"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.
We are looking to connect with immigration attorneys who have clients who crossed the border in recent years and have sought asylum in immigration court.
Specifically, we are looking to talk to asylum-seekers who have waited years/months for their cases to be heard in immigration court and are STILL waiting for a final decision.
Please comment or send me a message if you have a client who would be interested in speaking with us.
. . . To tell Hamed Aleaziz at The NYT the truth about the “under the radar” mess at EOIR that is systemically treating those with valid claims and sound defenses unfairly and threatens, with its unrelenting disorder and “deterrence bias,” to destabilize the entire U.S. Justice System! Public Domain
The (largely avoidable), backlog building, due-process-denying mess at Garland’s EOIR is one of the “unsung drivers” of bad immigration policies and myths about migrants, particularly asylum seekers.
To the extent that this glaring problem is covered at all by the so-called “mainstream media,” it’s usually superficial: reference to the 3.5 million case backlog, long delays, and the need for more Immigraton Judges and court personnel.
Here’s your chance to correct that “cosmetic coverage” by giving Hamed input on the overall unfairness, unnecessary inefficiencies, “user-unfriendliness,” and grotesque lack of overall legal expertise, consistency, and common sense in this broken system! It has improperly become a tool of “deterrence” in behalf of DHS Enforcement and has lost sight of its only proper role of insuring Constitutionally-required due process and fundamental fairness for individuals comingbefore the Immigration Courts!
On a sunny January morning, in the windowless office of a nondescript government building, Jose Franco Gonzalez was sworn in as a United States citizen. There is not a lot of good news in immigration these days, with President Biden doubling down on proposals that would gut remaining asylum protections and former President Trump threatening mass deportations. But Franco’s story is a reminder that a better immigration system remains possible. His experience points toward a path for getting there.
. . . .
No system is perfect, and this one is no exception. There remain significant gaps in screening and identification, competency assessments are often done by judges without the aid of professional mental health evaluations, and people still languish in immigration custody for months or longer as their cases wind through the system. And, to our collective shame, the right to legal representation has not been extended to any other groups in immigration proceedings, including children. Still, there is no question that Franco’s namesake litigation not only changed the course of his own life, but also created a sea change in an immigration system that often feels impossible to move toward justice.
The next positive changes may be harder to win in the courtroom, and almost certainly won’t come from the halls of this Congress. But the Biden administration has the power to make good on its promise of a more humane immigration system, including by extending the National Qualified Representative Program to other groups, among them children and families. No court order or act of Congress is required to do so, just political will. And, of course, dollars: Diverting from the nearly $3 billion spent annually on immigration detention is a good place to start.
States and localities can also play a crucial role in expanding legal representation as well as other protections in the face of federal gridlock. And immigrant organizing, especially among youth, will continue to break open new paths for change. As we head into another election cycle in which the demonization of immigrants and the failures of our current system take center stage, Franco — now a U.S. citizen — is living proof that a better immigration system is possible.
Talia Inlender is deputy director of the Center for Immigration Law and Policy at UCLA School of Law.
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Read Talia’s full op-ed at the link.
Thanks, Talia, for all you do, and for sharing this inspiring “real life saga!” It’s always helpful to know “the rest of the story,” especially when there is a “happy ending.”
The Franco case is a “biggie” in modern immigration due process impact jurisprudence! While it didn’t apply in Arlington, Virginia, where I was sitting as a judge, I certainly remember colleagues assigned to do “TV Court” in 9th Circuit jurisdictions speaking about doing “Franco hearings!”
For a fraction of the cost of more cruel and counterproductive enforcement gimmicks being pushed by both parties in this election year, our nation could make real improvements in the immigration justice system, particularly at EOIR. Tragically, there appears to little political will to do the right (and smart) thing here!
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW LawSara McKinnon Professor, U.W. Madison Sara L. McKinnon is Professor of Rhetoric, Politics & Culture in the Department of Communication Arts, and Faculty Director of Latin American, Caribbean, and Iberian Studies. She is co-chair of the Human Rights Program PHOTO: U.WJorge Osorio Director, Global Health Institute Jorge Osorio, DVM, Ph.D., M.S., is a professor in the Department of Pathobiological Sciences in the School of Veterinary Medicine. Osorio has had a lengthy career in medical sciences, including virology, field epidemiological studies, vaccinology,… PHOTO: U.W.
A policy and research collective of the University of Wisconsin-Madison focused on assessing migration policy and developing ways to reduce risk and harm to make movement and residence safer for migrants throughout the Western Hemisphere. We approach this goal from a range of methodologies and perspectives, and share our work in a range of formats including research reports, policy documents, field briefings, narratives and stories, videos, and audio recordings or podcasts. We hope you find our research and information to be helpful in your own work.
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Get more information on this amazing initiative at the above link.
Also, here’s a link to a video of the recent UW Global Health Symposium, where Sara and Erin explain their truly amazing work in detail (starting at about 1:22 of the video):
I am also proud that my U.W. Law ’73 classmate retired Judge Tom Lister and I will be Erin’s guests at a public luncheon presentation at the U.W. Law School tomorrow (April 23, 12pm-1pm, ) where will will discuss, among other topics related to justice, our concept for “Judges Without Borders.” This innovative idea ties in well and supports the objectives of the Migration In The Americas project of analyzing and providing accurate, unbiased information about the situations of migrants before they reach our border utilizing the huge potential of retired State and Federal judges.
We hope you will join us if you are in the Madison area! (The room assignment was “pending” when the flyer went to press, so you should call the Clinic or ask at the Law School on arrival for the latest).
Hon. Thomas Lister Retired Jackson County (WI) Circuit Judge
You can read more about “Judges Without Borders” here:
The Immigration Clinic Wins Two Asylum Cases in One Day
15APR 2024
Last week, the Immigration Clinic secured two asylum victories in one day for our Afghan allies. These cases spanned two academic years, but both cases were granted by the Arlington Asylum Office on the same day.
In August of 2021, thousands of people went to Hamid Karzai International Airport in Kabul, Afghanistan to flee the Taliban. Among those thousands of people were Ms. S*, daughter of an Afghan government official, and Mr. K*, an Afghan attorney, and his wife Mrs. K*. Luckily, they all managed to get on a plane out of Kabul and were evacuated to the United States. When they were resettled to Hampton Roads, Ms. S, Mr. K, and Mrs. K all reached out to the Immigration Clinic for assistance in their cases.
During the 2022-23 Academic Year, Melissa Box J.D. ’23 worked with Mr. and Mrs. K on their asylum cases. Then during the 2023-24 Academic Year, Sarah Nagle, J.D. ’24 worked with Ms. S on her asylum case.
Below, we share the stories behind these lifechanging victories.
Mr. K and Melissa Box, J.D. ‘23
In Fall 2022, Melissa Box, J.D. ’23, was assigned to work on Mr. and Mrs. K’s asylum case.
Melissa was first assigned to write Mr. K’s affidavit for his asylum case. Asylum affidavits require several interviews and meticulous detail about a client’s case. While an asylum applicant’s testimony can, in theory, be enough to prove their case, the written and oral testimony must be consistent and credible. In order to capture the level of detail necessary for his case, as well as accurately prepare an affidavit in his voice, Melissa worked with Clinic Director Professor Stacy Kern-Scheerer to interview Mr. K. Across many interviews over the course of many months, Melissa learned about Mr. K’s career as an attorney, his passion for his work, and the danger he faced because of it.
Through their interviews, Mr. K and Melissa built a deep and lasting rapport. “I was lucky to have the time to make sure I fully understood Mr. K’s life’s story and gain his trust,” Melissa shared before her graduation last year. “I know Mr. K better than some law students I’ve spent years in class with. I know his mannerisms and was able to advocate for him. It really meant a lot when my client told Professor Kern-Scheerer and me that he thought I knew him better than he knew himself.”
After writing Mr. K’s affidavit, Melissa researched conditions in Afghanistan relevant to Mr. K’s case, including the treatment of attorneys and former government employees in Afghanistan. Melissa worked with Clinic Professor Nicole Medved on finding and preparing the country conditions evidence that would best support Mr. K’s asylum claim. This research was critical to contextualizing Mr. K’s fear of returning to Afghanistan.
After the Clinic submitted Mr. K’s asylum case in March 2023, USCIS quickly scheduled Mr. K and his wife for an asylum interview in April 2023, during the last week of classes of the semester. Clinic Director Professor Kern-Scheerer and Melissa prepared Mr. and Mrs. K for what to expect at the interview, and Melissa prepared her closing argument to present to the Asylum Officer for why Mr. and Mrs. K merit a grant of asylum.
Melissa Box, J.D. ’23 (left) and Professor Kern-Scheerer (right) at the Arlington Asylum Office for Mr. and Mrs. K’s Asylum interview (Spring 2023).
During the last week of class, Professor Kern-Scheerer and Melissa accompanied Mr. and Mrs. K to their asylum interview. After a roughly 3-hour hour interview, Melissa delivered her closing argument to the officer. After the interview had finished, there was nothing left to do but wait for a decision on the case.
Ms. S and Sarah Nagle, J.D. ‘24
Ms. S and her family also reached out to the Immigration Clinic for assistance in their asylum case. Ordinarily, children can be included on their parents’ asylum applications so that if the parent wins asylum, the child wins as well. However, Ms. S was too old to be included in her father’s case. Instead, she would have to meet the high burden of asylum all on her own.
This fall, Sarah Nagle, J.D. Class of 2024, was assigned to work on Ms. S’s asylum case. Sarah’s first task was to write Ms. S’s affidavit. Asylum affidavits are a critical piece of evidence because an asylum applicant’s testimony alone can be sufficient to prove their case. Since interviews with Ms. S about her story had already been completed, Sarah worked with Professor Kern-Scheerer to best capture Ms. S’s voice in her affidavit. “Sarah faced a unique challenge in writing Ms. S’s affidavit,” said Professor Kern-Scheerer. “Her assignment was to capture Ms. S’s personality and convey her fears without having heard her tell the story herself. This also underscored the importance of prior students having kept meticulous notes from previous interviews and discussions. Sarah met this challenge with thoughtful persistence, and wrote an excellent affidavit for Ms. S. ”
“Working on an affidavit was unlike any legal writing I had ever done before,” said Sarah. “Focusing on what was important to Ms. S—family, peace, and a willingness to stand by her convictions—helped anchor me in her perspective. Even though every word of the affidavit was based on her own words, I had doubts about my success until I reviewed the affidavit with her and received a smile, firm nod, and assertive ‘yes’ that I had captured what she wanted to convey. Being entrusted with helping tell someone else’s story was a great honor and fantastic learning experience.”
After completing Ms. S’s affidavit, Sarah next turned to researching conditions in Afghanistan relevant to Ms. S’s case. While it is easier to find evidence about the Taliban’s brutality against former government officials or former members of the military, finding evidence of the Taliban’s violence against their family members is not as simple. Sarah worked with Clinic Professor Nicole Medved next on finding and preparing the country conditions evidence that would best support Ms. S’s claims. This evidence played a critical role in contextualizing Ms. S’s fears of returning to Afghanistan.
In November 2023, after finishing all of the forms, affidavit, and evidence gathering, the Clinic submitted Ms. S’s asylum application to USCIS.
To everyone’s surprise, Ms. S was scheduled for an asylum interview just three weeks later. Sarah and Professor Medved worked closely with Ms. S to prepare her for what to expect at the asylum interview. Sarah also prepared her closing argument for Ms. S, demonstrating how Ms. S’s affidavit and country conditions evidence all prove that Ms. S merits a grant of asylum.
Sarah Nagle, J.D. ’24, reviewing Ms. S’s case prior to her Asylum Interview (Fall 2023).
In December, Professor Medved and Sarah Nagle accompanied Ms. S to her asylum interview in Arlington, Virginia. After Ms. S’s two-hour interview, Sarah delivered her closing argument to the officer.
“Actually getting to speak during a legal proceeding, instead of just observing, was incredible,” said Sarah. “It was really empowering to be trusted with such an important moment in someone’s life, and also reassuring to have Professor Medved right there in the interview with me after having helped me prepare and rehearse the statement!”
After Sarah’s closing argument, all that was left to do was wait. Despite requirements from Congress that her case should be decided quickly, the Clinic’s experience showed that Ms. S would likely wait many more months—or even years—before hearing a decision on her case.
Last week, the Clinic received notice that Ms. S’s asylum case was approved. Ms. S’s case marks the fastest decision ever received on any asylum case the Clinic has submitted.
Then, just hours later, the Clinic received notice that Mr. K’s asylum case was also approved, nearly one year after his asylum interview. With Mr. K’s case approved, his wife Mrs. K was also automatically granted asylum.
Now that their asylum cases have been granted, Ms. S, Mr. K, and Mrs. K can all live in the United States without fear of being forced to return to Afghanistan. They will be eligible to receive lawful permanent residency (their “green cards”) in one year, and eligible to apply for citizenship five years after that.
“My experience at the William and Mary Immigration Clinic was so meaningful,” said Melissa. “I know that I actually had a positive impact on my clients’ lives. It makes me smile when I think of Mr. K calling me his ‘Big Little Sister’ (because I’m taller than him but younger than him). I know my time and work was valued by Mr. and Ms. K.”
“Hearing that my client’s asylum case had been approved was the most incredible, and surreal, experience,” said Sarah. “Because students work in the Clinic for at most two semesters and USCIS usually operates on a timeline far longer than that, I’d gotten very used to the idea that I wouldn’t see the results of my work during my time in the Clinic. But because of the unusually quick turnaround for this asylum case, I got to share the news with Ms. S in an email that contained a lot more enthusiasm than is usually warranted in a legal context. It was a wonderful way to close out my time with this client.”
“We could not be happier for Mr. K, Mrs. K, and Ms. S or prouder of the Clinic students who worked tirelessly to prepare their asylum cases,” said Professor Kern-Scheerer. “Sarah’s and Melissa’s work, and the strong relationships that they built with the clients through their time in the Clinic, is emblematic of the incredible work that our Clinic students do here every day. In this busy season as we wrap up the end of this academic year, we’re grateful for the opportunity to pause and celebrate these lifechanging outcomes.”
Victories like these are made possible by the Clinic’s generous supporters. You can make wins like this a reality for more immigrants in Hampton Roads by donating to the Immigration Clinic.
The Clinic cannot guarantee any particular results for any particular individual or particular case. While the Clinic celebrates our victories, we recognize that each case is unique. Every noncitizen should consult with a licensed attorney about their case if they are concerned about their situation or are interested in applying for any form of immigration relief. The Clinic cannot promise any particular outcome or any timeframe to any client or potential client.
*All client names and initials have been changed for confidentiality and security
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Many congrats to all involved in more great, life-saving work from the Clinic. Once again, representation, scholarship, and exceptional preparation win the day and help the system improve efficiency and deliver justice!
My only question is why hasn’t the Government issued “positive precedent” cases dealing with repetitive situations like this?
WASHINGTON — Senators were sworn in Wednesday for their third impeachment trial in four years, this time of Homeland Security Secretary Alejandro N. Mayorkas.
Three hours later, they had voted along party lines to dismiss both counts against Mayorkas.
House Republicans, who say Mayorkas has failed to fulfill his duties in upholding immigration law, pushed for a full Senate trial of the case against him. Senate Democrats called the allegations baseless.
. . . .
“Today’s decision by the Senate to reject House Republicans’ baseless attacks on Secretary Mayorkas proves definitively that there was no evidence or Constitutional grounds to justify impeachment,” Department of Homeland Security spokesperson Mia Ehrenberg said in a statement. “It’s time for Congressional Republicans to support the department’s vital mission instead of wasting time playing political games and standing in the way of commonsense, bipartisan border reforms.”
Ian Sams, a White House spokesperson, added that “President Biden and Secretary Mayorkas will continue doing their jobs to keep America safe and pursue actual solutions at the border.”
Senate Majority Leader Charles E. Schumer (D-N.Y.) sought to accommodate the wishes of Republican colleagues in agreeing to a period of debate before moving to dismiss the case against Mayorkas.
Engaging in a full trial “would be a grave mistake and could set a dangerous precedent for the future,” he said, urging colleagues to save impeachment “for those rare cases we truly need it.”
Schumer said the first impeachment article — for “willful and systemic refusal to comply with the law” — does not allege conduct that rises to the level of a high crime or misdemeanor and is therefore unconstitutional.
After breaking to discuss how best to proceed, Republicans began stalling by initiating a series of increasingly far-fetched motions, which failed:
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Read Andrea’s full report at the above link.
I’ve often expressed doubts about whether Mayorkas is the right person for the job at DHS. This has been based primarily on his failure to stand up for and effectively implement the legal and moral right to seek asylum, at the border and in the interior, and his lack of leadership and creativity in addressing backlogs at DHS. But, that’s hardly a basis for impeachment.
The GOP is a party of insurrection and lawlessness, particularly in their attempts to eradicate the rights of asylum seekers, led by a man with absolutely no respect for the rule of law except where it personally benefits him. The GOP House has failed to constructively address a number of important governance issues, including Ukraine aid, while finding time for this wasteful nonsense. For the scofflaw GOP to pursue frivolous charges of impeachment against Mayorkas for not “complying with the law” has to be one of the greatest examples of “chutzpah” in recent political history.
Angel of Death Artist: Evelyn De Morgan 1880 Public Realm The Angel of Death (“AOD”) comes for another asylum seeker at the border. American border policies have needlessly and heedlessly created “full employment” for the AOD!
Arelis R. Hernandez, Mariana Dias, Danielle Volpe report from Eagle Pass, TX for WashPost:
“If they’ve been in the water awhile, their skin gets pruned and webby and starts to peel off. Their eyes, nose and mouth get swollen,” [Sgt. Aaron] Horta said with a far-off look in his eyes. “For a while, I couldn’t sleep.”
By the end of 2022, Horta had recorded 225 deaths. He said it bothers him when no one claims a body, so he tries to do what he can. This past Thanksgiving, 11-year-old Cristal Tercero Medrano of Nicaragua drowned while wearing a bright-yellow Tweety Bird sweater. Horta worked with Border Patrol agents to identify her. Not long after, they found the girl’s family. Relatives sent in a photo of Cristal wearing the same yellow sweater.
“I get mad, as the father of a little girl,” Horta said. “There should be a process that isn’t the river. It gets to me, but I have to be a professional.”
. . . .
As she swiped through the images in her photo album, she landed on one of a boy in his late teens who had been in the river so long that the current had wiped the features of his face away. In another, the braces inside the mouth of a sun-scorched child were still visible. Behind [Justice of the Peace Jeannie] Smith were rows of folders detailing each death.
“River. River. Ranch. Ranch,” she said as she thumbed through the files. “John Doe. Jane Doe. John Doe. Fetus, the mother gave birth at the river, but the baby didn’t survive. They come from everywhere. I say a little prayer for each one.”
. . . .
“There’s no dignity in this,” [forensic scientist Kate]Spradley said. “But this is what our state deems acceptable.”
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As for the total fiction that immoral politicos dishonestly present (and the “mainstream media” too often mindlessly and uncritically repeats) that “deterrence — even by death” will stop forced migrants from seeking legal refuge:
[Evelin Gabriella] Gue [of Guatemala] said she and her relatives are still struggling with denial and hoping that the body Texas officials found was not her mother. They want her home, if for nothing more than to be absolutely sure it is her as they grieve. Consular officials have confirmed to the family that it is her body, though they have not submitted DNA for further verification.
Cú Chub’s family is still in debt. To pay off the loan they took out for her to migrate, they may soon make the same journey that cost them their matriarch.
So much for the deadly, irresponsible “bipartisan BS” spouted by politicos who have lost their humanity and their sense of decency!
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Everyone should read the stomach-churning complete report at the link.
It has lots of dramatic color photography, so folks can get “face to face” with this preventable human carnage. These are the truths and consequences that should — but aren’t —being heard and heeded as border enforcement is discussed.
For the same amount, or likely much less, that governments at all levels are squandering on uncoordinated “proven to fail, illegal, gonzo enforcement and false deterrence,” that enriches cartels and human smugglers while killing legitimate refugees and harming our national psyche, the U.S. could build a first-class, timely, legally compliant, processing and resettlement system for forced migrants here and abroad that would reduce unnecessary border tragedies while capitalizing on the positive power of migration in today’s world.
I realized that it was really I who needed orientation and guidance from Juan Carlos. That if I wanted to understand the border, and what to do about the border, it was Juan Carlos, or anyone who was coming across for that matter, who knew the answers. He knew why he had to leave his land. He knew the specific injustices of Guatemala, which for more than a century has been a target for “unvarnished” U.S. imperialism.
[John] Bolton could have probably talked glowingly about Guatemala and the United Fruit Company, the 1954 CIA-instigated coup, a 36-year military dictatorship—supported and trained by the United States—that was behind the mass killing of civilians. Maybe being discombobulated was OK, that kind of knowing that there isn’t a clear-cut sheet of bullet-pointed answers to evolving situations around the world that uproot people, but rather an ability to courageously look across borders and actually be curious and engaged, and to listen to what people are saying. That was my indirect lesson from Bolton: maybe it is by listening, rather than talking, that debates are actually won.
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I encourage everyone to read Todd’s complete article at the link.
John Bolton Former National Security Clown — Always reassuring to know that “Johnny B” remains arrogant, unapologetic, outrageous, unaccountable, immoral, and wrong about just about everything! Republished under license.
Due Process is a true team effort! PHOTO: Tahirih Justice Center
Maria Daniella Prieshoff writes on LinkedIn:
Maria Daniella Prieshoff Managing Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Want to level up your #advocacy skills for your #genderbased #asylum cases in #immigrationcourt?Want to learn from a real immigration judge the basics of presenting your case before the immigration court?Then join me for Tahirih Justice Center’s”Advancing Justice: Gender-Based Violence Asylum Litigation in Immigration Court” webinar series!
Part 1 of the series is on April 23, 12-1:30pm. It will focus on the case law and strategy you’ll need to present your best gender-based asylum case, including how to handle credibility, competency, and stipulations.Monica Mananzan from CAIR Coalition will join me in this webinar. To register for Part 1: http://bit.ly/3xvwPyt
Honorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges
Part 2 of the series is on April 25, 12-1:30pm. Retired Immigration Judge Lisa Dornell will explain the best practices of litigating gender-based asylum cases before an immigration judge, as well as recommendations for direct examination, cross-examination, and how to handle issues with a client’s memory, trauma, or court interpretation.To register for Part 2: https://bit.ly/3PXJqRn
Please share with your networks!Our goal for this webinar series is to help pro bono attorneys and advocates enhance their the advocacy for #genderbasedviolence to have #immigrationjustice – we’d love for you to join us!
Wonderful learning opportunity! Many thanks to everyone involved in putting it together!
Litigating gender-based asylum cases can still be an “ordeal” at EOIR, despite some decent precedents. Learn how to avoid this fate for your clients! 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Wonder whatever happened to the “gender-based regulations” that Biden ordered to be drafted by Executive Order issued shortly after taking office? At this point, given his “lobotomized/running scared/retrograde/Trumpy Lite” position on asylum seekers and immigrants’ rights, probably just as well that they died an unheralded bureaucratic death (just as similar assignments have in the last three Dem Administrations over a quarter century).
Outside of a few Immigration Judges, who, because they understand the issue and have worked with asylum-seeking women, would never be asked anyway, I can’t really think of anyone at DOJ who would actually be qualified to draft legally-compliant gender-based regulations!
GOP are misogynists. Dem politicos are spineless and can’t “connect the dots” between their deadly, tone-deaf policies and poor adjudicative practices aimed at women of color in the asylum system and other racist and misogynistic polities being pushed aggressively by the far right! While, thankfully, it might not “be 1864” in the Dem Party, sadly, inexplicably, and quote contrary to what Biden and Harris claim these days, it’s not 2024 either, particularly for those caught up in their deadly, broken, and indolently run immigration, asylum, and border enforcement systems!
As safe corridors for migration disappear, more people risk their lives crossing the U.S.-Mexico border. And more people die. A new report by the nonprofit No More Deaths, along with a searchable map and database, documents the increasing number of migrant deaths at the border in New Mexico and far West Texas. Until now, not much research has been done on the deaths of people migrating through this section of the border. The project was led by Bryce, a No More Deaths volunteer (who asked that we not use his last name because the Far Right has recently been targeting the group). He, along with several others, have created the most comprehensive database to date of deaths in the Border Patrol’s El Paso Sector, which includes New Mexico and two counties in Texas, El Paso and Hudspeth. The report covers 15 years, from 2008 to 2023, and it shows many disturbing trends, including the acceleration of deaths that has accompanied “prevention through deterrence,” the U.S. government’s strategy implemented in the 1990s to push migrants into more remote, dangerous crossings. That strategy is now morphing into something all the more tragic as people, increasingly women and children, are barred from accessing asylum and are dying at the doorstep of American cities and towns. In this Q&A, Bryce talks about documenting these deaths, and the discoveries that both shocked and angered him in creating this new report.
Why did you study this particular part of the border in New Mexico and far West Texas?
A couple of years ago, a few of us started getting interested in what’s happening in New Mexico, and whether there’s any need for humanitarian aid out there, just because we hadn’t really heard anything but assumed there must be something happening out there. Quickly, we noticed that there was not much data in general about the area. So I started doing public records requests. And pretty quickly, just with the first batch of data, we got about 20 deaths for 2022. We went to some of those locations to see if we’d see trails. And while we were checking out some of these locations, we found human remains right across the street from a cemetery and about 50 feet from a main road in Sunland Park [New Mexico]. It was not a remote place. It was right in town. So we started looking at the Sunland Park Fire Department’s social media page, and quickly realized that there was a lot happening and quickly. And then 2023 ended up being this record deadly year for the area.
It’s shocking that you found a dead person right there in the middle of Sunland Park. Can you tell me more about this person? Were they identified? How long had the person been there? And how could this have been missed by people who live there?
He was later identified as a man from Colombia. [His name was Johan Orozco Martinez, age 36.] He had been there for a couple of days. I’m not joking when I say he was right across the street from the Memorial Pines Cemetery, and near the shoulder of the road. Many cars drive this road, but I think typically people look toward the cemetery, and I guess they didn’t see him because they were looking in the other direction. He was in his 30s and so older than many of the usually young men you see, for instance, crossing through southern Arizona.
Two findings that really stand out to me from your report are the number of women who have died, and how increasingly people are dying within city limits and no longer just in remote areas that are hard to access. I mean, you found a person in the middle of Sunland Park. What’s going on, do you think?
The dynamics of migration are complex. But one thing that seems pretty clear is that the asylum policies in the last few years have led to an increase in some of these deaths, just from people trying to get asylum and being prevented either by metering or by turnbacks. And then feeling they have no choice but to cross through the desert. A lot of people who are crossing are older, they’re women, they’re people with health problems. The demographics, we found, were much different in the El Paso sector than in southern Arizona, with people being older and more than 50 percent of the deaths in 2023 being of women, which is unusual.
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When did the deaths start increasing? And has the increasing militarization of the border and Operation Lone Star in El Paso contributed to these deaths?
Up until 2015, there were very few deaths in this area. But especially since 2018, the deaths have just been ramping up every single year. We were in New Mexico watching Operation Lone Star soldiers put up a barbed-wire fence between New Mexico and El Paso in an area where a lot of people cross. So once you’re in the United States, even crossing into Texas from the New Mexico side has become more deadly. And you can see National Guard in El Paso patrolling and pushing people back. The more enforcement, the more the deaths increase. In El Paso, there are what I call “moats” because if people climb the border wall, there’s an irrigation canal right on the other side, which at times can be moving very quickly. Then beyond that there’s multiple highways and more canals. So if someone is being chased by Border Patrol or Operation Lone Star, there are multiple deadly obstacles.
In 2022 there was a two-week period when 15 people died in the canals, one right after the other. This was during irrigation season in El Paso. Water is released from a reservoir in New Mexico into the canals and the river to irrigate farmland further east of El Paso. When that happens, the water can be going like 20 miles per hour. Unless somebody physically rescues you, there’s no way of getting out once you’ve fallen in. I watched a news broadcast in El Paso where they made a public service announcement about drowning deaths in El Paso, saying like, “Irrigation season is here, stay away from the canals, watch out for drowning.” But if you read all the autopsy reports, it’s almost all migrants dying. Because the medical examiner doesn’t flag whether it’s a migration-related death, you end up getting these weird statistics about drowning deaths being on the rise in El Paso. And so they’re directing these public safety messages toward El Paso residents who are actually in very little danger of drowning. And the people who are in danger of drowning, the migrants, have no idea.
Did you also find an increase in the deaths of children?
Definitely, yes. In 2018, two eight-year-old Guatemalan kids died. There’s a lot of teenagers dying, crossing the border wall, a lot of them drowning in El Paso city itself. For instance, there was a Russian man and his teenage daughter who both fell into a canal and drowned. They were running from Border Patrol agents. I believe that happened in 2021. We saw fewer deaths of younger people in New Mexico.
You also found that Customs and Border Protection is significantly undercounting deaths related to enforcement. Can you talk about this finding?
CBP is supposed to keep track of migrant deaths and CBP enforcement-related deaths, but we found that the agency is severely undercounting them. There’s been a lot of documentation in the past, talking about that fact, but there hasn’t been a whole lot of quantifying that undercount. Aside from the Arizona data that the Pima County Office of the Medical Examiner and Humane Borders have reported. For example, in one year we found 39 deaths, while CBP reported only 10 deaths.
We looked at investigator reports and so we were able to read the narratives, and learn circumstances around the deaths. We were able to see if someone was chased by Border Patrol, either on foot or by vehicle, or if they died in Border Patrol custody. We found that Border Patrol had tried to underplay some of these deaths.
We found that 15 percent of all migrant deaths in the El Paso sector were caused directly by Border Patrol due to chases or use of force, also due to custody deaths, or falls from the border wall. Humane Borders doesn’t track deaths related to Border Patrol enforcement. So this is the first instance that I’m aware of, where we are able to quantify the CBP undercount of Border Patrol-related deaths.
For 2022, for instance, we found 16 deaths that should have been reported by CBP as CBP-related deaths. CBP had only reported six of those deaths. Of the 16 we found, I think it’s still an undercount, because a lot of the investigative reports use vague or passive language about a person “jumping into the canal,” for instance. So you don’t know if the person was actually chased. So we only included cases where it’s very explicit.
What surprised you most in working on this report?
It’s really just shocking how close to help a lot of people died. I’m used to southern Arizona, where the terrain and trails are very remote. But we found people dying across the street from the cemetery, people dying a short walk from the Dollar General store. We’ve had this narrative of “prevention through deterrence” for the last few decades, which has pushed people away from cities into remote areas where they’re more prone to dying from heat exposure or something else. But now the border is militarized to the point where even Sunland Park, this suburb of El Paso, can be as deadly as the middle of nowhere in southern Arizona.
Last June, for instance, something like 40 percent more people died in Doña Ana County in New Mexico than the entire state of Arizona. Most of these deaths were close to the highway or close to a town. It’s a dynamic that has not really been studied. And the fact that it’s been happening for years without anybody really noticing is really scary.
With these findings, are No More Deaths and other humanitarian groups mobilizing to do search-and-rescue and water drops in this area?
Like Texas, much of the land in New Mexico where people are dying is privately owned land, so it’s difficult to access for humanitarian groups.
We’ve been going there about once a month for the past year to try to organize some support. There’s a group that doesn’t have a name yet that we’ve started to work with, that’s putting out water in some of these areas. There’s another group from southern Arizona that has moved over to New Mexico to search for remains in the desert.
We’re hoping the news will spread and that others will join to help. We have some money to help out some groups that are forming. We’re really hoping that groups will form on their own for search-and-rescue and putting out water. Because right now, Border Patrol is the only game in town if you call 911 as a migrant. And Border Patrol has a horrible track record of actually helping anybody.
To get involved, learn more, or support humanitarian efforts, contact No More Deaths here.
A complete lack of accountability for the misguided politicos and bureaucrats who are dishonestly pushing these immoral and ineffective policies without “owning up” to both the known deadly consequences and the lack of long-term “deterrent” value (even assuming, as I do not, that effective deterrence could justify immoral and illegal policies) of the actions they are touting; and
A complete abdication of professional journalistic standardsand performance from the many members of the so-called “mainstream media” who fail to include in each report on draconian “border control” proposals and “policies” the deadly, well-documented human consequences of those policies and who provide a toxic forum for politicos and supposed “pundits” spouting myths andnativist propaganda about “border enforcement,” without presenting experts like Melissa, Todd Miller and many others who have actual experience with the unending trauma and futility caused by our current misguided, often flatly illegal, and clearly immoral approach to “border enforcement.”
While most of the debate over immigration focuses on the U.S.-Mexico border, one of President Joe Biden’s most effective policies so far has occurred elsewhere ― at airports.
For a little over a year, Biden has used what’s called “parole” authority to collectively allow up to 30,000 vetted Cubans, Haitians, Nicaraguans and Venezuelans per month into the country, mostly via air travel, for a temporary two-year window.
The program is based on the authority held by the federal government under the 1952 Immigration and Nationality Act to grant temporary admission to foreigners on a “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” And, the Biden administration touts, it has been accompanied by drops in the number of nationals from each of these countries who’ve crossed the U.S.-Mexico border on foot.
But to hear some right-wingers talk about it, the “CHNV parole” program — the name an acronym for the nationalities it encompasses — is a secret, treasonous endeavor that utilizes government-funded charter flights to transport “illegal” migrants into the United States. None of that is true, but that doesn’t seem to be the point.
“I don’t know of anyone in Congress who knew this!” exclaimed Sen. Ted Cruz (R-Texas) on a podcast episode, just 14 months after Biden himself announced the CHNV parole program during a public press briefing and despite regular publications of data on the program by the Department of Homeland Security.
The false accusations of secret taxpayer-funded charter flights ferrying unvetted migrants to new lives in the United States plays into Republican attempts to cast immigration issues as a major crisis — and one on which Democrats are failing — ahead of the 2024 election.
. . . .
The precedent to the CHNV parole program was introduced in October 2022, when the Department of Homeland Security created a parole program for Venezuelans that was modeled on the Ukrainian program, requiring applicants to have a U.S.-based sponsor who’s financially able to support them and to pass vetting and background checks. In January 2023, the White House announced the program would expand to include Cuba, Haiti and Nicaragua.
Individuals from those four counties who meet the requirements and haven’t attempted to cross the U.S.-Mexico border between ports of entry are allowed to fly from their home countries into the United States rather than appearing in person at land border crossings.
Since January 2023, more than “386,000 Cubans, Haitians, Nicaraguans, and Venezuelans arrived lawfully and were granted parole under the parole processes,” U.S. Customs and Border Protection wrote in a February 2024 update.
“There’s no doubt that the CHNV program is by far the largest-scale parole program that any administration has done in decades,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council, a research and legal advocacy organization.
And data supports the administration’s claim that the parole program, as part of a larger package, has helped discourage “irregular” migration.
As the Cato Institute reported in September, illegal entries by Venezuelans fell 66% from September 2022 to July 2023 and from December 2022 to July 2023, illegal entries fell 77% for Haitians, 98% for Cubans and 99% for Nicaraguans. Compared with peaks in CHNV numbers in 2021 and 2022, the report added, July 2023 arrests for those four nationalities were down 90%.
“There has not been a single month where unlawful entries of the four countries combined has been above the level it was in December 2022,” Reichlin-Melnick said.
The White House announced the policy as part of a package explicitly meant to “increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry.” The Biden administration grouped the program with others meant to encourage “legal pathways” into the United States ― such as increased refugee admissions and asylum opportunities in other countries ― and alongside harsher border enforcement for migrants who broke the rules.
Naree Ketudat, a spokesperson for the Department of Homeland Security, told HuffPost in a statement that the CHNV parole process was part of a strategy to “combine expanded lawful pathways with stronger consequences to reduce irregular migration, and [has] kept hundreds of thousands of people from migrating irregularly.”
And yet many on the right have misrepresented ― or simply lied about ― what the parole program is, playing on anxieties about race and national identity to paint it as part of a supposed scheme by Democrats to overwhelm the country with new residents or somehow displace American citizens.
. . . .
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Read the complete article at the link.
Beyond the barrage of racially-driven GOP lies, Dems have failed to capitalize on the success of Biden’s efforts and its benefits to the U.S. economy. Significantly, rather than just “moaning and groaning” about the so-called “immigration problem,” the Biden Administration actually took innovative action to address the situation.
The GOP claim that the program is “secret” is a blatant lie! Yet, you would be hard pressed to find any recent examples of Biden, Harris, their campaign officials, or Dem politicos touting the success of the parole program or the critical role of immigration of all types in the continuing strong performance of the U.S. economy.
You would would be much more likely to come across disingenuous statements blaming the GOP for not giving Biden “authority” to close the border, violate human rights, inflict more needless cruelty, and otherwise dehumanize asylum seekers at the Southern Border. In this way, Dems unwisely are playing along with the GOP nativists and giving them “cover” for their lies.
I’ll admit to initially being somewhat skeptical about the parole program, mainly because it could be seen as deflecting attention from much needed reforms and revitalization of existing legal programs for the admission of refugees and asylees that had been intentionally “kneecapped” by the Trump Administration.
Of course, no “pilot program” like this — particularly one with nationality restrictions and somewhat arbitrary numerical limits — can solve overnight problems allowed to fester for years. Yet, the parole program has demonstrated important principles that should form the basis for more durable legislative reforms of our legal immigration system:
Given realistic options, most individuals would choose to be pre-screened and apply from abroad (i/o/w “If you build it, they will use it!”);
Private sponsorships can play a key role in the selection, welcoming, resettlement, and integration process for legal immigration;
Allowing immigrants to work immediately upon arrival — rather than forcing them into an overburdened and over-bureaucratized work authorization process — benefits everyone;
More robust legal immigration opportunities will reduce pressure on the border and keep cases out of the backlogged Immigration Courts.
Rather than being a “false bone of contention” in the “immigration debate,” innovations like the parole program should form an empirical basis for bipartisan legal immigration reform and expansion that will benefit our nation and those who seek to become part of it in the 21st Century.
Today [April 2] at 1:15 in the afternoon the heart of a giant of jurisprudence stopped beating. He alludes to the lawyer defending human rights, civil rights and constitutional law, the great friend of Mexico and Latin American immigrants, lawyer Peter Schey. He was 77 years old.
Schey was born in the Republic of South Africa, on March 23, 1947. He came with his parents, who emigrated to the United States. Upon graduating from high school in 1966, he applied for and was admitted to pursue a bachelor’s degree in psychology at the University of California, Berkeley, where he graduated in 1970. Additionally, in 1973 he completed his studies in law school at the California Western School. of Law.
His career as a jurist began in 1973. He practiced law at the Legal Aid Society of San Diego, where he had legal representation of low-income immigrants, until 1978, when he moved to the City of Los Angeles, where he founded the National Immigration Law Center.
Desire for justice motivated him to move from San Diego to LA
The main reason that prompted him to leave the City of San Diego was related to the arrest of Mexican activist José Jacques Medina. He had been arrested and imprisoned by agents of the Federal Bureau of Investigation (FBI).
Due to his undocumented status, the FBI handed him over to the Department of Immigration and Naturalization (INS) to immediately deport him to Mexico. Jacques Medina’s wife, Rosario Moreno, traveled from Los Angeles to San Diego to ask Schey to assume the legal defense of her husband.
He immediately accepted and took on the defense with passion and professionalism, which would last for a dozen years until in 1989 or 1990 his case was closed because Jacques Medina requested and obtained his immigration regularization through the “Amnesty Law” of 1986. During that period, the defense stopped his deportation under consideration of the defendant’s right to asylum. He argued that if he were returned to Mexico his life was in danger.
Founded legal institution of historical significance
In 1980, Schey founded and became president and CEO of the Center for Human Rights and Constitutional Law. He remained at the head of this important institution for 44 years and 4 months.
In these four decades, Schey filed Class Action lawsuits in favor of the constitutional rights of millions of immigrants from various parts of the world, but especially Mexicans and Latin Americans. I will mention three examples:
1.- In 1994, the Californian political extreme right adopted a fascist, racist and cruel policy against undocumented immigrants and created Proposition 187, which was approved by a majority of the state electorate in November of that year. This resolution denied medical care, social services and education to people suspected of having entered California irregularly.
However, the day after its approval, this ordinance was stopped in court by a lawsuit led by Peter Schey and known as League of United Latin American Citizens v. Wilson. After a severe legal battle, this very important lawsuit prevented said proposal from being implemented, which meant a major offense to the migrant community. In July 1999, Democratic Governor Gray Davis reached an agreement with leaders of pro-immigrant organizations and his lawyers and gave up appealing the decision of the Ninth Circuit Court of Appeals that had declared it unconstitutional. And therefore, this disastrous Proposition was canceled without it ever being able to be implemented.
2.- Another legal case, known under the title Flores v. Reno established a minimum standard of quality of life for undocumented immigrant children detained in the United States and recognized the Center for Human Rights and Constitutional Law as the only nongovernmental organization authorized to certify that detention centers housing any undocumented minor met the agreed minimum standards and also established the prompt release of the minors and that they could be delivered to relatives residing in the United States as soon as possible.
3.- I cannot close this remembrance of Schey without mentioning the case known as Plyler v. Doe. Schey participated in this lawsuit and it was filed because in 1977 the State of Texas ordered that in the public school system, children who did not provide proof of being citizens of the United States would have to pay the school district, to which their school belonged, one thousand dollars. or would not be allowed access to the instruction.
In 1982, the US Supreme Court ruled that ‘a state cannot prevent the children of undocumented immigrants from attending public school.’
With these three examples, among many others that could be cited, it is clear that millions of undocumented girls and boys and workers must be eternally grateful to benefactor Peter Schey because thanks to his efforts in the courts, today they enjoy legal protections.
In short, thanks to his social education, his effort, persistence and tenacity as a general of immigration laws and constitutional law, as our great colleague Peter Schey undoubtedly was, countless immigrants can enjoy a decent life.
*Juan José Gutiérrez is executive director of the Full Rights Coalition for Immigrants based in Los Angeles.
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Needless to say, I butted heads with Peter a number of times during my tenure in the Office of General Counsel at the “Legacy INS” (1976-87).I always had the greatest respect for his legal talent, courage, dedication, and persistence! He will be missed! But, his contributions to the law and the organizations he founded live on.
Paulina Vera and Alberto Benítez joined Alexander Love, a former client of the Immigration Clinic at GW Law, for his naturalization ceremony—“the happy part of immigration cases,” in Vera’s words. (Contributed photo)
Comedies often end with a wedding, and there’s a marriage in this story, but it’s not a comedy. This is an immigration story, and it ends in a naturalization ceremony, with some painful, dramatic scenes along the way. It begins in the Soviet Union with a gay boy called Sasha, and ends in the United States with a gay man named Alexander. They’re the same person, with a lot of credit for that transformation due to students and faculty of the Immigration Clinic at GW Law.
Alexander Love, as he is now known, was born in Ukraine when it was still part of the Soviet Union. His family moved to suburban Moscow, where he grew up and was expected to become highly educated. As a young teen, he realized he is gay, but he came out only to a few trusted friends and, aged 18, began serving in the Soviet Army. After being discharged in 1991, just as the Soviet Union was breaking apart, he went back to school.
“I was artistic and the majority of my subjects were things like physics, chemistry and mathematics,” Love said. “The only classes I passed were English classes.” Following his passion for working with textiles, he quit school and began sewing clothes for himself and for friends who ordered garments from him. He also taught English.
In these years just after the fall of the Berlin Wall, the Soviet Union dissolved and Mikhail Gorbachev, then the Russian president, instituted major reforms. Gay bars and clubs opened (and have since closed) and Western values were embraced. Love befriended Americans living in Moscow and realized how different his life was from theirs. Though Russian society was more relaxed in this period, it could still be very difficult and even dangerous for LGTBQ individuals. In 1998, Love visited the United States for the first time, returning in 1999 and again in 2000, when he first came to Washington, D.C.
“I had been to Spain a few times, so I knew how different it was for gay people outside of Russia,” he said. Gay life at home, even in the more open climate at that time, was risky. “Verbal and physical harassment was always there. You could be stopped on the street or followed by a police car, mostly for the bribes. Sometimes they put some kind of powder in your car.” In taxis, on public transportation, even in gay clubs, he said, people were harassed just because they looked different.
Today, Love prefers not to dwell on the worst abuses he suffered. In 2001, he came to GW Law’s Immigration Clinic for help with his asylum application. Applicants fleeing persecution of LGBTQ people in their home countries need to prove past persecution or that they have a well-founded fear of persecution. Though ill treatment of LGBTQ individuals in Russia is well documented, Love’s application was denied.
Faculty and students in the Immigration Clinic didn’t give up. They assisted him in getting a work permit that allowed him to stay in the United States while they worked on his case. Because he was a clothing designer who had worked with singer Mariah Carey and other persons of note, he was approved for a work permit based on his special skills. But fate quickly intervened.
“Unfortunately,” Love said, “I was diagnosed with HIV, and at that time, you could not apply for a work visa if you had HIV.” (A year later, the law was changed.)
Years passed, and GW Law students came and went with the natural rhythm of matriculation and graduation, but professor Alberto M. Benítez, director of the Immigration Clinic, was a steady presence. So was the man Love said brought stability to his life, his boyfriend (now husband) Michael Love. When same-sex marriage was legalized in 2013, they had been together for eight years. Benítez told Alexander (whose last name then was Sozonov) that if he and Love were married, the clinic could work on obtaining a marriage-based adjustment to his request for permission to remain in America. The partners eagerly wed, but to get their marriage recognized as legitimate in the eyes of the immigration system, both men had to make many court appearances.
A high-stakes version of ‘The Newlywed Game’
Marriage to an American citizen did not automatically mean Love could be granted status as a permanent resident and issued a green card. Sydney Josephson, J.D. ’14, was one of the students who worked on his case. One of her significant contributions to Love’s case was filing a motion to get an approved marriage-based immigrant petition establishing that his union was made in good faith.
Sydney Josephson, J.D. ’14, is flanked by Alexander Love and Michael Love in April 2014 on the day of their interview in support of their marriage-based immigrant petition, which was approved soon after. (Contributed photo)
The process of gaining such recognition can be tricky, according to Josephson, who now practices immigration law with the Fragomen firm in Atlanta. “Sometimes they’ll put people in separate rooms,” she said, “and ask questions like, ‘What color is your fridge?’ One person will say white and the other person will say black. And immigration officials say, ‘This isn’t a good faith marriage. You don’t live together.’”
But Love’s application went smoothly. He and his husband did not go through interviews in separate rooms. They had been together for so long by then that there was little doubt about the nature of their marriage.
Some applicants see less happy results, Josephson said. “A colleague told me about a woman who was asked, ‘What does your husband wear to sleep in?’ She said, ‘Pajamas,’ and the man said, ‘I sleep in gym shorts and a T-shirt.’ And that was one of the reasons they were denied because the officer didn’t think they actually lived together. But I think someone who grew up in another country may think of sweatpants and T-shirt as pajamas.”
Working in immigration law can be extremely rewarding, according to Josephson, because it feels good to help people like Love.
“He’s an amazing person,” she said. “He has a beautiful relationship with Michael, and they’re wonderful people.”
Love was granted status as a permanent resident of the United States in 2016. He enjoys working as a textile librarian for the Washington Design Center.
“It’s a library, but instead of books you have tons of fabrics, trims, leathers and wallpapers,” Love said. “You have to know where everything is at and how to handle them. I’m very happy in this position.”
Clients from around the world
Alumna Paulina Vera, B.A. ’12, J.D. ’15, is a professorial lecturer in law and a supervising attorney of the Immigration Clinic. Since returning to GW seven years ago, she has supervised the students working on Love’s case and others.
“I actually was a student in the Immigration Clinic in my third year at GW Law,” Vera said. “I went to law school because I wanted to be an immigration attorney. I’m the daughter of two immigrants. My mom is from England; my dad, rest in peace, was from Peru. I grew up in Tucson, an hour away from the U.S.-Mexico border. So, immigration has always been a pretty big part of my personal life.”
The Immigration Clinic at GW Law started in 1979 and has helped countless people seek asylum or resist deportation. Clinic members have assisted victims of trafficking as well as DREAMers and youth covered by the Deferred Action on Childhood Arrivals (DACA) program. They have worked with clients from El Salvador, Ghana, Mozambique, Nigeria, Indonesia, China and elsewhere. Recently, they helped a returning client—a woman they successfully represented in her application for asylum in 2018—bring her four children to the United States from Honduras.
Benítez and Vera currently have a cert petition before the U.S. Supreme Court, asking it to review the decision of the 4th U.S. Circuit Court of Appeals in the case of Moisés Cruz Cruz, an undocumented Mexican man living in Virginia. During a routine traffic stop, a police officer asked Cruz his name. In a nervous moment, Cruz combined his own name with his brother’s name. Though he immediately corrected his mistake and wrote his correct name and date of birth on a piece of paper, the officer charged him with false identification, a misdemeanor. On the advice of a lawyer, Cruz entered a guilty plea, and as a result he is now facing deportation. Three of his children are U.S. citizens.
“To me,” Vera said, “this case is very indicative of the overarching immigration consequences that fairly minor criminal convictions can have. Are we going to separate a man from his family of five who has a partner who’s not from Mexico, so could not go back to Mexico with him, over something that stemmed from a traffic stop?”
Benítez said the Immigration Clinic staff unsuccessfully tried, through a different lawyer, to get Cruz’s guilty plea withdrawn. The case hinges on the question of whether Cruz committed a “crime involving moral turpitude,” which justifies deportation in immigration cases. Such crimes are typically defined as depraved acts involving child pornography, rape and other violent crimes such as murder.
“He did plead guilty, and he is in violation of the Virginia state code,” Benítez said. “We’re not disputing that. But is it an immigration violation? We hope that the Supreme Court agrees with us that it is not. State criminal law and federal immigration law are two different things. If the Supreme Court agrees with us, Moisés would be eligible to apply for—not necessarily get—a remedy that we call an immigration law cancellation of removal. That is for long-term residents of the United States who have no status, who establish ties to the United States and establish that they are good citizens.”
‘These folks are not criminals’
Growing up in Buffalo, New York, as the child of Mexican parents, Benítez never discussed immigration with them. His interest in immigration law was piqued when he was in college and learned that applications for asylum were processed with political rather than humanitarian concerns uppermost at play. He went to law school during the Reagan years and has taught at GW since 1996. After practicing immigration law for decades, Benítez said he knows at least one thing for sure.
“There is no border crisis,” he said. “These folks are not criminals. They do not bring disease. They are people trying to save themselves and save their kids. And the way that certain elements in our society demonize them is just plain wrong.”
There is never a shortage of clients at the Immigration Clinic, he said. On the contrary, they sometimes have to make wrenching decisions about which cases to take and which to decline. On average, he estimates that the clinic helps about 50 people per year, including the family members of clients. The clinic’s efforts on behalf of clients, Love among them, can stretch over several years.
“As long as the clients are prepared to continue fighting,” Benítez said, “we are prepared to continue fighting. The student attorneys that I’ve supervised, including Paulina, are the best. Whatever they lack in experience, they make up for in zeal, intelligence, professionalism and empathy.”
Love’s gratitude for the students who helped him remains undimmed.
“The students were the stars of my case,” he said. “I should frame their pictures. I’m thankful to all of them.”
The closing scene in Love’s immigration story takes place at his naturalization ceremony in 2020. Benítez and Vera were present to congratulate him on becoming a U.S. citizen.
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I was privileged to have the GW Law Clinic appear before me in the “Legacy” Arlington Immigration Court during my 13 year tenure there. Professor Alberto Benítez is a long-time friend, neighbor, and fellow dog walker! I’m also proud that Professor Paulina Vera is an alum of the Arlington Internship Program and a “charter member” of the New Due Process Army. Additionally, Attorney Sydney Josephson, JD-‘14, instrumental in this case, now practices with Fragomen, a firm where I was a partner from 1992 until my appointment as BIA Chair in 1995.
Congrats to the GW Clinic on 45 years of spectacular success, leadership in the legal profession, and many lives saved!
“On April 1, 2020, the Department of Justice (“the Department” or “DOJ”) published an interim final rule (“IFR”) with request for comments that amended its regulations relating to the organization of the Board of Immigration Appeals (“Board”) by adding two Board member positions, thereby expanding the Board to 23 members. This final rule responds to comments received and adds five additional Board member positions, thereby expanding the Board to 28 members. The final rule also clarifies that temporary Board members serve renewable terms of up to six months and that temporary Board members are appointed by the Attorney General. DATES: This rule is effective on [April 2, 2024].”
[Note: Applicants are encouraged to apply NOW on the theory that spillover from the applicant pool for the current openings here and here might be considered for the additional five slots.]
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
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Ironically, particularly for those of us directly affected, the BIA had 23 authorized members a little over two decades ago!
Then, the infamous “Ashcroft purge” cut that number back to 12, citing bogus “efficiency grounds” to cover a scheme that ousted those BIA Judges who consistently stood up for due process, fundamental fairness, and migrants’ legal rights!
That sent the EOIR system into a tailspin which shook the Circuit Courts when almost immediately flooded with a tidal wave of deficient EOIR decisions, particularly relating to erroneous “adverse credibility rulings.”
The emasculated BIA, of course, rapidly proved too small to function in even a minimally competent manner. To “cover up” the adverse effects of Ashcroft’s political scheme, and to conceal the institutional failures of DOJ to protect individual rights of migrants, particularly those of color, Administrations of both parties resorted to the “gimmick” of quietly appointing “Temporary Board Members” from among BIA senior staff to keep the ship (sort of) afloat. Temporary Board Members were not allowed to vote at en banc conferences, had uncertain tenure, and had every incentive not to dissent or otherwise “rock the boat” if they wanted to compete for future “permanent” vacancies. (Although, arguably, the whole point of the Ashcroft purge was that all BIA judges were essentially “temporary” in the eyes of a GOP AG).
Over the decades following the purge, the DOJ gradually added permanent BIA Judge positions, without ever publicly acknowledging Ashcroft’s politicalscheme and its debilitating effects.
Pass Immigration 101? Understand “mixed motive” and how it should be used to protect, not reject? Willing to stand up for due process and the legal and human rights of migrants? Prepared to promote justice and resist the evil culture of “any reason to deny?” We need YOU on the BIA today! “Revolution by evolution” is a crock. We need an aggressive “Due Process Revolution” from within EOIR NOW! Public Domain
United States Court of Appeals For the First Circuit
No. 23-1443
AMGAD SAMIR HALIM KHALIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.
March 29, 2024
RIKELMAN, Circuit Judge.
. . . .
We turn, then, to Khalil’s argument that the factual record compels the conclusion that religion was at least one central reason for his beating. We review the factual finding
– 15 –
against Khalil on this issue under the substantial evidence standard. Pineda-Maldonado, 91 F.4th at 87.
Here, a reasonable adjudicator would be compelled to conclude that Khalil’s religion qualifies as a central reason for the beating. Khalil’s attackers demanded he convert, beat him when he refused to do so, demanded again that he convert, and beat him more intensely when he again refused. The attackers’ own statements show that, regardless of whatever else prompted the beating, Khalil would not have been harmed had he agreed to convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021) (deeming perpetrators’ statements essential to the nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st Cir. 2013) (determining persecutors were driven by a religious motive that they “recognized and gave voice to” during their attack of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008) (explaining that perpetrators’ statements “are a crucial factor” for determining the central reason for harm); cf. Esteban-Garcia v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus because persecutors “didn’t say anything” about the applicant’s protected ground).
The attackers’ demands that Khalil convert to another faith and their increased violence in response to his refusal to do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), which the IJ relied on in finding that the beating was
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the result of a personal dispute only. In Sompotan, we held that the record did not compel the conclusion that those who robbed the petitioners and their restaurant while yelling “Chinese bastard, crazy Christian, crazy Chinese” were motivated by religious and racial animus rather than by a desire to rob because “[t]he fact that [robbers] would stoop to the level of using racial slurs is, unfortunately, not surprising.” 533 F.3d at 70. By contrast, the attackers here did not make just a passing reference to Khalil’s religion. Rather, they made religious demands on him during the attack and beat him more vigorously when he refused to cede to those demands.
The arguments the government offers as to why substantial evidence supports the agency’s no-nexus determination do not alter our conclusion. The government emphasizes that Khalil recounted his attackers’ demands that he convert only in his asylum interview and written declaration attached to his asylum application, but not in his testimony before the IJ. But in evaluating whether substantial evidence supports the agency’s conclusion, we are tasked with reviewing “the record as a whole.” Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil described the beating exclusively during the government’s cross-examination, and the government strategically asked him only one question about what his attackers said during the beating: Did they reference the blood test results? The framing of the
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government’s questions on cross-examination does not change our assessment of the record as a whole. The government also contends that, because Khalil testified that the imam had no issue with him until the imam found out about the blood test results, religion did not motivate the attack. But that argument ignores the attackers’ own words and actions.
For all these reasons, we find that the record compels the conclusion that Khalil’s religion played more than an incidental role in his beating. We therefore grant the petition for review as to Khalil’s asylum claim premised on mixed-motive persecution.5
. . . .
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Many congrats and much appreciation to the NDPA team involved in this litigation!👏🙏
Oh yeah, the BIA also screwed up the CAT analysis! 🤯
This is another classic example of deficient scholarship and an “any reason to deny culture” that Garland, inexplicably, has allowed to flourish in some parts of EOIR on his watch!
This is the REAL “immigration crisis” gripping America, and one that obviously could be solved with better-qualified judges and dynamic due-processed-focused leadership at EOIR!
“Revolution by evolution” is a meaningless piece of bureaucratic gobbledegook I sometimes heard during Dem Administrations to justify their often gutless, inept, and dilatory approach to due process at EOIR! What total poppycock! EOIR needs a dramatic “Due Process Revolution” from within! And, it needs it yesterday, with lives and the future of American justice on the line!
There’s an opportunity, open until April 12, 2024, to become a BIA Appellate Judge and start improving the trajectory of American justice at the “retail level!”
Congrats, endless admiration, and much appreciation to all of these amazing and inspiring leaders! CAIR Coalition was a mainstay of the pro bono program during my tenure at the “Legacy” Arlington Immigration Court. Many outstanding leaders of the legal profession have been associated with CAIR. They have saved countless lives and made American society better and fairer!
As Courtside readers know, I am particularly proud of Adina Appelbaum, Program Director, Immigration Impact Lab.Here’s what I wrote about her in a past Courtside post:
I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!
If only Garland had followed the advice of many of us to recruit amazingly talented expert leaders like Adina to reform and institutionalize due process at EOIR, the immigration “debate” would be completely different today!
Sarah Nagle, J.D. ’24, reviewing Ms. S’s case prior to her Asylum Interview (Fall 2023).
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