"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.
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
*****************
Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
Maria Daniella Prieshoff Senior Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Maria Daniela Prieshof writes:
A brighter future is now ahead for our client, “Elise”, who was just granted T visa status! At 16 years old, Elise was trafficked into the U.S. by her father and adult brother, who forced her to work two jobs in the restaurant industry in Maryland, almost 60 hours a week at below $6/hour. Whenever she had time to be at home, her brother forced her to do all the household chores, locked her up at home, monitored all her movements, and assaulted her multiple times. Her brother and father controlled all her earnings and Elise would go hungry most days. With the help of a coworker, Elise escaped to safety and in 2022 was referred to Tahirih Justice Center for free legal and social services. My amazing social services colleague, Feamma Stephens, advocated for Elise to access urgent services to combat her homelessness and receive mental health care.
This week, we all celebrated with Elise when we received news that she’d been finally granted T visa status! Elise is delighted and eager to apply for scholarships so she can afford to go to college and achieve her dreams. ❤️ 🌈
26
****************************
Thanks, MDP, for reminding us that notwithstanding the distortions being foist upon the public about the “border security threat” — basically, thousands of individuals lining up in an orderly manner and waiting patiently, for days or hours, often in freezing conditions, to be processed and screened by the USG— the system can work to save lives, particularly with top-level representation. If there are “terrorists” seeking entry into the U.S. it’s highly unlikely that they are standing in those lines to present themselves to law enforcement officials or that they are going through the complicated and difficult process for getting T visas.
But, apparently it isn’t as politically useful and profitable (for some) as walls, detention, deportations, and deprivations of legal rights. And, human rights don’t seem to interest the media as much as being able to trumpet “border crises” and photo ops of Texas Governor Greg Abbott holding up a signed copy of his latest nativist deportation gimmick.
Sandra Day O’Connor, the first woman to serve on the Supreme Court, died at age 93, the court announced Friday.
The woman who often referred to herself as FWOTSC (First Woman on the Supreme Court) was a justice for 26 years, serving as the swing vote in cases addressing abortion and affirmative action. (O’Connor, however, hated the term “swing vote,” saying it suggested a person who made their rulings on a whim.) She retired from the court in 2006.
“My appointment just opened the doors, and it was not only in the United States,” O’Connor said in 2012. “It immediately had an effect in other parts of the world, with opportunities for women. It was quite amazing to see.”
. . . .
************
Read the rest of the tribute at the link.
She was a pioneer and a legal giant who put thoughtful judging, fairness, problem solving, and collegiality above ideology. She changed America for the better. Not many judges today can say that!
Interestingly, Justice O’Connor’s story is similar to that of one of my law professors at U.W. Law (1970-73), Hon. Shirley Abrahamson who went on to serve as Chief Justice of the Wisconsin Supreme Court. Despite graduating at the top of her class at Indiana Law, like Justice O’Connor, Chief Justice Abrahamson got no job offers other than as a legal secretary. Like Justice O’Connor, Chief Justice Abrahamson refused to accept the arrogant, misogynistic “verdict” of the then male-dominated legal system “establishment.” Like Justice O’Connor, she fought her way the top of our profession by virtue of her intellectual excellence, performance, and persistance.
While opening doors for many, unfortunately, as she herself acknowledged, Justice O’Connor is also symbolic of a bygone era — one where practical experience and common sense in our judges was valued over ideology. It’s impossible to imagine any candidate for the Supremes being unanimously confirmed by the Senate, as it is that any future Republican President would even consider someone like Justice O’Connor for the job.
Democrats have big night as abortion rights take center stage. Here are takeaways from Tuesday’s elections
From CNN’s Gregory Krieg
For all the sound and fury around Tuesday’s elections, there was one clear signal: Abortion rights are politically popular, no matter where or when they are on the ballot.
And that, no matter how you slice it, is good news for Democrats as the parties plot their strategies ahead of the 2024 elections.
Gov. Glenn Youngkin – the Virginia Republican who believed he could crack one of the most intractable issues in American politics with the promise of “reasonable” abortion restrictions – will not lead a GOP-controlled legislature in the Commonwealth, which denied the party control of the state Senate and put a swift end to both his plan for a 15-week abortion ban and rumors he might pursue a 2024 presidential bid.
Meanwhile, voters in Ohio decisively said they wanted a constitutionally protected right to abortion with the passage of a ballot measure – only a few months after they rejected another measure that would have made it harder for them to shield abortion rights.
And in Kentucky, the Democratic governor defeated his Republican challenger, a state attorney general with close ties to former President Donald Trump and Senate Minority Leader Mitch McConnell, after a campaign in which abortion became a flashpoint.
. . . .
***********
Read the full article at the link.
Thankfully, VA’s right-wing extremist Gov. Glenn “Junkman” Youngkin’s vile plans for limiting women’s rights, further bullying the LGBTQ+ community, and continuing to “dumb down” public education in the Commonwealth just took a big, timely, well-deserved hit!His “stealth campaign” to disguise and present himself as a “jollier version of Trumpist extremism” in a future presidential run also suffered a setback!
If only the GOP showed a fraction of the concern they supposedly have for human lives for those children already born into poverty and hopelessness, as well as those arriving at our borders in flight from horrific conditions in their native countries! GOP right wing politicos have opposed or dismantled a number of government programs and initiatives shown to have effectively reduced childhood poverty in the U.S. Talk about screwed up priorities!
Tea Ivanovic Co-Founder Immigrant Food PHOTO: VA Tech
TÉA IVANOVIC ’14
Co-Founder, Immigrant Food
I’m a co-founder and Chief Operating Officer of Immigrant Food, a Washington D.C.-based restaurant startup that ‘marries’ innovative gastronomy with social advocacy. Immigrant Food currently has three locations in the D.C. area, and has received notable recognitions (Fast Company’s World Changing Ideas 2019, Ayuda’s Advocate of Change Award 2022, etc) for its innovative cause-casual model of integrating a social justice component into the business model since inception. I also moonlight as a commentator at Altamar, a well-respected independent international affairs podcast.
Where you’ve been in your career and where you are going…
My professional career includes creating and implementing strategic communications for international policy and politics at a Washington D.C. think tank, and global financial matters at a financial public and media relations firm. I was the first Washington Correspondent for Oslobodjenje, one of the oldest and most prominent news outlets in the Balkans. I was born in Belgium to parents from the former Yugoslavia and recruited to the United States by Virginia Tech’s Division 1 Varsity tennis team. I graduated with a master’s degree from the Johns Hopkins’ School of Advanced International Studies (SAIS). In 2022, I was named on the prestigious Forbes 30 Under 30 List, Washington Business Journal’s 25 Women Who Mean Business, FSR’s 40 Restaurant Stars on the Rise, and DC Fray’s 8 Trailblazing Women in Hospitality.
How would you capture the essence of your work in a newspaper headline…
Disruptive Food Startup Incorporates Gastronomy and Advocacy
How Virginia Tech equipped me for the ‘real world’…
The experience of having met people from around the world (and around the U.S.) who were fellow students, and having played tennis on a competitive varsity team dealing with the ups and downs of winning and losing, gave me a taste of the complexities of the real world. I’m so grateful for that.
A key habit, practice, or skill that’s worth the effort…
Waking up early and visualizing your day. Preparation is a huge part of getting things done, and keep going.
Biggest misconception about my job or industry…
I think the hospitality industry often gets a reputation of hard work for minimal pay – and many people almost look down upon servers or line cooks. In fact, the restaurant workers are some of the most resilient, intelligent and dynamic people out there!
My favorite quote…
“If you don’t like something, change it. If you can’t change it, change the way you think about it.” — Mary Engelbreit
My hidden talent…
Remembering people’s birthdays
The work project/initiative you’re most excited about…
Immigrant Food is my passion project, and I’m excited to see where we go from having grown to three locations in Washington, D.C. during the pandemic. We opened in November 2019, just mere months before the pandemic hit. Through hard work and dedication we managed to expand, and we are looking to continue growing in the years ahead.
Fondest Virginia Tech memory or tradition…
Jumping at Enter Sandman, duh!
Best part of being a Virginia Tech alum…
The vast alumni network, and always being able to call Blacksburg home!
Words of encouragement to a current Virginia Tech student…
Virginia Tech is a special place. Cherish the experiences, challenge yourself, and expand your network. The moments don’t last forever, but you’ll always look back at the memories you made and the lessons you learned.
A cause I’m most passionate about…
Immigration, of course. It’s the reason I’m here, and it’s the reason America is one of the greatest countries in the world.
Last book I read…
Adultery, Paulo Coelho
If I had a superpower, it would be…
Being invisible. Not because I want to hide – just imagine all the awesome places I could witness!
The most formative experience I’ve had…
Dealing with people who don’t believe in me. You think about the mentors in your life, the advisors and the incredible people who have shaped you. But I’m also grateful to those who have challenged me, who didn’t believe in me, who may have even tried to tear me down. I’m so much stronger because of them. I may not have realized it at the time, but those experiences are some of the most formative of my entire life.
The U.S. labor market is on a gravity-defying streak. The June jobs report was a tad softer than expected, but the overall trend is so strong that recession fears are fading. Hiring remains solid across many industries, including construction, and companies are largely holding on to their workers.
There’s growing optimism that the country can avoid a downturn. One key reason this is possible is the surge of new workers. Nearly 4 million more people are employed now than just before the pandemic hit. That’s more families with steady incomes to spend, which helps explain the vigorous sales of everything from cars to gardening supplies. There has also been a big upshift in the labor force since the pandemic: Low-paying hospitality employment still hasn’t recovered, as workers have traded up to higher-paying business, health-care and warehouse work. This has brought another boost to incomes and an important mental shift as more workers who used to hop from job to job now see themselves on a steady career path.
. . . .
In contrast, over 2 million more Hispanics are employed now, over 800,000 more Asian Americans and over 750,000 more African Americans. This same trend played out just before the pandemic. Companies were also complaining then that they could not find workers, and experts were saying the nation was at “full employment.” Yet month after month, Black and Hispanic people (largely women) kept entering the labor force and getting jobs. It’s also notable that over 2 million more foreign-born people are employed now than before the pandemic. This means that more than half of the new workers have been immigrants.
If the U.S. economy ends up having a soft landing, it will largely be because immigrants and people of color have kept entering the labor force — helping to keep production going, consumption solid and wage growth (and inflation) cooling to a more sustainable level.
What’s going on is partly a result of low unemployment, what economists often dub a “tight” labor market. Black and Hispanic people often do not get hired until late in a recovery. In the past year, there has also been a strong uptick in jobs in government and health care, sectors in which women of color have historically found employment opportunities. Employers have also expanded their hiring searches, improved pay and benefits, and removed requirements for college degrees for many positions. All of this has helped expand opportunities. This past spring, for the first time, Black Americans were as likely to be employed as White Americans.
“There is sufficient demand that employers aren’t discriminating. They need workers,” economist William Spriggs told me in a conversation shortly before his death last month.
Spriggs spent years pointing out that too many experts were overlooking how many more people of color were ready to work if only employers would give them a chance and the jobs weren’t dead-end ones. As other economists were stunned by the labor market in recent months, especially the gains for Black people, Spriggs had a different take. “It’s not that the labor market is ‘overheated,’” he said. “It’s that the labor market is getting closer to how it’s supposed to work in a textbook.”
Yet, these groups receive little credit, to a large extent because of racist myths perpetrated and spread by GOP nativists like DeSantis, Trump, Abbott, Miller, Bannon, and many others. Too often these myths and intentionally misleading statements are accepted at “face value” by the media.
With a tight labor market, one might well ask why the U.S. is spending billions trying to detain and discourage refugees from applying for asylum at the border? Why are we dumping on individuals who, despite the mischaracterizations by both parties, are “trying to do things the right way” by applying through the legal asylum system?
Seems like the resources would better be devoted to figuring our how to fairly and generously process refugees, asylees (an important source of legal immigration), and other immigrants in a fair, robust, and timely manner, both at the border and abroad! Get these folks into legal, work authorized status faster so that they can contribute and help our economy grow!
To be clear, immigrants remain a small share of the labor market. They account for less than one-fifth of employment overall. But they are more than punching above their weight in this recovery, particularly as (disproportionately older) native-born Americans retire. Increased immigration may be helping resolve some other economic challenges, too. It’s unclear how many forecasters have been incorporating these improvements in the functioning of the immigration system into their models.
Another group unexpectedly punching above its weight: women.
. . . .
To be sure, there are reasons to fear that all those pessimistic forecasts we’ve heard for months — about more layoffs, and possible recession — haven’t been wrong, exactly. They may just have been early. Those dour predictions are partly a product of the sharp interest rate hikes and tightening financial conditions we’ve seen recently. These factors historically have been followed by recessions. We may not have yet seen their full effects this time around, and there are signs of financial stress emerging.
In the meantime, though, let’s celebrate the underdogs helping supercharge our economy to date.
********************
Read Catherine’s full article at the link.
As I’ve said before, immigrants of all types are a great story. Unfortunately, many in the GOP are determined to deny, distort, and dehumanize immigration for perceived political gain.
At the same time, the Biden Administration and too many Democrats seem unwilling or reluctant to embrace and tout the truth about migration. They appear to be hoping that migration will just disappear as a political and societal issue (which it hasn’t, and won’t).
That leaves immigrants and their advocates to just keep plugging away and working hard to improve a society that too often either ignores or fails to appreciate their disproportionately substantial achievements and huge potential for creating a better future for all.
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
********************
Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
GRAND RAPIDS, MI — Hillary Scholten will become the first Democrat to represent Grand Rapids in Congress since 1977 after defeating Trump-backed Republican John Gibbs in a race that’s drawn national attention.
Scholten, an immigration attorney from Grand Rapids who worked in the U.S. Department of Justice during the Obama administration, defeated Gibbs 53% to 44%, according to unofficial results from the Associated Press.
The AP called the race for Scholten just before 2 a.m. Wednesday morning, with 63% of votes counted.
Scholten campaigned as a common-sense, problem-solving candidate who supports abortion rights, lowering the cost of health care and prescription drugs, and protecting Social Security and Medicare. Scholten cast Gibbs as an extreme candidate focused overturning the 2020 election results and “doing Donald Trump’s bidding on West Michigan.”
Scholten could not immediately be reached for comment early on Wednesday, Nov. 9. Her campaign spokesperson, Larkin Parker, said Scholten would be live-streaming a speech this morning.
Gibbs took to Twitter after AP called the race, saying “we believe this call is premature.”
“There are plenty more votes outstanding and we expect the vote count to go well into Wednesday,” said Gibbs, who grew up in Lansing and served in the U.S. Department of Housing and Urban Development during Trump’s presidency.
The last time a Democrat was elected to represent Grand Rapids in Congress was 1974. Attorney Richard Vander Veen was elected that year, in what was then the 5th Congressional District. He replaced U.S. Rep. Gerald Ford, who resigned from the seat to become vice president during Richard Nixon’s second term.
. . . .
After the polls closed Tuesday, Scholten spoke to supporters at Paddock Place, a restaurant and event venue in Grand Rapids. She described her campaign as a unifying effort to draw in voters from both sides of the political spectrum, as opposed to the “divisiveness” of her opponent’s campaign.
“This campaign has, and continues to build, something new here in West Michigan,” Scholten said. “A new political home for people on the right, the left, the center, who are tired of politics as usual, who are ready to cast aside the old frame of division, ‘us versus them,’ and join hands together for a better, brighter West Michigan for all of us.”
. . . .
**************************
Hillary has always been a widely respected “bridge builder.” She’s intellectually powerful, value-driven, dynamic, “tough as nails,” yet always kind and compassionate!
To my knowledge, she’s the first NDPA stalwart and first BIA employee to be elected to Congress. I hope she inspires others who share her values to enter the political arena and help those of us who believe in rational, practical, people and values-centered government and equal justice for all to save America from extremist ideologues!
🇺🇸 Congrats again and Due Process Forever! Practical, human values, and the courage to stand-up for them against lies and tyranny CAN win elections!
Border enforcement once again dominates contemporary immigration law debates. Yet many legal practices commonly linked to border control—including policing, relocation, and exclusion—actually have little to do with immigration enforcement. Instead, immigration control provides a justification for surveillance and the erosion of civil liberties deep inside the United States. For instance, the governor of Texas issued an executive order this June, asserting the legal authority to arrest people suspected of unlawfully crossing the border or committing “other violations of federal law.” This executive order is framed as being about expanding the pipeline to deportation and, in particular, shoring up federal efforts to promote border security. Yet the reach of the order goes well beyond issues relating to deportation. It raises the central questions: Who decides who appears to be present in the United States without lawful immigration status, and on what basis?
More recently, certain lawmakers have employed the rhetoric of border control to justify busing or flying migrants to locations inside the United States. Texas Governor Greg Abbott (R) tweeted at the time: “We’re sending migrants to [Vice President Kamala Harris’s] backyard to call on the Biden Administration to do its job & secure the border.” Florida Governor Ron DeSantis (R) employed similar rhetoric to justify sending approximately 50 adults and children to Martha’s Vineyard without any apparent prior notice. This relocation may have violated criminal laws. The individuals who were relocated may have been given false information to induce them to board planes. Lawmakers who frame these relocations as a means of border control make the unjustified assumption that the targeted individuals had no claims to remain in the United States. This approach not only ignores laws permitting people to seek asylum but also treats certain U.S. residents as lacking basic civil liberties inside the United States. When government officials claim the ability to lure people from one state to another on false pretenses, they also claim virtually unlimited power to intrude on individual liberty in stated service of immigration control.
. . . .
In a variety of settings, ranging from politically motivated relocations of migrant communities to jailhouse immigration screenings, lawmakers present actions that curtail civil liberties as related to deportation. But a deportation-centric perspective, which centers whether and how certain practices might lead to removal, offers too limited a lens to understand the reach and impact of enforcement practices done in stated service of immigration control. It ignores the full costs of enforcement, including unjustified surveillance and policing. Rather than protecting the polity from a foreign threat, government actions purportedly aimed at immigration control undermine core liberties that ought to be protected within the American political community. If the ultimate aim of immigration law is to create an integrated political community, then we need to consider how law could operate to promote integration and inclusion, rather than treating all enforcement actions as a means to deportation.
******************************
Read the complete article of the link.
This is why it’s such a disgraceful mistake for Garland and the Biden Administration to allow the racially-charged, anti-due-process travesty at EOIR to continue, largely unabated!The misguided idea that migrants are not “real persons” under the Constitution — and to a large extent the related view that their lawyers aren’t entitled to the common professional treatment and courtesies extended in most other parts of our legal system — definitely has“carryover” into the dehumanization of various categories of the “other” and ignoring the compelling evidence of abuse amassed by those lawyers working to keep the system honest.
For example, the Supreme’s dismissive treatment of women’s rights and humanity is definitely related to the degrading treatment of women’s claims in Immigration Court — an overt misogyny encouraged by Sessions, Miller, and their nativist acolytes!That Democrats as a whole have failed to “pick up” on the serious attacks on equal justice and due process in Immigration Courts and their carryover effect to other parts of our legal system is a bad sign for the future of American democracy. Once a “person” is treated as “less than a full person” under the Constitution, there is no limit to who can become a “legal nonperson.”
His defense of the indefensible went over like a lead balloon with those whose lives have been upended by the radical right Justices’ political agenda!
Every time a GOP politico or media sycophant preferences remarks with “I’m not a racist,” you know that some outrageous racist statement is about to follow. What they are doing is dishonestly attempting to preemptively “shift the blame and focus” to those who call out their vile, dishonest conduct!
Over the weekend, Chief Justice John Roberts, drifted down a similar discredited path of disingenuous “preemptive denial.” In a ludicrously tone deaf statement that echoed Tricky Dick’s “I’m not a crook” speech, Roberts lamely attempted to defend the legitimacy of his Court’s stripping of fundamental human rights from women. In doing so, he basically reinforced critics’ points about the Court’s illegitimate, extralegal, right-wing, political war on individual and human rights with a good bit of misogyny thrown in!
Nixon’s “I’m not a crook speech” convinced many that he was, indeed, a crook. Roberts’s “My Court isn’t illegitimate just because it advances a far-right political agenda speech” is heading in the same direction! PHOTO: Twitter
Never mind that the Court basically aligned itself with authoritarian theocrats promoting “forced birth” and overt subjugation of a woman’s fundamental right to decide whether or not to reproduce. Indeed, advancing that minority political agenda was the fundamental reason why Roberts and his GOP crew are on the Court in the first place! To pretend otherwise is off the wall!
There are some strong moral, societal, economic, andmedical arguments to be made about why women should or should not choose to have children. Under the First Amendment, both those who favor abortion and those who oppose it have always been free to argue their points.
But, the idea that these choices should be removed from those directly concerned and placed in the hands of political and religious authorities is preposterous. Lacking convincing arguments to persuade all women facing that choice to their side, the far right theocracy did a preemptive strike! And, their “wholly-owned Justices” went along!
Needless to say, Roberts’s insultingly disingenuous defense of the indefensible did not fare well with informed critics.
Former Sen. Claire McCaskill, now an MSNBC analyist, On Meet the Press:
On Sunday, McCaskill – an MSNBC political analyst – tore into Roberts for taking the country backward and recalled that the jurists who signed onto Alito’s originalist rationalization misled the public during their respective Senate confirmation hearings.
“He’s so so out of touch. I mean really, this interview shows why the numbers for the Supreme Court are so bad. For him to say something like that, he just doesn’t get it. You don’t take away a right that’s been around for 50 years and you don’t have a party go to extremes of trying to make sure rape victims have to have forced birth,” McCaskill said.
“You don’t do that and not have it splash back on the Supreme Court,” she continued. “And they all said they respected precedent when they were confirmed. I heard them. America heard them. Clearly, they didn’t, and you can feel me getting angry at John Roberts right now because he knows better when he says that stuff.”
Professor (and former prosecutor) Joyce White Vance, Professor Leah Litman, Professor Stephen I. Vladeck, Political Scientist Norman Ornstein:
“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.
University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”
. . .
If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”
While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”
He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”
The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.
So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.
But it’s not just the outcome, which decimated a right Americans had held for five decades and put a variety of other privacy rights in jeopardy. It’s the way that decision — and others on guns, climate change, and religion — recently came to pass.
In this case, Roberts would have done better to confine himself to “calling balls and strikes.” Sadly, he and his GOP colleagues have gotten out from behind the plate and taken the field in their “Federalist Society” uniforms. He’s going to have to learn to live with objections and catcalls from those in the stands who see what’s really going on here and are understandably upset about the Court’s overreach, substandard legal performance, lack of accountability, absence of self-awareness, and, yes, lack of legitimacy.
Better judges for a better, fairer America — from the Immigration Courts to the Supremes!
By the way, we can’t change the Supremes overnight. But, Biden, Harris, & Garland COULD have reformed, repaired, and legitimized the Immigration Courts, including the BIA, that they control. That they have failed to do so is the biggest “unforced error” of the Biden Administration — one that will haunt Democrats and Americans for ages!
Every day Garland’s parody of a court system, still largely bearing the unmistakable stamp of White Nationalists Sessions, Barr and Miller, continues to run roughshod over individual rights, often in life or death cases, while degrading the judicial process. Misogyny and racism are also on full display, as a disproportionate brunt of their unprofessional, wrong-headed, result-oriented “any reason to deny” decision-making falls on refugee women of color (and often on their accompanying children).
There is a very direct connection between “DHS agents in robes” in our Immigration Courts and “right-wing politicos in robes” at the Supremes. Part of the idea is to “normalize” injustice directed at “the other” — just so long as YOUR life isn’t directly affected, who cares? It’s also known as “Dred Scottification.” It’s the “polar opposite” of Dr. Martin Luther King’s observation that “injustice anywhere is a threat to justice everywhere.” If Dems don’t “connect the dots,” they might not be able to save our democracy!
The essence of life, food has been a unifying force throughout history. Téa Ivanovic and Immigrant Food are using it to welcome and unify America for social justice! PHOTO: IF website
From the September Edition of Immigrant Food:
Editor’s Note – September
Dear Reader,
With November’s midterm elections just around the corner, immigration will (again) become a hot national topic. Is immigration really as controversial as America’s politicians want us to believe? In this month’s issue, we explore the question: “Do Americans Support Immigrants?”.
Official immigrants account for 14 percent (40 million people) of the US population, making them an integral part of American society. Immigrants have always been part of the American identity, contributing to the economy, creating employment, and molding America’s unique culture. After all, unless you’re native American, you or your family came from somewhere.
This month, we speak to Nazanin Ash, CEO of Welcome.US, an incredible new national initiative built to inspire, mobilize, and empower Americans from all corners to welcome and support those seeking refuge. We also spoke with people on the street to understand how real Americans think and feel about welcoming immigrants.
Hope you gain new insights,
Téa
Here’s the link to Téa’s latest great video, “Téa’s Coffee presents:Are Americans Welcoming Immigrants?”
An immigrant herself, social justice dynamo Téa Ivanovic came roaring out of Virginia Tech only eight years ago and hasn’t looked back! No time for anything but moving forward and taking on new challenges!
The former Hokie D-1 tennis player is busy leading, innovating, and using her amazingly broad liberal arts skill set to serve our DMV area and make America better!
She’s a successful businesswoman, media presence, organizer, advocate, historian, ethicist, humanitarian, innovator, journalist, educator, practical scholar, foodie, sportswoman, financial manager, and all around cheerleader for the immigrant community of which she is a part! As you might expect, her omnipresent passion for life and community is tempered by a sense of humor, perspective, and self-awareness.
Tellingly, the themes for the Immigrant Food website and for their logo run heavily to “burnt orange and maroon” undoubtedly a product of her “Hokie heritage.”
“Hokie Nation” might get a certain nostalgic feeling when they visit the Immigrant Food website!
Téa’s a promotional icon for another one of my “crusades” — recognizing and nurturing the enduring value of liberal arts education in America.
That’s NOT the BS, “whitewashed” (in more ways than one) version of education promoted and foisted upon us by the far right and its highly motivated yet badly misguided acolytes, but rather the “real deal.” Honesty about our past, knowledge, applied scholarship, versatility, flexibility, communication, reasoning, debating, critical dialogue, problem solving, business acumen, financial skills, multiculturalism, language skills, agriculture (Tech is Virginia’s “land grant” college), moral courage, sports, scientific and environmental truth, leadership, compassion, creativity, artistry, humane values in action — Téa’s got all of this going on!Folks, she’s the “complete package” – a one-woman “Liberal Artists’ Dream Team.”
Let’s start with first impressions. Clearly a powerful intellect — summa cum laude, Phi Beta Kappa, ACC All-Academic— Téa radiates energy, competence, creativity, personality, kindness, infectious enthusiasm, good humor. Some of it undoubtedly stems from her Hokie varsity tennis days where she also honed her competitiveness, sportsmanship, and performance skills. But, as I’m sure she did on the tennis court, Téa plays hard, to win, but respects the rules of the game.
A formidable presence on and off the court, Téa never achieved the athletic recognition of her Serbian almost namesake, Ana Inanovic, a former World #1. But, Téa is “World Class” in her own right. Somewhere, a whole bunch of Ivanovics must be really proud of their social justice prodigy! PHOTO: coretennis.net
How dynamic, talented, and committed is Téa? Here’s the “lede” on her “official Immigrant Foods bio:”
Téa started as the hyper-talented head of communications for Immigrant Food, but as the pandemic took its toll, it became clear that she had to become Jack of all Trades. So she took on management. And then took on operations. And then took on financial responsibility. So, she became the COO.
In other words, Téa awoke one day and decided “the best way I can help my organization and my team is by taking on the additional responsibility of Chief Operating Officer.” So she did it! No waffling or second thoughts about whether someone less than a decade out of college could pull off this stressful, yet rewarding, “high wire act!”
Walking a tightrope requires skill and courage. Téa’s never afraid of new challenges! PHOTO: Creative Commons
Somewhere along the trip from Blacksburg to DC, Téa picked up a M.A. at Johns Hopkins’ School of Advanced International Studies (SAIS). Born in Belgium, the daughter of former Yugoslavians, she’s fluent in English, Flemish, and Serbian. Téa describes herself as “an immigrant squared” (quite different from a “square immigrant,” which she certainly isn’t).
The first Washington correspondent for Bosnia and Herzogevina’s leading newspaper, Téa has worked at think tanks, written for various online publications, and been a researcher and fellow. She’s lived a lifetime, accomplished great things, undertaken new challenges, and helped lead the charge to blow away the myths and achieve social and legal justice for migrants and everyone else in America. Hers is a life already laser focused on her larger community, making the world better, and helping others!
Folks, Téa’s 30th birthday is still on the horizon! Her “full due process potential” is breathtaking, inspiring, encouraging, and reassuring (particularly for those of us “on the bell lap” of life’s journey, concerned for American’s future)!
Téa is confident, not arrogant or imperious. She’s just as comfortable interviewing some of the “movers and shakers” of the DC area about profound national issues as she is connecting with a recent immigrant working in a bistro about their American experience. And, despite her obvious love of the kitchen, I’m sure the immigrant Food books aren’t “cooked” with Téa as COO!
You can keep up with Téa and her talented band of social justice/good food brothers and sisters by subscribing to Immigrant Food (“IF”) here:https://immigrantfood.com/.
Like “Courtside,” it’s free — making it one of the best bargains in a town not necessarily known for them!
In addition to connecting you with some great local immigrant cuisine, IF also highlights local events and ways to connect with immigrants in the community.
Getting down to business, the food is tasty and tastefully presented! PHOTOS: IF website
For example, each week, the “IF Team” shows you five ways to engage with the immigrant community. It might be through a donation, volunteering, or educating yourself about immigrant issues (Téa’s above video is a terrific example).
There are so many ways you can make a difference! This week’s “Engagement Menu,”features volunteering, donating, and educational opportunities, like supporting the Afghan Adjustment Act! Something good is always “cooking in the kitchen” at IF! Téa Calls it “gastroadvocacy!” What a great concept!
Additionally, IF has partnered with five amazing immigrant justice NGOs in the DMV area: AsylumWorks, AYUDA, CAIR Coalition, APALRC, and CARECEN. Imagine having the expertise, kinetic energy, and social justice firepower of giants like Paula Fitzgerald (AYUDA), Joan Hodges Wu (AsylumWorks), Adina Appelbaum (CAIR Coalition, one of my “best ever” Georgetown Law “Refugee Law & Policy” alums), Laura Trask (AYUDA), Téa, and other immigrants’ rights advocates from these venerable organizations on your side. Truly, a “Social Justice Dream Team.”
As my Georgetown Law students know, I’m always “preaching”about the “big five life values” — fairness, scholarship, timeliness, respect, and teamwork. Téa, and her equally spectacular colleagues at IF embody all of those. They inspire, energize, and show us how the “new generation” of the NDPA can make an immediate impact in the never-ending battle for social justice in America and help forge a better world.
Maybe it’s time to take “gastroadvocacy” to the next level: a nationwide network — call it the “Social Justice Food Network” (“SJFN”).
Get a YouTube channel! Create an app! Folks can hook up their mobile phones and “eat their way from coast to coast” while promoting unity and equal justice for all!
As somebody who still loves the “American road trip,” the idea of hitting the next roadside eatery where we can get good food (some vegan entrees, please), meet great immigrants, and chat with local folks about social justice is hyper-appealing! Outdoor seating and/or carryout for those of us traveling with our dogs would also be a huge plus!
Duncan, pictured here on the outdoor patio are the Whale’s Tales Pub in Boothbay Harbor, loves road trips and outdoor seating!
Téa, thanks again from all your NDPA colleagues and friends for all you do! I hope that this “mini-profile” will inspire others to get to know you, either online or in person, and join your fight for a better America — one where the unfulfilled promise of “equal justice for all” will finally become a reality!
One thing’s for certain. Téa’s time on the front lines of the fight for social justice is just getting started. I can’t wait to find out what she has up her sleeve next! Whatever it is, I know that it will be creative, energetic, and dedicated to helping others.
There is no mountain that Téa and her team can’t climb. I’m just grateful that she and others like her have chosen to “throw in their lot” with the NDPA! Hats off to you, Téa, and other immigrants, past, present, and future, who “make” our nation!
The Team @ Immigrant Food serves up social justice and good grub! PHOTO: IF website
If, indeed, “we are what we eat,” I encourage everyone to order up an extra big helping of social justice at Immigrant Food!
To close this circle, I started out to write a profile of my friend and NDPA colleague, Téa. By the time I finished, I had connected all kinds of dots from my own life (e.g., my dad was a physician at the student health center at Tech before Téa was born, and remained an avid Hokie fan till the end), my relationships with other NDPA colleagues, former students, NGOs that played a role in my life on and off the bench, public service, “gonzo journalism,” vegan eating, road trips, dogs, the future fight for social justice, and “the heart and soul of America.” That’s what makes the enlightened leadership of folks like Téa so special and generates optimism for a better, more just and unified, America for the future.
After destabilizing the nation over abortion, and moving further right on guns, climate, and religion, the conservative justices’ sights are on affirmative action, voting rights, and a fringe legal theory that could empower Trump-friendly state legislatures for future elections.
On the eve of his retirement, the nation’s first Black justice and constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall warned in 1991, in what turned out to be his final dissenting opinion.
The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.”
As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.
Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.
Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough.
Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics.
. . . .
***********************
Read the rest of the article at the link.
Cristian creates an interesting vignette.The Justices take a few minutes to gather to welcome Justice Ketanji Brown Jackson to the Court. Then, the Right Wing Majority goes to work ignoring her views, insuring her marginalization, and pushing a minority agenda drawing into question her very existence as a person under law.
The conclusion of the article is perhaps most illustrative of the uncertain future of democracy, human rights, equal justice, and indeed basic human decency:
“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.
Quite an achievement for a Court now dominated by those appointed by Presidents whose election (initial or sole) contravened the will of the majority of voters.
“Better Judges for a Better America!” Why not start with your “wholly owned and operated” Immigration Courts, Merrick Garland?
🇺🇸Due Process Forever!
PWS
08-29-22
More from today’s WashPost on the threat to our democracy posed by the anti-democracy, scofflaw GOP and their right wing judges:
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA! Public Domain
Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published
PANEL:KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
OPINION: Judge FLOYD
KEY QUOTE:
In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would
2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.
11
have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).
*************
Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3
On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.
Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution! Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
NOT, a “mere mistake.”
EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.
Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?
If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!
“What are legal ethics? Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers! So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.
TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.
Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.
CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.
CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.
Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.
Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.
Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.
BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.
Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.
LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.
Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”
Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.
Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.
AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.
AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.
USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implementedby the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!
Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.
In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!
But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ millionEOIR backlog, following this remand from the Second Circuit.
Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”
It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).
The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”
“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?
Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”
That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!
There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!
Heather Long @ WashPost writes:
