"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.
ELIE MYSTAL, Justice Correspondent, writes in The Nation:
. . . .
The opinion is thorough and well-reasoned, and Judge Du’s arguments are so obvious in retrospect that it’s kind of amazing they aren’t a staple of the immigration debate in this country. But this is where Judge Du’s background perhaps becomes important.
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Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the nation after the Vietnam War when she was 9, first to Malaysia, before eventually making its way to Alabama. She went to Berkeley for law school and was an employment lawyer in Nevada when Harry Reid and Barack Obama made her a federal district judge in 2011. I would imagine that Judge Du looks at the US immigration system with a fresh perspective, at least as compared to a person like me, who was born here and has been taught to just accept a background level of bigotry as an immutable fact of immigration law. One of the more striking parts of her opinion in this case is the section in which she calls out other courts for not doing this sooner. She essentially says that courts in other jurisdictions that have looked at Section 1326 have blindly accepted the government’s reasoning that the 1952 reauthorization cleansed the statute of its racial bias, without really looking at the 1952 Congress.
The opinion is brilliant, and I’m going to print it out so I’ll still have a copy of it when Justice Samuel Alito and the other conservatives on the Supreme Court reverse it and order Du’s opinion to be nuked from orbit. There is, practically speaking, no chance this ruling survives Supreme Court review. The high court will skate over the disparate impact analysis by saying that any person, regardless of race, who crosses the southern border will experience the same over-enforcement. Or the court will reverse the ruling of racist intent by finding, as other courts have, that the 1952 Congress did cleanse the statute of racism. Or they’ll find that the government does have a legitimate and permissible interest in discriminating against southern border crossers. After all, the Supreme Court found bigotry to be okay in Trump v. Hawaii, which upheld the Muslim ban, so finding a reason to uphold Section 1326 will be child’s play for the conservatives who like a little bigotry in their immigration rulings.
And that’s if the case even makes it to the Supreme Court, which it probably won’t. Judge Du’s ruling will first be appealed to the US Court of Appeals for the Ninth Circuit, and I could see it getting reversed there. It’s unlikely that other liberal judges will even want to open this can of worms. As I said, Judge Du relies on a disparate impact analysis, and I can think of at least three Supreme Court justices who might be in the mood to overturn disparate impact analysis altogether.
Judge Du is right about the bigotry inherent in our immigration laws, but conservatives like the bigotry and liberals will be afraid that trying to stop it will just piss off the conservatives.
But at least this opinion exists now. It’s out there, and future lawyers and judges can read it and maybe think differently about the core assumptions at the heart of our immigration system. A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.
Now, President Biden just needs to read it and go out and nominate 100 judges who agree.
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Read the full article at the link.
Biden could start by telling Garland to “redo” the U.S. Immigration Courts with well-qualified, expert, progressive judges in the “ Chief Judge Miranda Du” image!
Different backgrounds and new, “real life” perspectives! That’s why two decades of appointments of almost exclusively prosecutors and government bureaucrats, to the exclusion of human rights experts and advocates, to the Immigration Judiciary has produced such unfair and disastrous results for humanity and American law! Similar to other “blind spots” in American law, it has also created misery and cost innocent lives.
For the most part, judges of all philosophies hate being confronted with “ugly truths” about the system they are a part of. Consequently, the impetus to sweep historical truth and logical legal reasoning under the carpet when it produces uncomfortable, unpopular, and highly controversial results is overwhelming on all sides of the judicial spectrum, with the exception of a few “brave souls” like Chief Judge Du.
One of the most obvious and disgraceful of these “dodges,” is the abject failure of the Article IIIs to confront head on the clear Fifth Amendment unconstitutionality of the Executive’s “captive Immigration Courts,” particularly as currently staffed and still operating in “Miller Lite, White Nationalist mode.”
But, courageous decisions like this will be a part of our permanent legal history and come back to haunt today’s go along to get along Federal Judges, at all levels!
Our allies were given a promise, and leaving them to die will be an unforgivable act of cowardice.
BY ODAY YOUSIF JR.
AUG. 20, 2021 4:54 PM PT
Yousif Jr., J.D., is a graduate of California Western School of Law and an American Constitution Society Next Generation Leader. He lives in Rancho San Diego.
Twenty years ago, the American military marched into Afghanistan with the declared intent of hunting down Osama bin Laden and ridding the country of Taliban extremists. Led by government leaders working in bad faith, thousands of civilians and soldiers were led to their deaths for a war now universally considered a failure. However, the most vulnerable population susceptible to death in Afghanistan are those Afghan allies who risked their lives to work for the foreign forces. They served as translators and services workers and any role that required the help of the local population. Now, with the Taliban back in power, they will be the first to face death.
When local Afghans agreed to work for coalition forces, they were made a promise: work for us and we will give you a visa to the U.S. They put their safety on the line working for the military forces but did so in order to give them and their families the chance for a better future outside Afghanistan. They worked anywhere service members went, from battlefields to bases. Often, they were the people who saved the lives of the soldiers they worked for. They were not just local Afghans but critical allies necessary for the ongoing mission in their country. At that point, we had nothing short of a deep-seated moral obligation to make sure they were protected.
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Read the complete op-ed at the link.
Amen! It’s not rocket 🚀 science! But, it does require expertise, guts, and a sense of urgency!
Kevin Robillard and Rowaida Abdelaziz report for HuffPost:
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There are currently more than 17,000 Afghan nationals — as well as an estimated 53,000 of their family members — awaiting visa approval through the Special Immigrant Visas (SIV) program. The U.S. brought over approximately 2,300 Afghans as part of the program from January to July, and another 2,000 over the last week.
The White House says it has cut the time necessary to approve SIV visas in half, and has issued more than 5,500 between April and July. But advocates say it needs to move faster.
“They seem to be afraid. They seem to be operating out of fear that being a bit bolder on issues with refugees, asylees and migrants will somehow cost them politically,” said former Housing Secretary Julian Castro, who made improving the country’s refugee system a central part of his 2020 presidential campaign. “This is an area where there’s growing disappointment and impatience ― and the stirrings of real anger ― towards the administration.”
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Read the full article at the link.
Julian Castro should have been given a major role by the Biden Administration on cleaning house and straightening out the human rights disaster and dysfunction left behind by Trump and Miller. But, at this point, would he really want the job?
Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”
Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of
4 PLANCARTE SAUCEDA V. GARLAND
torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.
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Welcome to the “any reason to deny culture” at Garland’s EOIR!
In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!
Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge?Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning!
This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!
Immigration Court— Failure
BIA — Failure
OIL — Failure
Garland — Failure
And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees!
Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!
Vallerye Allyn Anderson ESQ Sacramento, CA PHOTO: LexisNexis
🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮
TRAC IMMIGRATION just released the first statistical profile of the “Dedicated Asylum Docket” created by AG Garland and his subordinates without any coherent public explanation or plan in mind. Here they are:
Stats wonks can check them out, and do their own analyses. As usual, given the haphazard nature and often questionable reliability of Government immigration statistics, it’s impossible to draw definitive conclusions.
But, here are a few things that jump out for me.
No criteria. How do you set up a program that deals with life or death decision-making without having transparent criteria about who gets placed on it and why? Easy, you work for Merrick Garland’s DOJ!
CBP in charge of dockets. Since there are no known criteria, and EOIR seems to have gone belly-up as usual, CBP, a law enforcement branch of DHS, gets to decide who is on this “Dedicated Docket.” CBP, of course, has a questionable record of competence and many issues including allegations of racism in its ranks swirling around it. It also has no known expertise or competence in establishing court dockets. Plus, letting a law enforcement agency with interests often adverse to asylum applicants, whose parent agency is a party to all Immigration Court proceedings, control dockets raises obvious ethical and conflict of interest issues.
Individuals, families, or cases? In its usual confusing manner, EOIR presents its stats in terms of individuals assigned to a docket. But, most (not necessarily all) “family units” are heard as a single “case.” According to TRAC, 4886 “individuals” on the Dedicated Docket (“DD”) represents 1,700 “family units.” That’s approximately “three individuals per family unit.” So, to get the approximate number of actual cases on a particular judge’s DD, we have to divide by three. Therefore, the number 600 assigned to a particular judge on the DD would actually represent 200 cases that require individual merits hearings. Got that? Confusing? Of course!
Who is Judge Francisco R. Pietro, and why? The short answer is that Judge Pietro is a 2019 appointee of GOP “Acting” AG Matt Whitaker, assigned to the NYC Docket and is too recent to have any “asylum grant/deny” statistics in the TRAC System. Remarkably, not to mention inexplicably, Judge Pietro has been assigned approximately 22% of the current Dedicated Docket (“DD”), or 1086 of the 4886 individuals covered by the report. (The rest of the DD is divided, very unequally, among31 other IJs).
Dividing by 3, per above, the 1086 individuals assigned to Judge P represent about 395 “actual cases.”
Now, EOIR currently demands that it’s “Assembly Line Worker/Judges” complete 700 widgets (aka, cases) per year. It also expects judges assigned to the DD to strive to complete cases in 300 days, that is 10 months.
So, completing 395 asylum cases in 10 months would only leave Judge P another 2 months to complete the other 305 cases necessary for him to make his “quota.” Something has to give here, particularly if Judge P, like the rest of us, wants to take vacations and Federal Holidays off, prepare his cases, and occasionally gets sick. Who knows, he might even need some updated asylum training, although practical aspects like that don’t appear to be part of the equation at today’s “numbers driven” EOIR.
And, let’s not forget that Judge P is a recent appointment. Recent appointees are likely to be less efficient and less inclined to grant asylum than experienced judges, according to some studies.
Therefore, to meet his quotas, keep his bureaucratic “handlers” at DOJ happy, and hang onto his job, Judge P might be left with two choices:
Cut corners big time (a traditional EOIR “built to fail” approach) which means denying lots of due process; or
Reassign part of his docket to other judges, which leads to “Aimless Docket Shuffling” and building backlog.
Theoretically, Judge P could also choose to hear asylum cases with the care required to provide due process and quality decisions, without worrying about targets and quotas. This would be a more plausible option if he were actually an independent judicial official rather than the employee of a political agency.
Also, don’t kid yourself about the “operational consequences” of assigning Judge P and others to a DD! Even assuming that he had zero cases on his docket before being assigned to the DD (highly unlikely), his unavailability for the “general docket” will place extra burdens on his judicial colleagues that will almost certainly promote more Aimless Docket Reshuffling and more backlog. This, of course, will be true for most of the other 31 judges assigned to the DD, to differing degrees, depending on their DD caseload (which ranges from 1 to 712 “individuals” for the “other 31”). “Rearranging the deck chairs on the Titanic” like this actually prevents the crew from getting more passengers off in time to save lives.
Where are the lawyers coming from? The good news is that among the “top 10 DD Judges,” (comprising 79% of the DD), four are in NYC (2d Cir.), two in Newark (3d Cir.), one in San Diego (9th Cir.), one in SF (9th Cir.), one in LA (9th Cir.), and one in Boston (1st Cir.). There are active immigration bars, including pro bono bars, in all these locations. More over, none of these Circuits is notorious for systemically mistreating asylum seekers, and one, the 9th Cir., actually has some favorable case law, although probably less so since Trump’s far-right appointees have “rebalanced” that Circuit to the right.
Yet, it’s not clear from this statistical profile, nor has EOIR revealed, what, if any, agreements might be in place with local pro bono groups in these areas to achieve universal representation within a 300 day case-completion target, without disrupting the “regular” dockets. Nor is it shown how many of those 4886 individuals now on the DD already have lawyers. These are big unanswered questions.
Why Ecuador? Individuals from Ecuador make up over 40% of the DD, even though they comprise less than 10% of the “regular” (if there is such a thing) Immigration Court docket. Go figure!
How were these particular IJs and locations selected for the DD? No clue, which is disconcerting.
Other interesting information.
Here’s a chart that I constructed giving profiles of the “Top 10 DD Judges:”
Overall, the majority (7) are recent GOP appointees from 2018-20. Of the seven with established asylum grant rates, two have grant rates significantly above the national average (Ling, Sagerman), two have grant rates significantly below the national average (Aina, Pope), and three (Auh, Sturia, Pressman) are relatively proximate to the national grant rate for the TRAC period (33.3). None sit within Circuits known for particular harshness to asylum seekers. None, to my limited knowledge, as far as stats are available, are members of the notorious “Asylum Deniers Club.”
So, we’ll see how it all plays out. Perhaps, over time, advocates will grow to “love and cherish” these DDs. More likely, they will eventually develop the same inconsistencies, inefficiencies, and maddening quirks that have accompanied almost all prior DOJ/EOIR “artificial gimmicks” intended to “speed up the treadmill” without meaningful advance input from experts of the private bar.
But, to me, it looks like the “same old” mismanaged, misguided, failing and flailing EOIR.
Should we expect better from the Biden Administration? You betcha! Will we get it? Probably not, without lots of litigation and hell-raising!
Op-Ed: The U.S. isn’t helpless. It could take in 150,000 Afghan refugees
Americans owe them more than sympathy.
By Karen Musalo
In the past week we have seen searing images and read heartbreaking media accounts of Afghans attempting to leave as the Taliban has rolled into Kabul and asserted control over the country. Americans owe vulnerable Afghans more than sympathy.
Among those at greatest risk are individuals who have worked with the U.S. or its NATO allies, women’s rights activists, human rights defenders, academics, journalists and members of ethnic minorities. Some have reported death threats by the Taliban. Many are desperately trying to destroy any information connecting them to their professional past, but as long as they remain in Afghanistan, they are at risk.
Given the history of U.S. involvement in Afghanistan, Americans have a duty not only to help such vulnerable Afghans but also to lead other nations to do the same.
Direct help from the U.S. is going to require a different approach than the government is taking now. The two routes to date — special immigrant visas and entry through a new priority category created in the refugee admission program — are woefully inadequate. For a start, they do nothing to respond to the immediate and desperate need for protection.
Special immigrant visas, created by Congress in 2009, provide a route to immigrate for Afghans who worked with the U.S. government. As has been widely reported, the application process is extremely onerous and seriously backlogged, conditions aggravated by chronic understaffing during the Trump administration. The International Rescue Committee recently reported that 300,000 Afghan civilians worked with the U.S. in some capacity, but only 16,000 special immigrant visas have been granted since 2014, with 18,000 “in the pipeline.”
Priority 2 of the refugee admission program is broader; it requires an employment relationship with the U.S. but includes work with U.S.-funded projects, nongovernmental organizations or the media. However, this possibility of protection comes with daunting logistical hurdles. Only Afghans outside their country can apply. This means that those at risk must first find a safe harbor nation and a means to support themselves during a processing period that can take months or even years, a situation that Secretary of State Antony J. Blinken has conceded would be “incredibly hard.”
Nothing in the law of the United States limits it to these two narrow options for responding to the urgent protection needs of the Afghan people. The Immigration and Nationality Act provides a mechanism to admit individuals “for urgent humanitarian reasons or significant public benefit,” a process referred to as “humanitarian parole.”
Administrations going back to the 1950s have used the parole authority generously to admit those fleeing persecution — Hungarians after the Soviet invasion of their country, Cubans after Fidel Castro took power, and Vietnamese after the fall of Saigon. Just this week a bipartisan group of senators sent a letter to the Biden administration urging it to evacuate Afghans at highest risk and to use humanitarian parole to quickly and efficiently allow their entry into the United States.
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Thanks, Karen.
Interesting that after decades of chest thumping, fist pumping, nation building, and nationalist rhetoric about our military prowess in Afghanistan and the power of “muscular militarized democracy,” the “right wing crew of cowards and defeatists” now asserts that we are overwhelmed, and even more absurdly existentially endangered, by the prospect of saving 150,000 Afghans from a life threatening situation we helped engineer! Gimmie a break!
I doubt that Afghan refugees are a greater “threat” to America than the Jan. 6 insurrectionists, the perpetrators of the “big lie,” and their supporters and enablers. Or, how about those refusing to save the lives of others and endangering all of us, including children, by not getting vaccinated or wearing a mask. No wonder these anti-American activists are so anxious to shift the focus to the world’s most vulnerable and defenseless, rather than take responsibility or be held accountable for their own noxious, life and democracy threatening actions! That’s what cowards do!
In addition to the statutory measures discussed by Karen above, the President has authority, after consultation with Congress, to admit refugees directly from a country in crisis. INA 101(a)(42)(B). Consequently, the oft heard statement that refugees must be in a “third country” to apply is simply not accurate.
Where there is a will, there is a way. But, some might well question the “will” of the Biden Administration here.
What is painfully obvious is that there isn’t enough urgency, boldness, or creativity in those tapped by the Administration to manage this crisis and actually save some lives! Maybe Alejandro Mayorkas and Lucas Guttentag need to pick up the phone and call Professor Musalo to get things back on track and save more lives, before it’s too late.
WASHINGTON, Aug 20 (Reuters) – A U.S. Supreme Court justice on Friday temporarily blocked a lower court ruling that would require Democratic President Joe Biden to reinstate a contentious immigration policy implemented by his Republican predecessor, Donald Trump.
The brief order by conservative Justice Samuel Alito puts the litigation on hold while the high court considers how to handle the Biden administration’s request seeking to impose a longer-term block on the judge’s ruling that would require the government to revive the Migrant Protection Protocols (MPP) program.
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Read the complete report at the link.
Doesn’t mean the Court will grant the Gov’s application for stay pending appeal. It’s just that Justice Alito sees enough of an issue that he wants his colleague to have a chance to weigh in.
The White House denies that political cowardice caused its foot-dragging. But if true, this wouldn’t be the first time fear of right-wing blowhards distorted Biden’s immigration policies.
In February, Biden announced he was lifting Donald Trump’s draconian restrictions on worldwide refugee admissions. Then, inexplicably, Biden didn’t sign the paperwork to put his change into effect. Refugees who’d already been fully vetted, approved and booked onto flights by the State Department were left stranded.
For months, the White House refused to explain the delay; spokespeople repeated the same content-free bromides about how Biden believes refugees are “the heart and soul of this country.”
Eventually it came out that Biden was dragging his feet because of worries about political optics.
Then as now, his attempt to duck GOP attacks backfired. His delays inspired several negative news cycles about his broken promises.By the time he finally signed the paperwork, the refugee system had been effectively shut down for months, leaving Biden on track to close out the fiscal year with the lowest refugee admissions on record.
You might wonder how the nativists have responded to Biden’s attempts to cave to their preferences. Unsurprisingly: They’re still not happy!
Amid Biden’s delays over the refugee ceiling, and his decisions to maintain other (possibly unlawful) Trump-era immigration policies, Trumpers continued to attack him. Fast-forward to today, as former Trump officials ludicrously fearmonger that Afghans who assisted U.S. troops are dangerous and claim that efforts to rescue them are an extension of Biden’s “self-destructive open border policies.” Tucker Carlson and fellow Fox News colleagues accuse Biden of encouraging Afghan refugees to “change” or even “invade” America, offering rhetoric reminiscent of the white-supremacist “Great Replacement” conspiracy theory.
Here’s the thing Biden never learned: No matter what he does, these bad-faith demagogues will accuse him of “open borders.” So he might as well pursue the policies he thinks are right and not let decisions be dictated by fear of how Fox News might frame them.
This is especially true of today’s Afghan refugee crisis, since there are many conservatives who do support efforts to keep our promises to wartime allies and welcome them here for resettlement. They include veterans who fought alongside these allies, as well as Republicangovernors, senators and congressmen.Republican lawmakers voted overwhelmingly to fund more visas for Afghan allies, as Rep. Peter Meijer (R-Mich.) pointed out in an interview.
“If there is one immigration issue that could have rallied conservatives, it is the protection of Afghans who have helped our military,” said Ali Noorani, president and chief executive of the National Immigration Forum, an advocacy organization working with faith, law enforcement and business leaders. “This was a profound misreading of the politics by the [administration]. And, even worse, believing Tucker Carlson represents America.”
Biden calls himself pro-immigrant. His appointees to senior immigration posts have generally been excellent. And unlike his openly xenophobic predecessor, Biden speaks warmly of newcomers and their contributions to this country. But such words are meaningless if he still caves to the bigots when it matters.
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I urge everyone to read Catherine’s complete op-ed at the above link.
As I always say, actions speak louder than words! The essence of Catherine’s article is so true, and bears repeating and remembering by all members of the NDPA:
Here’s the thing Biden never learned: No matter what he does, these bad-faith demagogues will accuse him of “open borders.” So he might as well pursue the policies he thinks are right and not let decisions be dictated by fear of how Fox News might frame them.
None have said it better and more clearly! And, it’s true not just of Biden, but of Dems almost across the spectrum. When “push comes to shove” they are too often unwilling to stand up for their own values and implement them in the face of well-orchestrated right wing lies and myths.
Having a competent implementation plan, staffed and led by progressive experts, is another frequent Dem failure. The GOP has no problem bringing in unqualified ideologues and hacks to carry out their toxic agendas at the “retail level” of Government.
But, the Dems leave the “progressive all-star team” in the dugout! I’ve pointed out many times that no matter how noble your rhetoric, or meritorious your ideas, you’re doomed to failure if you don’t have the courage, expertise, and determination at the “retail levels” of Government (including the legal system, particularly EOIR) to put better Government into effect.
Catherine is right that many of Biden’s upper level immigration appointees are promising. But, the critical levels below them are still infested with Trump holdovers and folks who simply lack the progressive knowledge, courage, and skill set to constructively solve problems and implement long overdue reforms.
I’ve actually lived through it in a number of Administrations where once in office, the Dems basically carried out the GOP immigration agenda, pissed off some of their most loyal supporters, but were still characterized as “open borders” and “weak” by the GOP while actually killing, maiming, and destroying the lives of those they once had pledged to protect! Could there be a worse result?
As usual, Catherine’s analysis is much clearer, more succinct, and more articulate than the gibberish and double-talk that often comes out of politicians on both sides, but particularly the White Nationalist nativist crowd. I’ve suggested before that the Biden Administration or Dems in Congress would do well to hire Catherine as their spokesperson and “press flackie” on immigration. They also would do well to pay attention to her substantive analysis on issues including immigration and the economy.
But, even if they weren’t, we would have a moral obligation to help Afghan refugees after 20 years in their nation, during which many have been placed in life-threatening situations because of their assistance to us or their adherence to our stated ideals and promises.
Many of us have been warning for some time about the catastrophic human and moral consequences of the Biden Administration’s “slow walk” to repair the intentional, legally questionable, and unconscionable dismantling of the once-proud U.S. Refugee Program done by the Trump White Nationalist kakistocracy and its cowardly cronies, enablers, and bureaucratic toadies. (The same is true of our legal asylum system, which deals with refugees in a different context.)Now, our worst fears are playing out with the world watching and lives in the balance.
Here’s a key quote from Circuit Judge Kayatta’s majority opinion:
KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara (“Hernandez”), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire (“Strafford County Jail”) pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk.
Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment
of the district court, arguing that the procedures employed at Hernandez’s original bond hearing comported with due process and, consequently, that the district court’s order shifting the burden of proof was error. Although we agree that the government need not prove a detainee’s flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows.
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Note that the Garland GOJ continued to defend EOIR’s unconstitutional procedures. So, don’t be shocked if they ask the Supremes to intervene. And the current Supremes have too often been happy to ignore the Due Process Clause when it comes to the rights of migrants of color.
But, it’s some progress toward eventually dismantling the “New American Gulag” — the one that Biden is still running (despite campaign promises to the contrary) and that righty Federal Judges and nativist GOP AGs in the Fifth Circuit are committed to expanding!
For the NDPA, the war to save humanity never ends!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Beneath the disingenuous legal blather of the 5th Circuit’s tone-deaf judges, this is the sentence that they are pronouncing on the world’s most vulnerable, without any due process or concern for human dignity. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the decision denying the Administration’s request for stay in Texas v. Biden:
Although this was only a stay application, the tone of the decision left little doubt about the court’s Trumpist ideology and intention to block rational humanitarian human rights initiatives by the Administration. Not surprisingly, the 3-judge panel was all GOP appointees — two Trump, one Bush II
I wouldn’t expect any help from the Supremes. So, we’ll see whether right wing Federal Judges and GOP AGs can conduct a war on human rights and communities of color by taking over the immigration enforcement apparatus and re-instating Trump’s racist policies.
The Administration is not entirely blameless here. The extreme problems with MPP, including how it caused needless deaths, torture, kidnapping, extortion, rape, and other grotesque mistreatment for those returned, were well-documented going into the 2020 election. Indeed, Biden and Harris campaigned on a promise to reverse them!
Yet, not having a viable plan for restoring the legal asylum system and dealing humanely with new border arrivals “ready for prime time” by inauguration, and still not really having one, is problematic. Although some have “touted” the just-released asylum NPR as the “solution,” that system is not, by any stretch of the imagination, “ready for prime time” either, given the disastrous operational, personnel, “cultural, and “quality control” issues at both the Asylum Offices and EOIR, which could and should have been addressed before now and which could actually become worse if the NPR goes into effect without major internal and leadership changes at these dysfunctional agencies.
Moreover, it appears that DOJ Attorneys did a substandard job of documenting the many problems, adverse effects, and operational issues with MPP and the injustices and abuses it inflicted upon legal asylum seekers.
As opposed to the rather contrived interests of the states in furthering oppression, endorsed by the Fifth Circuit, the human interests of those seeking asylum under what was supposed to be a fair and functional legal system have fallen off the radar screen. The law still says that any individual arriving at the border, regardless of status, has a right to apply for asylum. That right, as well as the humanity of refugees and the legal and moral obligations of our nation, has been entirely abrogated by the Fifth Circuit.
In a well-functioning democracy, Congress could reform the law, bring the righty judges back under control, and restore Constitutional protections and human and civil rights, But, that would probably take a party different from today’s Dems. And, of course, with the support of the Supremes, the GOP is working furiously to suppress minority votes and insure GOP minority rule stretches long into the future.
A federal judge delivered another setback to the Biden administration’s immigration agenda on Thursday, blocking a set of rules that limited who deportation agents should detain and deport from the country.
U.S. District Court Judge Drew Tipton prohibited federal officials from enforcing two directives that instructed Immigration and Customs Enforcement (ICE) agents to focus on arresting recent border-crossers, as well as immigrants deemed to threaten public safety or national security.
Under the new so-called “enforcement priorities,” ICE agents were required to obtain supervisory approval before arresting immigrants living in the U.S. without legal permission who did not fall within the three specified categories.
The memos issued in January and February are part of a broader Biden administration initiative to reshape ICE operations in the interior.
. . . .
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Read the full article at the link. The case, quite aptly, is called Texas v. US!
One would like to think that this would be a “no-brainer” stay and reverse from the 5th or the Supremes. But, given the stocking of the Federal Courts by Trump & McConnell with right-wing extremist judges who have little concern with most individual Constitutional rights and who pride themselves on indifference to racism and unequal justice, I wouldn’t count on it.
However, if this outrageously wrong order stands, I would be interested to see how Tipton and his White Nationalist cabal that includes GOP reactionary AGs in Texas and Louisiana plan to micromanage DHS. Also, I figure that as the grotesque DHS abuses predictably mount, the NDPA will win some major cases from better Federal Judges in other jurisdictions that will force a showdown with Tipton and his motley crew of righty extremists.
Too bad we no longer have a functioning Congress willing to revise the immigration laws in a way that actually incorporates reality and advances our national interests.
Better Federal Judges for a better, fairer America!
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired JudgesHonorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)
In an interview with ABC News, Mr. Biden himself for the first time hinted at flexibility on the deadline, “if there are American citizens left.” That won’t be enough: This country’s moral responsibilities begin, but do not end, with U.S. citizens. On Tuesday, Sen. Ben Cardin (D-Md.) received and forwarded to Secretary of State Antony Blinken an appeal from the National Association of Women Judges on behalf of 250 Afghan women judges, trained by Americans and other Western countries, some of whom sentenced Taliban fighters to prison for murder or other crimes. These criminals have just been released by the Taliban. The judges have thus joined the ranks of the fearful. This country must make time for all of them.
NAWJ is the U.S. Chapter of the International Association of Women Judges, an organization which NAWJ founded, developed and helped grow. NAWJ joins the IAWJ in expressing our grave fears for the basic human rights of women and girls in Afghanistan as the Taliban advance and take control of large parts of the country. In particular, the women judges have disclosed that because they have followed their country’s laws, conducted trials, and administered sentences to the guilty, many of whom are members of the Taliban, they will soon be targeted for assassination. The AWJA judges have served in criminal, anti-corruption and narcotics courts, developed in conjunction with the United States over many years. Through their efforts, they have implemented rule of law and anti-corruption principles which are central to the mission statements of NAWJ and IAWJ.
At a virtual meeting of the AWJA last month, at which a number of NAWJ members were present, the Afghan judges spoke about the dangerous and difficult conditions in which they live and work. Some judges have lost their lives in terrorist attacks and several of the judges present had received death threats. Some have already been forced to flee their posts in the provinces with their families because it was too dangerous to remain. Their fears are not theoretical. In January, two women judges traveling to their jobs at the Supreme Court of Afghanistan, were murdered in the street. Now, the prisons housing convicted terrorists have been opened, and sentenced prisoners are contacting their judges threatening reprisals and revenge.
As a chapter of the IAWJ, an organization comprised of over 6500 women judges from more than 100 countries and territories worldwide, NAWJ wants to draw particular attention to the situation of Afghan women judges, given the special role they have played in upholding the rule of law and human rights for all, and the particular dangers they face as a result. We honor their commitment and their courage. Today, some 250 women serve as judges there.
Today, it is reported that the Afghan government has collapsed. The President of Afghanistan has fled the country. The United States Department of State is currently prioritizing visas for employees of the United States, including interpreters, as the United States reaches its date for final withdrawal from Afghanistan. NAWJ urges the Department of State to include the Afghan women judges and their families, who are in such a desperate and precarious position, in facilitating travel and processing visas in the same manner that special measures are being extended to interpreters, journalists and other personnel who provided essential service to the foreign military forces in Afghanistan. NAWJ urges our government to consider the fate of the women judges. By serving as judges and helping develop the Afghan judicial branch, women judges have helped establish the rule of law in their country, an essential pillar of a democratic state. Allowing them to be at the mercy of the Taliban and insurgent groups, given what they have sacrificed and contributed working side by side with the United States would be tragic indeed.
Hon. Karen Donohue
President, NAWJ
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Thanks to my friends and long-time colleagues Judge Churchill and Judge Tsankov for standing up and speaking out. I understand from them that Senior DC Court of Appeals Judge Vanessa Ruiz (also a past President of the NAWJ) was also instrumental in this effort.
Honorable Vanessa Ruiz Senior Judge, DC Court of Appeals PHOTO: Wikipedia
Also, many thanks to Senator Ben Cardin (D-MD) for sending this to Secretary of State Anthony Blinken who hasn’t exactly covered himself in glory or shown much moral or intellectual courage in standing up for the rights and lives of refugees and energizing the bureaucracy to save lives.
Compare this with the conspicuous lack of moral, intellectual, and legal leadership and effective action from the Biden USDOJ on refugee and asylum issues.
Sadly, as many of us tried, in vain, to tell the incoming Biden Administration, failure to make immediate, bold, progressive, humanitarian, due process reforms at EOIR and to take a strong, courageous stand against the continuing misuse of bogus legal rationales to suspend refugee and asylum processing (and ignore our legal and moral obligations to refugees and other migrants) at the border will likely cripple the US response to arising human rights catastrophes and cost more innocent human lives.
Human rights and immigrant justice are not “back burner” issues! Nor are they “rocket science!” Delay costs lives and undermines democracy and our international leadership.
🇺🇸⚖️🗽Due Process Forever! Lack of expertise and moral courage has consequences!
Michelle Rindels & Riley Snyder report for The Nevada Independent:
A federal judge in Nevada has ruled that a nearly 70-year-old section of law that makes it a felony to reenter the U.S. after being deported is unconstitutional, saying it was enacted with discriminatory intent against Latinos and therefore violates the Equal Protection Clause.
Judge Miranda Du issued an order on Wednesday dismissing a case against Gustavo [Carrillo]-Lopez, who was indicted last summer for being in the U.S. in spite of being deported in 1999 and 2012. It appears to be the first time a court has made such a decision, even though the statute known as Section 1326 has been under consideration by several district courts.
“Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus … the Court will grant the Motion,” Du wrote.
The case is a blow for the Department of Justice (DOJ), which initially filed the charge during the Trump administration — an era of hardline immigration policies — but has since switched hands to the Biden administration. Left-leaning groups have asserted that the Trump administration had “weaponized” Section 1326 and other decades-old immigration laws as part of their “zero tolerance” immigration strategy.
Julian Castro, a former Democratic presidential candidate and secretary of the Housing and Urban Development Administration, tweeted that “this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court.”
. . . .
The order notes that the law has a disparate impact on Latinos, noting that 87 percent of people apprehended at the border in 2010 were of Mexican descent. While the federal government argued those statistics are a function of geography and Mexico’s proximity to the U.S. rather than discrimination, Du said the argument was unpersuasive.
“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.
. . . .
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Read the complete article at the link,
Great decision! Notable for you “liberal artists” that historical analysis of racism and eugenics in America presented by Kelly Lytle Hernández, a history professor at UCLA, helped make the record and carry the day!
Just the kind of interdisciplinary interaction that permeates judging, particularly in immigration and human rights, and argues for more liberal arts grads with backgrounds in history, the humanities, linguistics, demographics, and social sciences on the Immigration Bench and the Article IIIs.
I’ve long criticized the “ahistorical” sometimes “anti-historical” approach taken by the BIA and other Federal Courts! For example, promoting the fiction that treaties, laws, ombudpersons, and even elections magically change centuries’ old animuses and make everything “hunky dory” for long-persecuted social, political, ethnic, religious, or racial groups.
Now, if we can only get the Article IIIs to do their job and hold the entire EOIR system, as currently operating, which has fatal racial bias, fairness, impartiality, expertise, and operational problems that make it a “walking violation of due process,” unconstititional, we could be on the way to the change America needs to bring an end to the present national disgrace in our Immigration Courts which is diminishing justice for everyone in America.
Additionally, despite life tenure, most Federal Courts have been reluctant to enforce the Constitution against the many Executive and Legislative abuses in the area of immigration and human rights. So, I would be disappointed, but not surprised, if this ruling is reversed on appeal.
Nevertheless, it’s an important step in exposing racism, connecting it with immigration, establishing truth, and fighting the Executive’s unconscionably bad and often illegal performance on immigration and race! While Garland might incorrectly think that immigration and human rights are “back burner” issues, by the time the NDPA is done with him they might well be issues that consume most of his time and irreparably damage his reputation. That’s why a wise Attorney General would be “leading the bandwagon for Article I” while immediately bringing in the progressive experts necessary to re-establish due process and efficiency at EOIR.
At any rate, this is exactly the kind of “creative disruption” that needs to happen until the system wakes up and makes the necessary progressive, due process, equal justice reforms long overdue at EOIR and other parts of the immigration bureaucracy.
Garland’s Unwillingness To Install Progressive Competence @ EOIR Continues to Drag Down the Ship Of State! PHOTO: Thomas Hawk Creative Commons Amateur Night
Here’s a link to the Notice of Proposed Rulemaking, courtesy of Dan Kowalski over at LexisNexis Immigration Community:
At first glance, this could potentially be a workable system, with some favorable aspects:
* Restores properly generous credible fear standard;
* Allows AO to grant well-established cases in first instance, even at the credible fear level, without referral to EOIR;
* Retains EOIR review of both credible fear and asylum denials;
* Doesn’t appear to affect pending and affirmative cases;
* Retains access to Circuit review of denials.
But, as with most things, the devil 👹 is in the details. And, personnel, leadership, direction, and accountability are absolute keys to success.
Without:
1) More and better Asylum Officers;
2) Far better training at the AO and EOIR (see, Michele Pistone);
3) Better IJs with proven expertise in asylum law and a demonstrated willingness to grant relief to worthy cases;
4) An entirely new BIA of progressive asylum experts to provide leadership, positive precedents, and accountability for both credible fear reviews and de novo asylum reviews;
5) An agreement with the private bar as to where and on what schedule these cases are to be heard, to achieve universal representation (see, Michele Pistone and VIISTA); and
6) Agreements with NGOs re housing, care, employment assistance to take pressure off particular communities;
this proposal appears to be “headed for failure.”
I can’t glean any of those essential characteristics from this NPR.
In their absence:
1) There are likely to be huge discrepancies in AO decisions;
2) Many current IJs, particularly from border areas, will simply “rubber stamp” both credible fear and asylum merits denials from the AO to keep the EOIR dockets moving and “make quota” (Lucas Guttentag, where are you?);
3) “Rubber stamping” of asylum denials is also endemic at the BIA, as currently comprised;
3) The current BIA will be reluctant to issue positive asylum precedents (not sure they even know how or have the ability to do so) and will likely concentrate on instructing AOs and the IJs on how to deny asylum or credible fear and have it stand up on review;
4) The private bar will be unable to keep up with the pro bono demand, causing many applicants to be unrepresented or underrepresented;
5) Asylum applicants will be concentrated in particular communities, often near the border, who will complain about the burdens being inflicted upon them by the Feds.
In other words, without better, expert, progressive leadership at both DHS and DOJ, and without major changes in personnel and training, this program will rapidly become a disaster, like other “streamlining” efforts that do not deal realistically with the practical aspects of implementation, particularly the qualifications, attitude, “culture,” and training of those making the actual decisions!A continuing lack of progressive leadership and expertise at the “retail level” will likely lead to widespread injustice, inconsistency, and eventually protracted litigation.
I am also concerned that the NPR appears to take the current 1.4 million case EOIR backlog (actually under-stated in the NPR as 1.3 million — Garland has grown it almost as rapidly as Barr-Sessions) as a “given.” But, there are readily available ways to dramatically slash this backlog by perhaps as much as 90% (see, Chen & Moskowitz plan) which would allow both IJs and the BIA to work on these cases “in real time” WITHOUT creating yet more “Aimless Docket Reshuffling” at EOIR (as the NPR, without the changes outlined above, is highly likely to do).
“Like the rest of us, Casey has no idea what Judge Garland is doing and what he hopes to achieve in his Star Chambers!” PHOTO: Rudi Reit Creative Commons
This leads me to reiterate Casey’s cosmic question: “Can’t anybody here play this game?”Ironically, there are many “all-star players” out here in the real world who can and would be “winners.” But, for whatever reason, to date, this Administration has unwisely chosen to leave most of them “on the sidelines” rather than giving them bats and gloves and putting them in the game. ⚾️ That’s painfully obvious at DOJ! Not a recipe for a “winning campaign” in my “preseason prediction.”
USAToday: Judge Matthew Kacsmaryk, a Trump appointee, directed the Biden administration to reinstate the program, saying the administration “failed to consider several critical factors” when ending the program. Kacsmaryk delayed his order for seven days to give the administration a chance to appeal.
Reuters: Mayorkas, speaking at a news conference in south Texas, did not provide details about which asylum seekers would be eligible to use the online system, but said further asylum changes would be announced in the coming days.
WaPo: The number of migrants detained along the Mexico border crossed a new threshold last month, exceeding 200,000 for the first time in 21 years, according to U.S. Customs and Border Protection enforcement data released Thursday.
NYT: By this week, at least 1,000 migrants were housed at the teeming camp, erected by the nearby city of McAllen as an emergency measure to contain the spread of the virus beyond the southwestern border. About 1,000 others are quarantined elsewhere in the Rio Grande Valley, some of them in hotel rooms paid for by a private charity.
Politico: Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.
Newsweek: [S]ix months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.
WaPo: Last week, the Biden administration began the expulsion flights from the United States to the southern Mexican city of Villahermosa in a bid to deter repeat border crossers. Mexico agreed to accept those flights and said it would allow those who feared persecution in their home countries to apply for asylum. But the migrants — mostly from Honduras, El Salvador and Guatemala — who have arrived in the remote Guatemalan border town of El Ceibo describe a chaotic series of expulsions, first from the United States in planes and then from Villahermosa to Guatemala by bus. They say they were not given an opportunity to seek refuge in Mexico.
CNN: The agency’s new policy, issued Wednesday, marks the latest effort by the Biden administration to pivot from the Trump administration and tailor enforcement priorities. Going forward, ICE will require agents and officers to help undocumented victims seek justice and facilitate access to immigration benefits, according to the agency.
WSJ: The situation complicates what has already been a yearslong wait for many of the 1.2 million immigrants—most of them Indians working in the tech sector—who have been waiting in line to become permanent residents in the U.S. and are watching a prime opportunity to win a green card slip away.
CBS: The death toll from a magnitude 7.2 earthquake in Haiti soared to at least 1,297 Sunday as rescuers raced to find survivors amid the rubble ahead of a potential deluge from an approaching tropical storm. Saturday’s earthquake also left at least 2,800 people injured in the Caribbean nation, with thousands more displaced from their destroyed or damaged homes.
TheCity: Lt. Gov. Kathy Hochul, speaking publicly for the first time as New York’s governor-to-be, insisted Wednesday she’s “evolved” since fighting against driver’s licenses for undocumented immigrants by threatening them with possible arrest and deportation.
AILA: The BIA dismissed the appeal after concluding that the respondent’s prior receipt of special rule cancellation of removal under the NACARA bars her from applying for cancellation of removal. Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021)
Law360: The Third Circuit signed off Monday on an order from the New Jersey Attorney General’s Office barring law enforcement agencies from sharing certain information with federal immigration authorities, ruling in a precedential opinion that two federal statutes do not bar the directive since they regulate states and not private actors.
AILA: The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)
AILA: The court held that it lacked jurisdiction to review the BIA’s finding that the petitioner had not presented prima facie evidence of her eligibility for cancellation of removal pursuant to INA §242(a)(2)(B)(i). (Parada-Orellana v. Garland, 8/6/21)
AILA: The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)
AILA: The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)
AILA: The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)
Law360: The Board of Immigration Appeals was wrong to deny administrative closure to a Mexican woman and her daughters while they had a U visa petition pending, an Eighth Circuit panel ruled, faulting the board’s reliance on now-vacated precedent.
AILA: Granting the petition for review, the court held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the “clearly and beyond doubt” burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. (Romero v. Garland, 8/2/21)
AILA: The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)
AILA: The court held that Hawaii’s fourth degree theft statute, a petty misdemeanor involving property of less than $250, is overbroad with respect to the BIA’s definition of a crime involving moral turpitude (CIMT) and is indivisible, and granted the petition for review. (Maie v. Garland, 8/2/21)
Law360: The Ninth Circuit denied a Mexican man’s appeal of his deportation order Wednesday, saying the Board of Immigration Appeals was correct in ruling that his past conviction for marijuana possession made him ineligible for cancellation of removal.
AILA: The court held that the petitioner’s conviction in Florida under Fla. Stat. §790.23(1)(a) for being a felon in possession of a firearm did not constitute a “firearm offense” within the meaning of INA §237(a)(2)(C) and its cross-reference to 18 USC §921(a)(3). (Simpson v. Att’y Gen., 8/4/21)
Law360: A Texas federal judge on Friday extended for an additional 14 days an emergency order temporarily blocking Gov. Greg Abbott’s executive order restricting ground transportation of migrants detained at the border amid the COVID-19 pandemic.
Law360: An American who has waited years for his Pakistani wife to have her green card application processed is suing the federal government, blaming their visa limbo on what they call an illegal national security vetting program.
AILA: ICE released ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, with guidance on how it will handle civil immigration enforcement actions involving noncitizen crime victims.
AILA: USCIS SAVE issued guidance regarding Afghans who are eligible for Special Immigrant Visas and their special immigrant LPR status or special immigrant parole that meets the special immigrant requirement for certain government benefits.
AILA: USCIS stated that 8/12/21 through 9/30/21, it will extend the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years now to four years due to COVID-19-related delays in processing. Guidance is effective 8/12/21, and comments are due by 9/13/21.
AILA: Executive order issued 8/9/21, imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus, including suspending the unrestricted immigrant and nonimmigrant entry into the United States of such persons. (86 FR 43905, 8/11/21)
AILA: On 8/5/21, President Biden issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States on 8/5/21, with certain exceptions. (86 FR 43587, 8/10/21)
The article by Anita Kumar in Politico should be an “eye opener” for those progressive advocates who think Garland is committed to due process, equal justice, and best practices in Immigration Court and elsewhere in the still dysfunctional immigration bureaucracy. This particular quote stands out:
“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”
I dare any advocate to claim Garland has moved “swiftly and aggressively” to undo the Miller White Nationalist agenda! Yes, after a crescendo of outrage and public pressure from NGOs, he has vacated four of the worst xenophobic and procedurally disastrous precedents. But, there are dozens more out there that should have been reversed by now.
More important, returning the law to its pre-Trump state is highly unlikely to bring meaningful change and fairer results as long as far too many of the Immigration Judges and BIA Judges charged with applying that law are Trump-era appointees, some with notorious records of anti-immigrant bias and a number who have denied almost every asylum case that came before them. (And, it’s not like A-R-C-G- was fairly and consistently applied during the Obama Administration, which largely gave “the big middle finger” to progressives in appointments to the Immigration Judiciary).
Is an IJ who was denying nearly 100% of A-R-C-G- cases (and in some cases misogynistically demeaning female refugees in the process) even prior to A-B- suddenly going to start granting legal protection? Not likely!
Are BIA Judges who got “elevated” under Trump by being notorious members of the “Almost 100% Denial Club” suddenly going to have a “group ephifany” and start properly and generously applying A-R-C-G- to female refugees and insisting that trial judges do the same? No way!
Is a BIA where notorious asylum deniers are heavily over-represented and others have shown a pronounced tendency to “go along to get along” with Miller-type xenophobic White Nationalist policies now going to do a “complete 360” and start churning out “positive precedents” requiring IJs to fairly and generously grant asylum as contemplated in long-forgotten (yet still correct) precedents like Cardoza-Fonseca, Mogharrabi, and Kasinga? Not gonna happen!
Will a few rumored, long delayed progressive expert appointments to the Immigration Judiciary “turn the tide” ofsystemic dysfunction, intellectual dishonesty, anti-immigrant, anti-asylum “culture,” lack of expertise, and dereliction of due process and fundamental fairness at EOIR? Of course not!
So, progressives, don’t kid yourselves that Garland has “seen the light” and is on your side. Judge him by his actions and appointments!
Note, that unlike Sessions and Barr, it’s actually hard to judge Garland on his rhetoric, because there isn’t much. He’s five months into running a nationwide system of dysfunctional “star chambers.”
But, to date, he hasn’t uttered a single inspiring pronouncement on returning due process, fundamental fairness, human dignity, decisional excellence, or professionalism to EOIR, connecting the dots between immigrant justice and racial justice, or given any warning that those who don’t “get the message” will be getting different jobs or heading out the door.
I still remember my first personal encounter with AG Janet Reno when she exhorted everyone at the BIA to promote “equal justice for all!” I still think of it, and it’s still “on my daily agenda” — over a quarter century later, even after the end of my EOIR career!
Where are Garland’s “inspiring words” or “statements of values” on immigrant justice and equal justice for all!Actions count, but rhetoric in support of those actions is also important. So far, Garland basically has “zeroed out” on both counts!
Yes, along with the entire immigration community, I cheered the appointment of Lucas Guttentag! But, Lucas isn’t deciding cases, nor has he to date brought the progressive experts to EOIR Management and repopulated the BIA with progressive expert judges who will end the due process abuses and grotesque injustices at EOIR and start holding IJs with anti-asylum, anti-migrant, anti-due-process agendas accountable.
Also unacceptably, progressive litigators haven’t been brought in to assume control of the Office of Immigration Litigation (“OIL”) and end wasteful, and often ethically questionable, defense of the indefensible in immigration cases in the Article IIIs.
We need bold, progressive, due process/fundamental fairness/racial justice reforms! It’s got to start with major progressive personnel changes! And, it should already have started at EOIR!
The best laws, regulations, precedents, and policies in the world will remain ineffective so long as far too many of those judges and senior executives charged with carrying them out lack demonstrated commitment to progressive values, not to mention relevant, practical expertise advancing human and civil rights!
Contrary to what many think, bureaucracy can be moved by those with the knowledge, guts, determination, and commitment to do it! Seven months after Biden’s inauguration, the DOJ remains a disaster with the situation at EOIR leading the way!
It didn’t have to be that way! It’s unacceptable! Foot dragging squanders opportunities, wastes resources, and, worst of all, actually costs lives and futures where immigration is at stake. This isn’t “ordinary civil litigation!” It’s past time for tone-deaf and inept Dem Administrations to stop treating it as such!
The following item from Angelika Albaladejo at Newsweek should also be a “clarion call” to advocates who might have thought this Administration (and even Congressional Dems) has a real interest in human rights reforms.
Here’s the essence:
President Joe Biden promised to end prolonged immigration detention and reinvest in alternatives that help immigrants navigate the legal process while living outside of government custody. These promises were part of Biden’s campaign platform and the reform bill he sent to Congress on his first day in the White House.
But six months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.
Meanwhile, community case management—which past pilot programs and international studies suggest is less expensive while more effective and humane—is receiving comparatively little support.
Same old same old! Election is over, immigration progressives who helped elect Dems are forgotten, and human rights becomes an afterthought —or, in this case, worse!
Progressives must continue to confront a largely intransigent and somewhat disingenuous Administration. A barrage of litigation that will tie up the DOJ until someone pays attention and, in a best case, forces change on a tone-deaf and recalcitrantAdministration, is a starting point.
But, it’s also going to take concerted political pressure from a group whose role in the Dem Party and massive contributions to stabilizing our democracy over the past four years is consistently disrespected and undervalued (until election time) by the “Dem political ruling class!”
Legislation to create an Article I Immigration Court and get Garland, his malfunctioning DOJ, and his infuriating “what me worry/care attitude” completely out of the picture has also become a legal and moral imperative, although still “a tough nut to crack” in practical/political terms. But, we have to give it our best shot!
Actions (including, most important, personnel changes) solve problems and save lives! Unfulfilled promises, campaign slogans, and fundraising pitches not so much!
Many who helped put Biden and Garland in office believed that “Americans Gulags” and “EOIR StarChambers” would be a thing of the past by now. But, outrageously, they are still alive, well, and thriving in the Biden Administration, even being expanded and defended by Garland’s team of morally and ethically challenged DOJ lawyers. “The Inspiring Words & Deeds of AG Merrick Garland on Immigrant Justice” would fill a book about as large as “The Combined Wisdom & Humanity of Donald Trump & Stephen Miller.” Oh well, at least the Grim Reaper must be happy with the way things are going! Image: Hernan Fednan, Creative Commons License
😎Due Process Forever! Star Chambers and the New American Gulag, Never!
