"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The Hidden Impact of Removal Proceedings on Rural Communities
Although the Immigration Courts with the largest backlogs of cases are located in large cities, the latest Immigration Court records show that when adjusted for population, many rural counties have higher rates of residents in removal proceedings than urban counties. In fact, of the top 100 US counties with the highest rates of residents in removal proceedings, nearly six in ten (59%) are rural. In these communities, residents facing deportation may find themselves in rural “legal deserts[1]” where there are few qualified immigration attorneys, longer travel times to court, and high rates of poverty.
The Immigration Court data used in this report was obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to its Freedom of Information Act (FOIA) requests to the Executive Office for Immigration Review (EOIR).
Mapping Pending Immigration Court Cases
TRAC recently mapped the Immigration Court’s current active backlog—over 1.1 million cases—to show the number of residents in each county who are awaiting their day in court. In this follow-on report, TRAC used the same data set to map the proportion of residents (“rate”) with pending immigration cases as a fraction of total residents[2].
When the total number of backlog cases is mapped, urban areas such as Los Angeles, New York City, and Chicago emerge as areas with large numbers of pending cases. This makes sense, because the total number of immigration cases is driven by the geographic concentration of large numbers of people in urban areas. However, when the number of pending immigration cases is mapped relative to county population, a different picture emerges. Many large urban counties are revealed to be more average, while many rural counties are shown to have much higher concentrations of removal cases.
In these rural counties, residents may have a heightened sense that immigration enforcement is impacting their community. This, in fact, would be an entirely rational perception since the odds are indeed greater.
Figure 1 below includes a map of the proportion of residents in each county currently in the backlog (top) and the total number of cases in each county in the backlog (bottom, reprinted from our previous report). The county-level rate is represented as the number per 100,000 residents who are currently in removal proceedings.
Particularly striking is how many counties in Southern California and the New York City-Boston corridor, which are prominent in the map of the number of cases, look more typical once population is taken into account. Also striking is how counties in the Great Plains regions from Southwest Minnesota to western Oklahoma pop off the map as places where higher percentages of the community are facing deportation proceedings today.
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There is little doubt that DHS Enforcement and their “partners at EOIR” have made an effort to hinder individuals’ Constitutional and statutory right to representation by counsel of their choice. From “Aimless Docket Reshuffling,” to locating so-called “detained courts” in obscure places, to arbitrary denial of continuances, to restricting bonds, to failures to provide notices and giving intentionally “bogus” notices, to rude and unprofessional treatment of attorneys, to trying to get rid of “know your rights” presentations, to skewing the law to change results to favor DHS.
All this leads to a largely “due process free” Deportation Railroad.
U.S. immigration officials must disclose the number of releases they have granted or denied from detention centers in five southern states to migrants considered at higher risk of dying from coronavirus.
The order from U.S. District Judge James Boasberg came during a hearing Thursday – days after U.S. Immigration and Customs Enforcement expanded the categories of detainees who should be considered for release beyond pregnant women and those over age 70.
On Saturday, ICE directed field offices nationwide to reassess custody of anyone over 60, as well as those of any age with chronic illnesses compromising their immune systems.
“What I’m looking for is, is it in fact happening on the ground?” Boasberg told lawyers for ICE at an emergency hearing in U.S. District Court in Washington in a lawsuit brought by immigrant advocates seeking release of asylum seekers detained in Alabama, Arkansas, Louisiana, Mississippi and Tennessee.
Boasberg, who ordered the numbers released by April 30, said ICE’s shift may “go a long way” toward releasing the most vulnerable detainees.
Assistant U.S. Attorney Jeremy Simon said ICE will determine if it can release the information. He said ICE also retains full discretion over the outcome of reviews, saying “none of the [listed] factors are determinative” of release, with public safety a high priority.
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Read the rest of the article at the above link.
Unfortunately, April 30 might be too late for some of those held in the Gulag.
The “ICE guidance” sounds like the normal DHS bureaucratic doublespeak that promotes arbitrariness and allows individual offices to do whatever they feel like doing, while providing a “smokescreen” of reasonable action. Hopefully, Judge Boasberg won’t be fooled.
The Trump administration has carried out nearly 10,000 summary deportations or “expulsions” since March 21, using emergency public health measures that have given U.S. Customs and Border Protection broad authority to bypass immigration laws, CBP officials said Thursday.
The measures have allowed the agency to quickly turn away most unauthorized migrants —sending them back across the Mexican border. The moves have dramatically slashed the number of detainees held in border stations, where they fear the coronavirus could spread, the officials said. CBP currently has fewer than 100 detainees in custody, down from nearly 20,000 at this time last year during last year’s border crisis, officials said.
[[Under coronavirus immigration measures, U.S. is expelling border-crossers to Mexico in an average of 96 minutes]]
Since the implementation of the rapid expulsions, unlawful border crossings have dropped 56 percent, said acting CBP commissioner Mark Morgan. Morgan also acknowledged that the United States has all but closed its borders to asylum seekers who are fleeing persecution, including those who attempt to enter legally at U.S. ports of entry.
“Those who are undocumented or don’t have documents or authorization are turned away,” Morgan said.
Democratic lawmakers have accused the administration of defying U.S. laws and exceeding the authority of the coronavirus public health order, but Morgan defended the emergency measures as a necessary step to stop the spread of the disease.
“This is not about immigration,” Morgan said. “This is about public health. This is about putting forth aggressive mitigation and containment strategies.”
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
CBP said the number of migrants detained at the border fell to 33,937 in March, down 7 percent from February. Single adults from Mexico accounted for 70 percent to 75 percent of those taken into custody, and most of the remainder were from Central America’s Northern Triangle countries: Guatemala, El Salvador and Honduras.
The Mexican government has agreed to accept the rapid return of migrants from those nations at the border under an agreement reached with the Trump administration last month.
The recent expulsions include children who would otherwise be protected from rapid removal by U.S. anti-trafficking laws. Since the emergency order took effect, the United States has expelled nearly 400 underage migrants, according to the most recent tally by the Reuters news agency. The minors were released into Mexico or boarded onto planes and flown back to Central America without being transferred to the care of the U.S. Department of Health and Human Services.
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Read the rest of Nick’s article at the link.
It’s going to take more than a letter from Sen. Pat Leahy (D-VT) and other Dems to restore the Constitution and the rule of law. Indeed, with the help of J.R. and his Trumpist GOP majority on the Supremes, I would expect that asylum laws, like voting rights, Due Process, and other individual rights will remain a “dead letter” until we get both 1) regime change; and 2) reform in the appointment of Article III Judges.
There is little, if any, data right now to support the view that asylum seekers at the Southern Border have been a significant source for the initial spread of coronavirus in the U.S.; however, their arbitrary removal to other countries might have helped the worldwide spread of the disease.
Moreover, as COVID-19 spreads into the Gulag and the Immigration Courts from the rest of America, infections in those locations could help spread the virus, given the lawyers, Government employees, and contractors exposed at those dangerous locations. Nor were Asian Americans responsible.
We do, however, have some data to show that U.S. citizens and other travelers returning from Europe were inadvertently a source of the virus’s spread in New York, and that Trump’s ineptness and failure to heed early warnings contributed to the spread.
But, science and truth seldom have any meaning for Trump and his toadies. And, we also know that while Trump often falsely claims “victories” that are either fabricated or largely someone’s else’s, he never takes responsibility for his own many mistakes and shortcomings.
Happy to share my new article Mistreating Central American Refugees: Repeating History in Response to Humanitarian Challenge (forthcoming Hastings Race and Poverty Law Journal). The full article can be downloaded here.
Abstract:
In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.
Unfortunately, the lessons of the 1980s have been forgotten, or intentionally neglected. Beginning in 2014, once again large numbers of Central American asylum seekers—including women and children—are being detained. Asylum denial rates for migrants fleeing extreme violence are high. The mixed refugee flow continues to be mischaracterized as an illegal immigration problem. Many of the tactics used in the 1980s are the same today, including hampering the ability to obtain counsel. President Trump has taken the cruelty to the next level, by invoking claims of national security in attempting to shut down asylum by forcing applicants to remain in Mexico or apply for asylum in a third country. We should remember the lessons of the past. Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. We should be implementing policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.
Professor Hing’s article echoes one of the themes of some of my speeches and comments, although, of course, he approaches it in a much more scholarly and systematic manner.
Check out my speech here:
“JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
As most of the country remains in lockdown to curb the spread of coronavirus, nearly 150 immigrants are fearing for their safety as they fight for their release from a North Dartmouth, Massachusetts, detention facility.
From the few hours of television news they can watch each day, the detainees have learned that social distancing, along with proper sanitation, is the only way that they can protect themselves from infection. But that’s all but impossible at the Bristol County Correctional Center, where the detainees are held together in tight quarters without the protective equipment or sanitation resources necessary to protect themselves, they argue in a class action lawsuit.
They are among the 38,000 immigrants in detention across more than 130 private and state-run detention facilities nationwide. As of April 7, 19 detainees across 11 different facilities had tested positive for the virus — none of them in Bristol, though advocates say it’s only a matter of time before it hits or testing rates improve.
Only after outcry from immigrant advocates did US Immigration and Customs Enforcement recently institute national policies encouraging social distancing in its facilities and provide soap, hand sanitizer, cleaning supplies, and personal protective equipment. The agency also announced Tuesday that it would start releasing detainees who are medically vulnerable to Covid-19, the disease caused by the coronavirus; it has released 60 so far and has identified another 600 who would qualify.
But that’s only a fraction of the detainees nationwide. Unless the agency starts releasing detainees by the thousands, that means most will remain in confinement, despite the fact that they largely have no criminal history. There is, therefore, a national advocacy push for the administration to alter its enforcement priorities to release all detainees, or at least those who haven’t committed serious crimes; while immigrant advocates campaign for their release even in the best of times, their message has become even more urgent amid the outbreak.
In the meantime, those at Bristol remain in conditions that they fear could facilitate the spread of the virus, which can be carried by those who don’t exhibit symptoms.
For the more than 30 detainees with underlying medical conditions that make them vulnerable to complications from Covid-19, it’s an especially scary situation. So far, only 18 detainees have been ordered released as part of the lawsuit, and not all of them qualify as high-risk.
“We suffer from being separated from our families and loved ones,” 47 detainees wrote in a March 20 declaration. “To add on top of this, we are now living in fear.”
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Read the rest of Nicole’s article at the link.
Sheriff Thomas Hodgson claims that there isn’t an adequate“social safety net” for these detainees in the community. But, have he and DHS worked with the advocates seeking release and the community to see what testing and safe placements might actually be available? He has responsibility for the well-being of those in his custody. But, it doesn’t sound like he has anything approaching a rational plan to carry out his legal obligations.
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Former Judge Sue Roy reports:
The [Elizabeth] court was open today (and has been for days) and they had already started hearings this morning, with detainees and others in the courtrooms and the holding areas, when 2 detainees tested positive for COVID-19. They frantically shut down the court.
The Court is inside the detention center, uses the same antiquated ventilation system, same entrance, same guards and facility employees, etc.
And last week EOIR was trying to force Newark Immigration Judges to cover in Elizabeth IN PERSON.
The callousness and disregard for their own staff, much less everyone else, is staggering.
Sue
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Thanks for speaking out, my friend!
The mindless cruelty and bad judgment just “keeps on keeping on!”
WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.
EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change–litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.
Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.
Nearly 400 migrant children intercepted at the U.S.-Mexico border have been deported in the past two weeks under new border restrictions.
WASHINGTON/NEW YORK (Reuters) ― U.S. immigration officials have rapidly deported nearly 400 migrant children intercepted at the U.S.-Mexico border in the past two weeks under new rules billed as seeking to limit the spread of the novel coronavirus in the United States, according to government data seen by Reuters.
President Donald Trump’s administration implemented new border rules on March 21 that scrapped decades-long practices under laws meant to protect children from human trafficking and offer them a chance to seek asylum in a U.S. immigration court. Under the new rules, U.S. officials can quickly remove people without standard immigration proceedings.
Overall, U.S. border officials have expelled nearly 7,000 migrants to Mexico since the new procedures took effect, according to the data and a Mexican government official, who spoke on condition of anonymity. Of those, 377 were minors, the data showed.
The overall number of 7,000 was first published by ProPublica, but the figure for children deported has not previously been reported.
Around 120 of the minors, who arrived at the U.S.-Mexico border without a parent or legal guardian, were quickly sent on planes back to Guatemala, Honduras and El Salvador, according to data from March 27 to April 2. It was not clear whether the remainder of the children intercepted at the border were pushed back to Mexico or returned to their home countries during the preceding week.
U.S. Customs and Border Protection (CBP) declined to comment. The agency in the past has said that all people caught crossing illegally, including minors, could be subjected to the new restrictions, which aim to cut the time migrants arrested at the border are held in U.S. custody.
Before the pandemic of COVID-19, the potentially lethal respiratory disease caused by the novel coronavirus, unaccompanied minors caught at the border were placed in shelters run by the U.S. Department of Health and Human Services (HHS).
Children traveling with adults other than parents or legal guardians would also be classified as “unaccompanied” and put into HHS care, even if the adults they were traveling with were family members. Under the new rules, however, they are now called “single minors” and can be sent back to Mexico, according to a CBP official.
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Read the full story at the link.
Basically, Trump has repealed U.S. asylum and protection laws by unilateral action, with almost no “pushback” from Congress or the courts.
Since the early days of the Trump administration, an impassioned group of mental health professionals have warned the public about the president’s cramped and disordered mind, a darkened attic of fluttering bats. Their assessments have been controversial. The American Psychiatric Association’s code of ethics expressly forbids its members from diagnosing a public figure from afar.
Enough is enough. As I’ve argued before, an in-person analysis of Donald J. Trump would not reveal any hidden depths — his internal sonar could barely fathom the bottom of a sink — and these are exceptional, urgent times. Back in October, George T. Conway III, the conservative lawyer and husband of Kellyanne, wrote a long, devastating essay for The Atlantic, noting that Trump has all the hallmarks of narcissistic personality disorder. That disorder was dangerous enough during times of prosperity, jeopardizing the moral and institutional foundations of our country.
But now we’re in the midst of a global pandemic. The president’s pathology is endangering not just institutions, but lives.
TWITTER CHATS During these extraordinary times, Opinion columnists and writers will be going live on Twitter every weekday at 1 p.m. Eastern to chat with viewers. This was Jennifer Senior’s conversation.
Let’s start with the basics. First: Narcissistic personalities like Trump harbor skyscraping delusions about their own capabilities. They exaggerate their accomplishments, focus obsessively on projecting power, and wish desperately to win.
What that means, during this pandemic: Trump says we’ve got plenty of tests available, when we don’t. He declares that Google is building a comprehensive drive-thru testing website, when it isn’t. He sends a Navy hospital ship to New York and it proves little more than an excuse for a campaign commercial, arriving and sitting almost empty in the Hudson. A New York hospital executive calls it a joke.
Second: The grandiosity of narcissistic personalities belies an extreme fragility, their egos as delicate as foam. They live in terror of being upstaged. They’re too thin skinned to be told they’re wrong.
What that means, during this pandemic: Narcissistic leaders never have, as Trump likes to say, the best people. They have galleries of sycophants. With the exceptions of Drs. Anthony Fauci and Deborah Birx, Trump has surrounded himself with a Z-team of dangerously inexperienced toadies and flunkies — the bargain-bin rejects from Filene’s Basement — at a time when we require the brightest and most imaginative minds in the country.
Faced with a historic public health crisis, Trump could have assembled a first-rate company of disaster preparedness experts. Instead he gave the job to his son-in-law, a man-child of breathtaking vapidity. Faced with a historic economic crisis, Trump could have assembled a team of Nobel-prize winning economists or previous treasury secretaries. Instead he talks to Larry Kudlow, a former CNBC host.
Meanwhile, Fauci and Birx measure every word they say like old-time apothecaries, hoping not to humiliate the narcissist — never humiliate a narcissist — while discreetly correcting his false hopes and falsehoods. They are desperately attempting to create a safe space for our president, when the president should be creating a safer nation for all of us.
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Read the rest of the article at the link.
Yup, you heard it here @ “Courtside” long ago — kakistocracy is dangerous to our democracy and our health. Who could have known?
There is complicated news nabout voter suppression tonight out of Wisconsin. It has overridden today’s news of the extraordinary outburst of Trump’s acting Secretary of the Navy, Thomas Modly, who flew almost 8000 miles to Guam to harangue the sailors from the USS Theodore Roosevelt.
I’ll cover the Modly story later in the week, but for tonight, Wisconsin.
There is a crucial election there tomorrow that landed tonight at the US Supreme Court. The backstory is that in 2010, thanks to REDMAP the Republican Redistricting Majority Project I wrote about on Saturday, the Wisconsin legislature was controlled by Republicans. They worked to guarantee their control, gerrymandering the state so effectively in 2011 that in the 2012 elections, Republicans lost a majority of voters, but took 60% of the seats in the legislature. (They won only 48.6% of the votes, but took 61% of the seats.)
With this power, they promptly passed a strict voter-ID law that reduced black and Latino voting, resulting in 200,000 fewer voters in 2016 than had voted in 2012. (Remember, Wisconsin is a key battleground state, and Trump won it in 2016 by fewer than 23,000 votes.)
Now, there is a move afoot to purge about 240,000 more voters from the rolls, thanks to the old system called “voter caging.” The state sent letters to registered voters, largely in districts that voted Democratic in 2016, and those who did not respond to the letters have been removed from the voter rolls on the argument that the fact they didn’t respond to the letters must mean they have moved. Initially, the purge was supposed to happen in 2021, after the election, but a conservative group sued to removed them earlier and a conservative state judge, Paul V. Malloy ordered it done. Malloy’s decision has been appealed to the Wisconsin state supreme court, which has deadlocked over the issue by a vote of 3-3.
On tomorrow’s ballot is a contest for a seat on that court. The Republicans desperately want to reelect their candidate, Justice Daniel Kelly, who recused himself from the voter purge vote pending the election. Trump has endorsed Kelly, who will uphold the purge if he is reelected. Before the pandemic, observers thought Kelly’s opponent had a good chance of unseating him because of expected high turnout among Democrats. But now, of course, all bets are off, especially since the Democratic strongholds in the state are in the cities, where the residents are hunkered down.
The election was originally scheduled for tomorrow, but the pandemic has gummed up the works. A stay-at-home order went into effect in the state on March 25, and more than a million voters have requested absentee ballots. But this huge surge means the state is running behind and hasn’t been able to deliver the ballots. Meanwhile, roughly 7000 poll workers, who are volunteers and often elderly, have said they would not come manage the election, so a large number of polls can’t open. The city of Milwaukee, whose 600,000 people normally would have 180 polling places, will have five. Milwaukee tends to vote Democratic.
Wisconsin Governor Tony Evers, a Democrat, tried to get the Republican-dominated legislature to postpone the election or to mail ballots to all voters for a May 26 election deadline, but it refused. Over the weekend, the mayors of Wisconsin’s ten biggest cities urged the state’s top health official, Andrea Palm, to “step up” and use her emergency powers to replace in-person voting with mail-in voting, as Ohio did when faced with a similar problem. On Monday, Evers signed an executive order postponing the election until June 9—something even he was unsure he had the power to do, but he said he felt he had to try to keep people safe– but Republicans challenged the order and the Republican-dominated state Supreme Court blocked it.
Last Thursday, a federal judge permitted absentee ballots to be counted in the election so long as they arrived back to election officials by April 13, but Republicans immediately challenged the decision. Tonight, in a 5-4 decision, the US. Supreme Court refused to permit this extension of time for the state to receive absentee ballots, arguing (apparently without any self-awareness) that the federal judge made a mistake by changing the rules of an election so close to its date. This means that absentee ballots have to be postmarked tomorrow, even if the voter hasn’t gotten one by then.
The court insisted that the issue in the decision was quite narrow, and had nothing to do with the larger question of the right to vote. The four dissenting justices cried foul.
Writing for the four other judges in dissent, Justice Ruth Bader Ginsberg wrote that “the court’s order, I fear, will result in massive disenfranchisement.” “The majority of this Court declares that this case presents a “narrow, technical question”…. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety, or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”
The New York Times editorial board echoed Ginsburg, warning that what is happening in Wisconsin, where Republicans are trying to use the pandemic to steal an election, could happen nationally in 2020. This is why Democrats tried to get robust election funding in the $2.2 trillion coronavirus bill to bolster mail-in ballots, and why Trump said: “The things they had in there were crazy, they had things, levels of voting that if you ever agreed to, you would never have another Republican elected in this country again.”
This crisis in Wisconsin has national implications. The reelection of Kelly will likely mean Wisconsin loses another 240,000 voters, most of them Democrats. This will increase Trump’s chances of winning the state in 2020, and Wisconsin is likely key to a victory in the Electoral College.
This is why I watch the minutia of politics so carefully. It’s hard to imagine that the election of a state judge in Wisconsin matters to our nation of fifty states and 330 million people, but it does. Oh, boy, does it.
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Remember, if more voters turn out, Trump & the GOP lose. The “J.R. Five” will be doing everything in their power to make sure that doesn’t happen. That’s why it’s critical for Dems to get out the vote and create a “Roberts-proof” majority. Also, winning the Senate is the way to start pushing back on the J.R.Five’s plans to dismantle democracy and with it any semblance of equality in America. Voter suppression is just the beginning.
President Donald Trump removed the inspector general set to probe corruption and provide oversight of the government’s massive response to the economic downturn caused by the coronavirus pandemic on Tuesday, the last sign of his disdain for any oversight of his administration.
The $2 trillion coronavirus response law, passed last month, set up a panel of 10 inspectors general to serve as watchdogs as the government tries to limit fraud, wrongdoing and mismanagement. That panel, dubbed the Pandemic Response Accountability Committee, selected Fine — who was the acting Pentagon inspector general and is a former Justice Department inspector general — to lead them.
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Read the full article at the link.
Trump got the GOP’s message loud and clear: Destroy away, we will never hold you accountable for any abuse!
Vote Like Your Life Depends On It this November! Because It Does!
Kate Morrissey reports for the San Diego Union Tribune:
On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.
In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.
This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.
“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”
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Read the rest of Kate’s article at the above link.
Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.
Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.
Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.
PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
<div class=”player-unavailable”><h1 class=”message”>An error occurred.</h1><div class=”submessage”><a href=”http://www.youtube.com/watch?v=qGDrc_rvPZI” target=”_blank”>Try watching this video on www.youtube.com</a>, or enable JavaScript if it is disabled in your browser.</div></div>
Video by Frankie McLister/Cronkite News
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
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Read Kelly’s full article at the link.
Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”
On Monday, by a 5–4 vote, the U.S. Supreme Court approved one of the most brazen acts of voter suppression in modern history. The court will nullify the votes of citizens who mailed in their ballots late—not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic. As Justice Ruth Bader Ginsburg wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.
Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19. Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two. Gov. Tony Evers asked the Republican-controlled legislature to postpone the election, but it refused. So he tried to delay it himself in an executive order on Monday. But the Republican-dominated state Supreme Court reinstated the election, thereby forcing voters to choose between protecting their health and exercising their right to vote.
Because voters are rightfully afraid of COVID-19, Wisconsin has been caught off guard by a surge in requests for absentee ballots. Election officials simply do not have time, resources, or staff to process all those requests. As a result, a large number of voters—at least tens of thousands—won’t get their ballot until after Election Day. And Wisconsin law disqualifies ballots received after that date. In response, last Thursday, a federal district court ordered the state to extend the absentee ballot deadline. It directed officials to count votes mailed after Election Day so long as they were returned by April 13. A conservative appeals court upheld his decision.
The U.S. Supreme Court has overturned the only protection in place to ensure that voters could still safely cast ballots.
Now the Supreme Court has reversed that order. It allowed Wisconsin to throw out ballots postmarked and received after Election Day, even if voters were entirely blameless for the delay. (Thankfully, ballots postmarked by Election Day but received by April 13 still count, because the legislature didn’t challenge that extension.) In an unsigned opinion, the majority cited the Purcell principle, which cautions courts against altering voting laws shortly before an election. It criticized the district court for “fundamentally alter[ing] the nature of the election by permitting voting for six additional days after the election.” And it insisted that the plaintiffs did not actually request that relief—which, as Ginsburg notes in her dissent, is simply false.
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Read the rest of Mark’s article at the link.
Just last week Trump admitted that if more Americans voted, “you’d never have a Republican elected in this country again.”
John Roberts and his fellow GOP partisans on the Supremes got the message loud and clear. Although, they didn’t really need much direction from their Great Leader, since the GOP Supremes have scarcely ever seen a civil rights or voting rights law that they didn’t want to gut and pervert.
With markets wobbling, unemployment rising, and Trump’s “malicious incompetence” threatening American lives every day, the GOP hopes for November could depend on large-scale disenfranchisement and massive voter suppression. And, the J.R. Five have made it clear that they are primed and ready to twist and manipulate the law as necessary to guarantee their party’s minority stranglehold on government.
So much for “just calling balls and strikes.” Nope! The J.R. Five “resizes the strike zone” as necessary to guarantee victory for “their team” and defeat for American democracy.
In the words of the Supreme Court, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.
The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor.The ultimate test is whether the decision was reasonable.
What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society.As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.
In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.
How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.
As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention.And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.
The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6
The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum.These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.
Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.
Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.
In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point.The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes.One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings.The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.
Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel.As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later.None were seeking to abscond; all sought only their day in court.And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.
My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.
So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.
The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal.But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?
As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.
Notes:
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.
24 I&N Dec. 37 (BIA 2006).
Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
27 I&N Dec. 803 (BIA 2020).
Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.
Matter of Guerra, supra at 40.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!
By Paul Wickham Schmidt
“Courtside” Exclusive
April 6, 2020
Jeffrey and I both get to pretty much the same “bottom line” here. But, as usual, he is more “nuanced” in his approach.
Certainly, the DOJ’s two-decade program, under Bush, Obama, and now Trump, of systematically excluding from the BIA (and also largely from the Immigration Judiciary, with a more than 9-1 government/private sector hiring ratio) any acknowledged immigration and human rights expertise from those who actually represent and work with asylum applicants is paying huge dividends for Trump’s nativist immigration agenda.
A “captive BIA” well-attuned to “not rocking the boat” and “implementing the Attorney General’s priorities” abandons due process and fundamental fairness for individuals. Instead, they crank out an endless stream of one-sided pro-DHS-enforcement “precedents.”
Led by the Supremes’ “supreme abdication of judicial duties” in Chevron and Brand X, the Courts of Appeals and sometimes the Supremes themselves “defer” to “any old interpretation” by the BIA rather than undertaking the more challenging search for the “best interpretation.” In immigration law, “deference” to the BIA “tilts the playing field” overwhelming in favor of DHS and against individuals and due process.
And, if the BIA occasionally lets the immigrant “win” or at least not outright “lose,” one or two precedents, Sessions, Whitaker, and Barr have shown a frequentwillingness to merely step in and change the results. Sometimes, they do this on cases decided years ago, even when DHS doesn’t ask them to. They openly and aggressively are carrying out a predetermined White Nationalist, nativist agenda. Because, they can!
If this sounds like a parody of due process, that’s because it is! But, the Supremes and the rest of the Article IIIs have been studiously looking away while due process, fundamental fairness, and equal protection are trampled in Immigration Court for more than a half-century. Why step up to the plate now?
Although it’s hard to do under Chevron, the BIA does sometimes so clearly ignore the statute or come up with such “off the wall” interpretations that the Article IIIs occasionally have to distinguish Chevron and intervene. In other words, generally screwing immigrants is OK by the Article IIIs; but, at some point looking totally feckless or downright idiotic by rubber stamping the BIA’s most outlandish anti-immigrant rulings is a “no no.” Bad for their reputations, law school speaking tours, and recruitment of the “best and brightest” clerks that the “Supremos” and other Article IIIs enjoy so much.
Another “big advantage” of a captive and fundamentally unfair BIA is that its “perversions of justice” become a “self-fulfilling prophecy.” The respondent inR-A-V-P- should not only have been released on bond, but his asylum case could easily have been granted in a “short hearing” in a system committed to a fair interpretation and application of asylum law. That might have led to the release of others and the more efficient granting of other similar cases. That actually would be an huge step forward in a dysfunctional system running a largely self-inflicted backlog of approximately 1.4 million cases.
Instead, denying meritorious cases creates hugely inflated denial rates. This supports the Trump Administration’s intentionally false narrative that all asylum claims are frivolous or fraudulent.
And, naturally, if the claims are overwhelmingly non-meritorious, who cares if we give asylum applicants any due process or not. Just summarily deny them all and you’ll be right 90% of the time.
That’s probably why Trump has gotten away with his biggest outrage: Simply eliminating the statutory right to apply for asylum at the border by Executive fiat, confident that the Supremes and the Article IIIs will never have the guts to effectively intervene and hold him accountable merely for arbitrarily inflicting potential death sentences on asylum seekers. After all, they are just “aliens,” not really “humans” or “persons” under the warped views of the Roberts’ Court majority! “Dred Scottification in action.”
Also, by denying meritorious claims for asylum seekers already in the U.S., the BIA“sends a message” that asylum seekers shouldn’t bother applying — they can’t and won’t win no matter how meritorious their cases. And, what’s more, the BIA will use the manipulated, improperly inflated “denial rates” to show that there is “little likelihood of success” on the merits of any asylum claim.
Under R-A-V-P–, this virtually guarantees punitive DHS detention, serving as both a punishment for asserting rights and a further deterrent to asserting claims in Immigration Court. Heck, in a “best case scenario” for Trump, COVID-19 will wipe out all detained asylum seekers, thereby eliminating that “problem.”
The system is a farce. But, it is a farce that both Congress and the Article IIIs have enabled.
Asylum seekers and other migrants deserve justice from America. When they will finally get it from a system intentionally rigged against them, and judges and legislators all too often unwilling to acknowledge or recognize their humanity, remains to be seen.
