-as-garlands-leadership-continues-to-fail-%e2%98%a0/

Compare the article’s discussion of the importance of representation and the practical and ethical problems caused by the new regulations with the reality of the “nutsos” ways EOIR is mis-treating attorneys currently trying to practice before the Immigration Courts!

Additionally, the unwarranted, yet largely self-fulfilling assumption by the Biden Administration that only 15% of asylum applications would be granted at the “Asylum Office stage” show why this program was designed to fail by the wrong officials. For the system to meaningfully address the Immigration Court asylum backlog, the grant rate would have to be multiples of that — probably at least 50%.

That’s a realistic projection, given the well-documented, atrocious human rights conditions in most “sending countries” and the current artificial limitations on grants imposed by bad precedents and flawed, biased, or incompetent adjudications. When I was at the Arlington Immigration Court from 2003-16, a significant majority of the “referrals” from the Asylum Office were granted asylum, withholding of removal, or CAT protection, often with concurrence or only token opposition by ICE. That suggests that there is a huge unrealized potential for many more timely asylum grants at the Asylum Office. But, success will never be achieved with the current “anti-asylum, afraid to correctly and fairly implement refugee law gang” in charge — committed to retaining the bad attitudes and repeating the mistakes of the past!

Hanging over the whole disaster is the “uncomfortable truth” that I’ve been shouting:

  • The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.

  • There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.

  • There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.

  • Detention continues to be misused as a “deterrent” to legal claims and “punishment” for asserting  them. 

  • Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border. 

  • Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.

Indeed, this entire “reform effort” is essentially “upside down.” It’s a “designed to fail” attempt to avoid the broken and malfunctioning Immigration Court system without dealing with the REAL problem: EOIR!

Without the necessary progressive personnel and structural reforms at Garland’s EOIR (“clean house” of unqualified, under-qualified, or misplaced administrators and judges from past Administrations), the cultural changes (“out with the anti-asylum, anti-immigrant, racially challenged, too often misogynistic, EOIR culture”) it would bring, and most of all, the substantive changes to align asylum law with due process, best practices, and the generous interpretations that were foreshadowed by the Refugee Act of 1`980 but have been intentionally suppressed by politicos of both parties, there will be neither justice nor stability in our asylum and immigration systems, nor will there be equal justice for all, including racial justice, in America! 

Even my esteemed “RR3” friends understate the debilitating effects of the ever-worsening dysfunction at EOIR and Garland’s failure of leadership on due process and human rights!

Perhaps the most telling statement in their article is this: “Asylum officers are more highly trained in asylum adjudication than immigration judges . . . .”  Why, on earth, would that be? 

Why isn’t the BIA led and comprised of internationally-respected asylum experts like Schrag, Schoenholtz, Ramji-Nogales, and others like them? Why aren’t all Immigration Judges drawn from the ranks of universally-respected “practical scholars” in asylum and human rights?  Plenty of them are out here! Why aren’t they on the bench? Why is the Biden Administration running a “D-Team Judiciary” at EOIR rather than “the world’s best administrative tribunals, guaranteeing fairness and due process for all” as EOIR was once envisioned? What’s the excuse for lousy training at EOIR when top-flight “modulated” asylum training is available from expert sources like Professor Michele Pistone’s innovative VIISTA Villanova program? What’s the excuse for the colossal EOIR failure that threatens lives and our democracy on a daily basis? Why aren’t alarm bells going off at the White House about Garland’s failed stewardship at EOIR?

Reforming the asylum system, starting with EOIR, could also potentially have big societal and economic benefits for America. Asylees gain legal status, can work, get in line for green cards, eventually become citizens, and realize their full potential as productive members of our society. Not incidentally, they also become regular taxpayers and can help bolster essential enterprises and infrastructure improvements.

For example, just yesterday the Portland (ME) Press Herald featured an article about the critical, chronic shortage of workers in Maine. https://www.pressherald.com/2022/10/02/how-can-maine-solve-its-workforce-crisis/ Why isn’t the Biden Administration working with Maine authorities, NGOs, and economic development groups to “fast track” asylum approvals for those who might be persuaded to resettle in Maine to take advantage of these economic opportunities, for everyone’s benefit? Mainers also are suffering from a shortage of affordable housing. I’ll bet that with a little “seed money,” there are enterprising, skilled groups of potential asylees who could help build and maintain affordable housing for communities in need, in Maine and elsewhere in the U.S. Why are they instead “rotting at the border” or being aimlessly “orbited” around America by nativist GOP governors trying to score political points with their White Nationalist base?

By adopting the nativists’ dehumanizing mis-characterization of asylum seekers as a “problem” to be measured in “numbers,” deterred, and held at bay, the Administration is missing a golden opportunity to achieve some much-needed “win-wins.” Why run bone-headed “built to fail, haste makes waste” asylum pilot programs in a few cities rather than trying things that might work to everyone’s advantage, as I have described above?

At a time when many in America are finally learning the truth about our disgraceful failure to offer refuge to Jews during the period leading up to the Holocaust from the Ken Burns documentary, we (our at least some Americans) appear to be committed to making the same mistakes again. We should not undervalue the lives and contributions of refugees because of systemic or structural boas against certain groups!

Claiming to “reform” the U.S. refugee and asylum system without dealing with the ongoing, worsening, disasterous dysfunction at EOIR is a fool’s errand. The way to make the system work more efficiently is to grant the large number of deserving asylum cases in a timely, practical, manner driven by due process, best practices, and best interpretations of asylum law. Unless and until those in charge act on this truth, the awful mess at EOIR will continue to be an existential threat to democracy!

🇺🇸 Due Process Forever!

PWS

10-03-22

🗽🧑🏻‍⚖️ BIA APPELLATE JUDGES LIEBOWITZ, BROWN, MANUEL WITH STRONG REVERSAL OF HIGH-DENYING IJ IN FIFTH — Nexis, PSG — Roberto Blum Reports!  — “This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent,” Says Says Brooklyn Law Associate Dean Stacey Caplow!

 

Roberto writes:

Hello Judge,

Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.

P.S. you can see this news article:  https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ ,  from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

Best,

DPF!

RB 

pastedGraphic.png

Here’s the panel decision:

BIA APPEAL REMAND (Redacted)

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

Thanks, Roberto.

As Roberto says:

This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!

Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?

I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?

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! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!

The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.

It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?

Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers! 

Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?

These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”

When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.

The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.

Stacy Caplow
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law
Brooklyn Law
PHOTO: Brooklyn Law website

As Dean Caplow cogently points out:

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/the-pathos-of-patel-v-garland

While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!

As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!

There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”

Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence). All of us who care about the future of American justice should be asking why he isn’t doing his job!

🇺🇸 Due Process Forever!

PWS

05-31-22

THE GIBSON REPORT — 06-21-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group! — Lots Of Interesting Items Under “Top News,” Some Good, Some Not So Much!

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

TOP NEWS

 

The Justice Department Overturns Policy That Limited Asylum For Survivors Of Violence

NPR: In a pair of decisions announced Wednesday, Attorney General Merrick Garland is vacating several controversial legal rulings issued by his predecessors — in effect, restoring the possibility of asylum protections for women fleeing from domestic violence in other countries, and families targeted by violent gangs.

 

Advocates mark DACA’s 9th anniversary, urge Congress to act

AP: A pending federal court case in Texas is challenging whether the program’s creation was legal. If the challenge is successful, it could end protections, adding urgency to those pressing Congress for a more lasting solution.

 

White House eyes ending migrant family expulsion by July 31

Axios: The policy known as Title 42 has resulted in tens of thousands of migrant family members, including asylum seekers, being sent away — as well as thousands of kids then separating from their families to cross into the United States alone.

 

U.S. speeds visas for vulnerable Afghans as pullout looms, but Congress wants more

Reuters: As the U.S. military completes its withdrawal from Afghanistan in the coming weeks, the Biden administration says it is adding staff to hurry up the visa process for Afghans who worked for the U.S. government and want to flee to avoid Taliban reprisals.

 

NYC’s Latino Leaders Split Over the Best Mayoral Candidate for Immigrants

CityLimits: As they continue on the campaign trail, contenders of both parties who remain in the race speak openly about citizens’ concerns, such as crime, police reform, affordable housing, education, health, jobs and the Big Apple’s recovery from the COVID-19 pandemic. Latino voters, however, still feel that they have not heard concrete proposals regarding immigrants.

 

ICE Discussed Punishing Immigrant Advocates For Peaceful Protests

Intercept: Internal ICE records and emails, as well as a deposition by an ICE officer in a court case, show the agency referring to an advocacy group as a “known adversary” and closely surveilling the immigration and civil rights activists’ activities, both online and in person.

 

Desperate for Covid Care, Undocumented Immigrants Resort to Unproven Drugs

NYT: Health and consumer protection agencies have repeatedly warned that several of these treatments, as well as vitamin infusions and expensive injections of “peptide therapies” sold at alternative wellness clinics for more than $1,000, are not supported by reliable scientific evidence.

 

Biden Signals Big Changes to Legal Immigration and Asylum Law with Spring Regulatory Agenda

AIC: Although not every proposed rule put on the agenda will end up being finalized, the agenda signals an administration’s priorities and its goals for pursuing changes to our immigration system through executive action.

 

LITIGATION/CASELAW/RULES/MEMOS

 

DOJ Vacates Matter of A-B- and Matter of A-B-II

DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) AILA Doc. No. 21061639

 

DOJ Vacates Matter of L-E-A- II

DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)AILA Doc. No. 21061640

 

OIL Memo: Impact of Attorney General decisions in Matter of L-E-A-and Matter of A-B-

AAG: Please review any pending cases that may be affected by the Attorney General’s vacatur of L-E-A-II, A-B-I,  and A-B-II and take appropriate steps in light of that development, including seeking remands in appropriate cases to allow the Board to reconsider asylum claims based on this change in the law.

 

CA2 Certifies Question of Whether New York Petit Larceny Constitutes a CIMT to State Court of Appeals

The court certified to New York State Court of Appeals the question of whether an intent to “appropriate” property requires an intent to deprive the owner of property permanently or under circumstances where their property rights are substantially eroded. (Ferreiras Veloz v. Garland, 6/7/21) AILA Doc. No. 21061635

 

3rd Circ. Won’t Halt Deportation Of Jamaican Woman

Law360: A split Third Circuit panel on Thursday refused to halt deportation proceedings for a Jamaican woman who pled guilty to defrauding the elderly in a lottery scam, ruling in a precedential decision that she didn’t prove she was likely to face retribution from the scam’s ringleader if sent back to her native country.

 

CA5 Says Government May Revoke Citizenship of Former Salvadoran Military Officer Involved in Extrajudicial Killings

The court held that although the defendant, a former military officer, refused to shoot civilians during the Salvadorian Civil War, the fact that he “assisted” and “participated in the commission of” extrajudicial killings permitted his denaturalization. (United States v. Vasquez, 6/11/21) AILA Doc. No. 21061737

 

CA6 Says IJs and BIA Have Authority to Grant Administrative Closure to Allow Noncitizens to Apply for Provisional Unlawful Presence Waiver

The court concluded that 8 CFR §212.7(e)(4)(iii), together with 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. (Garcia-DeLeon v. Garland, 6/4/21) AILA Doc. No. 21061634

 

CA6 Holds That Petitioner Failed to Show Prejudice Due to Immigration Court’s Procedural Error of Improper Change of Venue

The court found that while the Memphis Immigration Court violated procedural rules in transferring the petitioner’s hearing to the Louisville Immigration Court, that violation was a procedural question relating to venue, not jurisdiction to hear the case. (Tobias-Chaves v. Garland, 6/8/21) AILA Doc. No. 21061636

 

CA9 Remands Case Involving Defective NTA Under Pereira in Light of Recent Supreme Court Decision

The court granted the petition for review and remanded the case to the BIA in light of the U.S. Supreme Court’s recent decision in Niz-Chavez v. Garland. (Lorenzo Lopez v. Garland, 6/8/21) AILA Doc. No. 21061643

 

CA9 Reverses Denial of Deferral of Removal Where BIA Improperly Engaged in De Novo Review

The court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error, and found that the record established that the petitioner had met her burden to show it was more likely than not she would be tortured if removed to Mexico. (Soto-Soto v. Garland, 6/11/21) AILA Doc. No. 21061644

 

10th Circ. Says Samoan Citizenship Question Not For Courts

Law360: A split Tenth Circuit panel on Tuesday reversed a Utah federal judge’s order finding that American Samoans are birthright U.S. citizens, holding that the issue belongs in the hands of Congress, not the courts.

 

11th Circ. Says Rules Require New Review Of Asylum Bid

Law360: In a decision that established several court precedents, the Eleventh Circuit has revived a Sri Lankan man’s bid for asylum, ruling that both an immigration judge and the Board of Immigration Appeals failed to properly reconsider his asylum application after allowing him to stay in the United States.

 

DC Circ. Says Asylum Policies Beyond Its Purview

Law360: The D.C. Circuit ruled Friday that it lacks jurisdiction to revive asylum-seekers’ challenge to how border officers carry out a policy that requires migrants to seek protections in other countries they pass en route to the U.S.

 

Resources Related to Lawsuit Challenging New DHS Asylum EAD Rules

AILA: DHS filed a motion for partial summary judgment in district court on all the plaintiffs’ claims regarding the 30-day timeline repeal rule, which was published on June 22, 2020.

 

DHS Asks Judge Not To Impose Asylum Work Permit Deadline

Law360: The Biden administration has asked a Maryland federal judge to keep intact a Trump-era asylum work rule that gives the U.S. Department of Homeland Security more time to process work permits, saying the increased flow of asylum-seekers justifies the change.

 

Migrants Fault USCIS Interpretation Of 10-Year Entry Ban

Law360: Three Mexican nationals have asked a Colorado federal court to declare that U.S. Citizenship and Immigration Services unlawfully denied their green card applications by finding them inadmissible under a 10-year bar on reentering the United States up to 20 years after they left the country.

 

USCIS Updates Policy Manual on the Bona Fide Determination Process for Victims of Qualifying Crimes and EADs and Deferred Action for Certain Petitioners

USCIS provided guidance in the Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitioners. Comments and feedback is due by July 14, 2021. AILA Doc. No. 21061433

 

DHS and DOS Issue Joint Statement on Expansion of Access to the Central American Minors Program

DHS and DOS issued a joint statement on the second phase of the Central American Minors (CAM) program’s reopening. Eligibility now includes legal guardians and parents and U.S.-based parents or legal guardians with pending asylum application or pending U visa petition filed before 5/15/21. AILA Doc. No. 21061631

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, June 21, 2021

Sunday, June 20, 2021

Saturday, June 19, 2021

Friday, June 18, 2021

Thursday, June 17, 2021

Wednesday, June 16, 2021

Tuesday, June 15, 2021

Monday, June 14, 2021

 

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Thanks Elizabeth! As previously noted, I remain skeptical of Biden Administration plans to “reform” asylum law without bringing in the progressive human rights experts who can handle the job! 

Most needed “reforms” — like bringing in progressive judges, replacing the BIA, bringing in progressive managers and executives, slashing the largely self-created EOIR backlog, working with NGOs to provide universal representation to asylum seekers and other vulnerable individuals, eliminating unnecessary detention, issuing positive precedents to guide IJs and Asylum Officers, bringing on more Asylum Officers and offering them better training (see, e.g., VIISTA @ Villanova), restoring Administrative Closing, implementing e-filing at EOIR, expanding the Central American Minors Program and other refugee programs in Central America, and many others are “hiding in plain sight.” 

The “blueprints” are already about there — in bulk! All that’s missing is the dynamic new progressive leadership to implement them and insure compliance. 

Also, as I’ve pointed out before, no Administration in history has had the benefit of so much empirical data, practical scholarship, and “ready for prime time” workable solutions for such well-documented and glaring problems. The asylum and EOIR “fixes” are both highly doable and can produce immediate positive results with more to follow! 

But, not necessarily the way the Biden Administration is going about it, with far too many of those needed to turn “rhetoric into reality” still on sidelines in the private sector. In the meantime, folks who have already proved beyond a reasonable doubt that they can’t fix the system remain in key positions.

For Pete’s sake, several of my Georgetown Law students rattled off some of these solutions in class yesterday, and asked me why nobody was working on them. I told them I couldn’t figure out why the Biden Administration was so “slow on the uptake” with so many resources and experts out here in the private sector!

One of my most obvious ideas — hire my three colleagues, Georgetown Professors Phil Schrag, Andy Schoenholtz, and Temple Associate Dean Jaya Ramji-Nogales who recently wrote “instant immigration classic” The End of Asylum and earlier wrote the classic “bad government” expose Refugee Roulette — on a six month consulting contract to come in and fix EOIR and the Asylum Office.  

It’s not so much regulatory reform that’s needed (although to be sure improvements can be made), but rather bringing in progressive leadership and better judges in key positions at DHS, DOJ, and EOIR to insure that due process is maximized, best practices are instituted, and recalcitrant personnel still committed to the Trump/Miller White Nationalist agenda are placed in other jobs where they can’t overtly damage our justice system.

Not “rocket science!” 🚀 But, it’s not going to be solved by a “regulatory agenda” either! 

🇺🇸Due Process Forever!

PWS

06-23-21

🆘 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

Temple Law Professor & Immigration Superstar Jaya Ramji-Nogales Is March 2017 ABA Journal Headliner!

http://www.abajournal.com/magazine/article/female_first_chairs

Wow! I opened my March 2017 ABA Journal and told my wife, Cathy, “Hey, I know her. It’s Jaya!” Spectacular picture of a brilliant lawyer, teacher, clinician, advocate, humanitarian, role mode, and just all-around great human being!

For those of you who don’t know her, Jaya was a CALS Asylum Clinic Faculty Fellow working with Professors Andy Schoenholtz and Phil Schrag at Georgetown. Together, they wrote the “instant classic” Refugee Roulette, the seminal work on inconsistencies in U.S. asylum adjudication. And, according to the latest report about the Atlanta Immigration Court, that problem continues to fester.

http://wp.me/p8eeJm-qB

Jaya and her CALS Clinic students also appeared before me at the Arlington Immigration Court (prior to my appointment as an Adjunct Professor of Law at Georgetown which required me to recuse myself from all CALS cases).

The ABA article involving Jaya is “Female First Chairs” by Stephanie Francis Ward. Here’s a quote from Jaya:

“Drawing such attention to the issue also may be helping improve those results. In November, Liebenberg was one of two women appointed as lead counsel in a multidistrict litigation antitrust matter involving the antibiotic doxycycline. Presiding over the case, U.S. District Judge Cynthia Rufe of the Eastern District of Pennsylvania also appointed a woman as the defense’s lead counsel.

“We thought [multidistrict representation] was an important piece of the puzzle. These are high-profile cases. They bring in a lot of money and there’s very few women who get the appointments,” says Jaya Ramji-Nogales, a law professor at Temple University’s Beasley School of Law who is overseeing the MDL survey.

“Basically, these surveys document a phenomena that everyone knows is happening,” she says. “There are social norms that dictate how a woman can ask for things which don’t constrain men.”

There’s a hope that releasing more surveys as part of the ABF/ABA effort will keep attention on the issue of bias against women leading trials.”

Reads the full article at the top link. Congratulations Jaya! You are continuing to make a difference and are an inspiration to all of us!

PWS

03/04/17