"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.
Since taking office, President Trump’s administration has rained a hailstorm of policy actions on refugees and asylees. A newly published analysis identifies three types of policies: those that abandon longstanding U.S. legal principles and policies, most notably non-refoulement and due process; those that block the entry of refugees and asylees; and those that criminalize foreign nationals who attempt to seek asylum in the United States. Simply put, these are the As (abandoning), Bs (blocking) and Cs (criminalizing) of the Trump administration policies on refugees and asylees.
Historical antecedents of Trump’s policies may be found in the refusal to accept Jews fleeing Nazi Germany during World War II (abandoning) and the interdiction of Haitians trying to escape the violent regime of then-dictator Jean-Claude Duvalier that began in 1981 (blocking). The Trump administration’s “zero tolerance” policy of prosecuting even minor immigration offenses (criminalizing) harkens back to the early 20th century when the eugenicists warned of “inferior aliens” who were likely to be insane or criminal; however, now the federal government keeps asylum seekers locked in detention centers, often under contracts with the private prison industry. The criminalization of refugees and asylees in conjunction with the comprehensive sweep of his initiatives abandoning and blocking refugees and asylum seekers has sent U.S. humanitarian protection policy to an unprecedented nadir.
There is little evidence of a policy evolution or maturation over time. The Trump administration opened in 2017 with policies exhibiting all three ABCs: abandoning refugee admissions; blocking Syrian nationals from refugee resettlement; and expanding expedited removal and detention. The administration’s efforts to criminalize asylum seekers reached a crescendo in 2018 with “zero tolerance.” Policy initiatives in 2019 again drew on all three ABCs: A) setting refugee admissions for fiscal year 2020 at the lowest level since the passage of the Refugee Act of 1980; B) allowing state and local officials to refuse placement of refugees; and C) detaining migrant children and families indefinitely, including those arriving to seek asylum.
. . . .
Generous humanitarian policies require energetic civic engagement and steadfast legislative efforts. Restoring the policies of the past will not be sufficient in the years ahead, because past policies were prone to inequities and bottlenecks that arguably had a magnet effect for migrants with less compelling cases, and most certainly delayed relief for those who qualified. Policymakers would be wise to weigh the advice of researchers, experienced advocates and legal experts who call for the repeal of three particularly harmful provisions: the one-year deadline for filing asylum applications, expedited removal, and “safe third country” agreements.
A sound course of action is for Congress to establish, and the administration to execute, robust and fully funded refugee and asylum policies that are generous in their priorities, thorough in their review, and expeditious in their processing.
Ruth Ellen Wasem is a professor of policy practice at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin, and a fellow at the Bipartisan Policy Center. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. Follow her on Twitter @rewasem.
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Read Ruth’s complete article at the link.
We need a progressive, realistic, humane refugee and asylum policy.
A prerequisite to these efforts is an independent Article I U.S. Immigration Court comprised of judges with real life experience, demonstrated expertise in refugee and human rights laws, an unswerving commitment to guaranteeing due process and fundamental fairness for all, and the courage to stand up for the Constitutional and human rights of the most vulnerable among us, even in the face of abuses and bias from the other branches of Government.
The current legal framework for protection, although in need of forward looking reforms, is nowhere near as unfair, inhumane, dysfunctional, deadly, and counterproductive as the Trump regime has made it. Why? Because, for the most part, the Federal Courts have “gone along to get along” with the regime’s lawless nativist, restrictionist schemes and gimmicks, rather than standing up for due process, equal protection, fundamental fairness, human rights, and human decency.
That’s a serious problem for democracy. One that demands a critical re-examination of whom we are selecting for our Federal Judiciary and why, as a group, they have performed so poorly in thwarting racist and hate-driven tyranny by an out of control and fundamentally dishonest, bigoted, and biased regime!
Vice President Mike Pence raised eyebrows with his latest praise of President Donald Trump, which critics described as “ridiculous” and “embarrassing.”
“I always tell people that to know President Trump is to know someone whose word is his bond,” Pence claimed Thursday during a “Life Wins!” event in Raleigh, North Carolina.
. . . .
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Read the full article at the link.
Perhaps what Mikey Moron meant to say is “whose word is as bogus as a $3 bill” (isn’t that the one with the Liar-in-Chief’s picture on the front?)
I actually think words like “ridiculous” and “embarrassing” are far, far too kind to this shameless butt-kisser, moral coward, incompetent executive, and betrayer of American democracy and human decency! He’s part of the “Evil Clown Show” ☠️🤮🤡 that has killed tens of thousands of American citizens as well as an untold number of refugees, asylum seekers, and other migrants, put innocent kids in jail, and caused unfathomable pain and suffering to name just a few of the gross misdeeds in which he has had a supporting role.
Has there ever in history been a more outlandish incumbent ticket of “proven malicious incompetency?”
This November, vote like your life and the future of our nation depend on it! Because they do!
Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873
Former Klan leader David Duke once famously urged his fellow Klansmen to “get out of the cow pasture and into hotel meeting rooms” if they hoped to accomplish their goals.
The message was clear: A hate group with a mainstream veneer can get much further than a hate group that looks like one. It’s a lesson the radical right seems to have heeded as more hate groups monitored by the Southern Poverty Law Center present a mainstream face to the public as they peddle academic racism, white nationalist immigration policy or other beliefs that are every bit as corrosive to our nation as the beliefs spouted by someone in Klan or neo-Nazi garb.
The Federation for American Immigration Reform (FAIR) is one such hate group masquerading as a public policy think tank. Inspired by a recent resolution by the Republican National Committee that was aimed at giving the Trump administration cover for its racist and bigoted policies, FAIR decided to attack the SPLC’s hate group designations, claiming the SPLC is the “godfather” of “cancel culture” and is willing to attack any group that is not “woke” enough.
These allegations are nothing more than the latest fearmongering dog whistles that have been used by white supremacists to silence organizations and people – particularly people of color – when they speak out against injustice.
FAIR maintains that it “advocates mainstream immigration policy views.” Nothing could be further from the truth.
In fact, the group has long advocated upending the Immigration and Nationality Act of 1965, a law that ended a decades-long, racist quota system limiting immigration mostly to northern Europeans. In 1994, FAIR President Dan Stein said supporters of the act wanted to “retaliate against Anglo-Saxon dominance.” In 2011, FAIR launched an effort to end birthright citizenship provisions of the 14th Amendment, which is how most Americans become citizens.
Kris Kobach, who worked for FAIR’s legal arm, the Immigration Reform Law Institute, helped write Arizona Senate Bill 1070. Known as the “papers, please” law, the anti-immigrant law forced police officers to detain people they suspected of being undocumented immigrants and made it a misdemeanor for noncitizen immigrants to fail to carry their immigration papers.
Kobach also helped other states and communities across the country enact nativist laws designed to punish those who aid and abet “illegal aliens.” Those laws often proved to be massive financial burdens to the governments that passed them and, in many cases, sparked racial strife.
FAIR’s demonization of immigrants was laid bare in April 1999 when the group attacked then-U.S. Sen. Spencer Abraham, a Michigan Republican, for supporting more visas for foreign workers with technology skills. A FAIR newspaper ad placed a picture of Abraham, an Arab American, alongside a photo of Osama bin Laden and asked, “Why is a U.S. Senator Trying to Make It Easy for Osama bin Laden to Export Terrorism to the U.S.?”
What’s more, Donald A. Collins Sr., a member of FAIR’s advisory board and board emeritus, has written for VDARE, an anti-immigrant hate site that has a long history of publishing the works of white nationalists and antisemites. The site is named after Virginia Dare, said to have been the first English child born in the New World. Joe Guzzardi, a FAIR advisory board member, has worked as a VDARE editor.
It’s not “rocket science” to figure out FAIR isn’t a “woke” group. Nor is it rocket science to acknowledge that Kris Kobach, Stephen Miller, Jeff Sessions and others like them are White Nationalist racists!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round TableHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesLaura Lynch Senior Policy Counsel AILA
Ex-Immigration Judges Say NJ Court Risking Public Health
By Sarah Martinson
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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.
In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.
The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.
“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”
In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.
The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.
The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.
The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.
“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.
In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.
A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.
AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”
“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.
Counsel for the federal government declined to comment Wednesday.
AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.
NJ Immigration Attys Can’t Stop In-Person Hearings For Now
By Jeannie O’Sullivan
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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.
During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.
The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.
“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”
The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.
“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.
Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.
“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”
The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.
The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.
The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.
The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.
The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.
Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮
I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?
When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?
To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!
I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!
It is entirely fitting that Donald Trump — the least law-abiding president in our history — was renominated at a convention that was itself a seeming cavalcade of crime. Every night featured apparent violations of the 1939 Hatch Act, which prohibits federal employees from engaging in political activities “in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States.”
The White House certainly qualifies as such a facility. Yet Trump used it as a convention prop, even going so far as to televise a naturalization ceremony for immigrants — some of whom did not realize they would be shown at the Republican convention — as part of the nightly show. Trump not only flouted the law but also reveled in doing so. During his acceptance speech, he boasted, “We’re here — they’re not,” and the New York Times reported that Trump “relished the fact that no one could do anything to stop him.”
While the president is exempt from the civil provisions of the Hatch Act, he could be subject, once he leaves office, to criminal penalties if he should “intimidate, threaten, command, or coerce … any employee of the Federal Government … to engage in … any political activity.” That is a crime punishable by up to three years in prison.
This is, of course, barely scratching the surface of an administration that should more accurately be described as an ongoing criminal conspiracy. While many of Trump’s awful acts — e.g., confining children in cages or unleashing riot police on peaceful protesters — are merely violations of democratic norms, there is also plentiful evidence of lawbreaking on his part.
The U.S. attorney for the Southern District of New York has identified Trump as “Individual-1” in a conspiracy with his attorney Michael Cohen to violate campaign finance laws by secretly paying off two women with whom Trump allegedly had affairs. Cohen went to prison; Trump, who as president claims immunity from prosecution, wasn’t indicted.
Special counsel Robert S. Mueller III uncovered a great deal more potential illegality. He found 10 instances when Trump might have obstructed justice, and in at least four of those cases he found evidence that Trump’s conduct met all three elements of the obstruction-of-justice statute. Each violation carries a maximum penalty of 20 years in prison. The recent report from the Senate Intelligence Committee suggests that Trump also lied to Mueller when, in written testimony, he claimed not to remember speaking to Roger Stone about WikiLeaks. If he committed perjury, that would subject him to up to five years’ imprisonment.
. . . .
Trump could try to short-circuit justice by seeking to pardon himself before he leaves office — or even by resigning a few hours early and having Vice President Pence sworn in to issue a pardon (as President Gerald Ford did for Richard Nixon). In that case, the special counsel would be limited to investigating Trump’s accomplices (unless they are also pardoned) and helping state prosecutors. But the special counsel should still issue a comprehensive report on Trump’s lawbreaking. We must expose and root out this ethical rot before it eats away at the foundations of our democracy.
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Read the rest of Boot’s article at the link. Actually, Max understates the case. Trump long ago ate the ethical underpinnings of American democracy for lunch, with the “JR Five” providing “table service.”
Under “normal” circumstances, the scenario outlined by Boot in his final paragraph would be beyond preposterous! But, in the failed state of American democracy under Trump, it’s perfectly plausible. Whose going to stop him from the “final abuse and mockery of our republic?” Feckless Congress? The Supremely and Serenely Complicit ones? No way. Trump will exploit the moral cowardice and spinelessness of the other failed two branches of Government until the end!
It started about the time that Roberts and his colleagues threw Muslims, refugees, and migrants under the bus in their ridiculously wrong and intellectually dishonest “Travel Ban Fiasco.” The “Dred Scottification” of migrants and people of color and open corruption, aided and abetted by Roberts and his gang, have continued largely unabated since then.
Max’s use of the term “rot” brings to mind the refugees from many nations, most people of color, rotting in Mexico, futilely waiting for “asylum hearings” that might never come and where denial without due process has been predetermined. This is what “American Justice” has become under Trump, Billy the Bigot, Wolfman the Illegal, and Roberts the Complicit!
Actually, separating families, misrepresenting the policy to Federal Courts, and long-term “civil” detention of families in life-threatening conditions as a “deterrent” to exercising important, fundamental legal and human rights might well be criminal violations in a functioning justice system. Sadly, America basically lacks the latter these days because of the Supremes’ coddling of the “crimes against humanity” committed by Trump, Miller, Barr, Wolf, Cooch, and their co-conspirators.
As those of us with experience adjudicating asylum cases know, lack of accountability before the courts and failure of the judiciary to exercise independent judgment to control a corrupt and tyrannical executive are hallmarks of failed states and banana republics.
Let’s see! America’s founders created an independent judiciary to insure the right of the “King” to use the Government as his personal servants to violate the Bill of Rights, exploit the nation for his own gain, and create “alternate Kings’ Courts” where the “judges” are his employees, he makes the rules, the results are largely preordained by the King’s personal biases and the interests of his royal cronies, and the penalty can be “death without due process.” Not likely!
But, that’s what happens when judges’ fealty to ideology, party, or personality often exceeds their loyalty to the Constitution and to the human rights and human dignity of their fellow men, women, and children. It happens when we create an elitist, right-leaning judiciary, out of step with and non-representative of the majority of Americans, where actual knowledge and experience defending the human rights of individuals against Government overreach, courage to speak truth to power, and demonstrated unswerving commitment to equal justice under law is far, far undervalued, even intentionally ignored. Where practical problem-solving skills and human empathy, perhaps the two most important qualities for fair and honest judging, are all too often disrespected and even demeaned.
Better Federal Judges for a better, fairer, functional America! One where the humanity of all persons is honored and respected, rather than being mocked by those in positions of power and privilege. One where the highest Court finally stands up for and enforces the hard-fought Constitutional right to vote, regardless of skin color or ethnicity, rather than aiding and abetting the blatant schemes of the GOP to suppress voting and deny deserved political power to Americans of color. One where an honest Court enforces to the maximum degree the Voting Rights Act rather than intentionally and disingenuously gutting it at the demand of some in the White power structure.
These travesties have unfolded right in front of us. Yet, even so called “liberal-progressive” commentators largely shrug them off as somehow “normal” or “just the way the system functions.” That’s BS! It’s “judicial malpractice.” It’s a major reason why two centuries after our founding we have not yet achieved racial justice and why our nation is coming apart at the seams under grotesque misgovernance and judicial complicity.
The current Federal Judiciary has facilitated the takeover of our Government by an ongoing criminal conspiracy, as described by Boot. We need change! Sooner rather than later! And, it can’t and won’t happen with the current cast of characters in the Executive, the Senate majority, and the Article III Judiciary.
PANEL: THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.
OPINION BY: Judge Quattlebaum
DISSENTING OPINION: Judge Stephanie D. Thacker
KEY QUOTES FROM JUDGE THACKER’S DISSENT:
The majority opinion begins its analysis with a reminder of the applicable standard of review, emphasizing the importance of deference in this context. But the majority fails to mention a threshold requirement for the application of deference — in order to be accorded deference, agency decisionmakers below must conduct sufficient analysis to which we can defer. See Cordova v. Holder, 759 F.3d 332, 338 (4th Cir. 2014) (“[T]he Supreme Court long ago instructed that ‘the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’” (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943))). Here, neither the Immigration Judge (“IJ”) nor the Board of Appeals (“BIA”) provide even the bare minimum level of explanation that our precedent requires. This failure is an abuse of discretion.
The agency decisions here are precisely the kinds of cursory opinions we have repeatedly rejected for their failure to engage with an applicant’s arguments and evidence. I therefore respectfully dissent.
. . . .
In conclusion, I borrow from the majority opinion, which likens the standard of review to an offensive lineman in football. In light of the limited analyses below, which were at worst nonsensical and cursory at best, the standard of review “offensive lineman” in this case cannot protect the decision below. Instead, the weak analysis of the agencies left their blind side wide open.
I dissent.
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“[A]t worst nonsensical and cursory at best.” Those prophetic words from Judge Thacker’s dissent should outrage every American! Don’t vulnerable individuals, effectively on trial for their lives, deserve better from the U.S. Justice system? Is the “half-baked” standard applied by the panel majority really the way we would want ourselves or our loved ones judged in any matter of importance, not to mention what is in many ways a “capital case?” What’s going on in our Article III Judiciary?
Read the full opinion at the link. This is a prime, very disturbing example of the “any reason to deny” standard used by the Trump regime to subvert justice for asylum applicants of color. Here, as effectively pointed out by Judge Thacker it was (laboriously and wordily) “rubber stamped” by twocomplicit Article III Judges.
To call this “second class justice” would be far too generous. It’s basically no justice at all and a damning illustration of how intellectual absurdity and race-driven results have become institutionalized and acceptable, not just in the Immigration Courts, but in various places throughout our judicial system that is failing to deliver on the Constitutional requirement of “equal justice for all.”
Any activists who think that the problems of racial tension in America are going to be resolved without addressing the systemic judicial failure to stand up against the illegal, racially-biased mistreatment of asylum seekers and other migrants by the likes of Trump, Miller, Sessions, Barr, and Wolf, as enabled by the Supremes and other Article III Judges who have “swallowed their whistles,” is mistaken.
As cogently pointed out by Judge Thacker, this was a “no brainer remand” under any application of the proper standards. Indeed, the panel majority spent more time and effort, and killed more trees, looking for ways to “paper over” the BIA’s indefensible and unprofessional performance than it would have taken them to correct it! This panel majority appeared much more interested in “rehabilitating the BIA” and “codifying injustice” (probably as an aid to rubber stamping more assembly line injustice in the future) than it was in achieving justice for the young man whose life was at stake.
Indeed, Judge Quattlebaum and Judge Rushing are so arrogantly “tone deaf” and impervious to human suffering that they employ a “snarky sports analogy” in essentially imposing a potential death sentence on a young Salvadoran refugee without any serious pretense of due process or effective and intellectually honest judicial review. Is this how Quattlebaum and Rushing would like to be “judged” if they or their loved ones (or someone they considered “human”) were on trial for their lives? No way! So why is it “due process” for this young man?
Obviously, these are two judges who are confident in a privileged life “above the fray” that puts them beyond moral and legal accountability for the unjust human misery and suffering that they cause. It’s all a “sports joke” to them. But, not so funny to those whose lives are at stake in what once was supposed to be a serious legal process but now has devolved into a deadly and totally dysfunctional “Clown Show.”
It’s also a national disgrace and a serious indictment of our entire justice system that this type of clearly “dangerous and defective judging” goes on in our life-tenured judiciary. America deserves better from our Article III Judiciary!
JUST WATCHED
Barr’s response to Trump’s claim stuns CNN reporter
Replay
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Barr’s response to Trump’s claim stuns CNN reporter 02:21
Washington (CNN)Attorney General William Barr made a series of false and misleading claims in a contentiousinterview with CNN’s Wolf Blitzer on Wednesday.
Barr also made additional claims that have not been proven or were lacking in context. Here are fact checks of some of his remarks.
Blitzer noted that the intelligence community’s top elections official said that Russia is working to help President Donald Trump get elected, while both China and Iran prefer Democratic opponent Joe Biden to win. Blitzer asked Barr: “First of all, do you accept that Russia is once again interfering in the U.S. presidential election?”
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Barr said, “I accept that there is some preliminary activity that suggests that they might try again.”
Facts First: The intelligence official, William R. Evanina, said that Russian interference is happening now, not that Russia “might” try to interfere. In an August statement, Evanina said, “We assess that Russia is using a range of measures to primarily denigrate former Vice President Biden and what it sees as an anti-Russia ‘establishment.'”
Barr went on to tell Blitzer that he was talking about two kinds of Russian activities: hacking emails to disclose embarrassing documents, and the use of social media. Evanina’s August statement said that Russian social media influence efforts were already underway: “Some Kremlin-linked actors are also seeking to boost President Trump’s candidacy on social media and Russian television.”
On Wednesday, ABC News reported that in July, the Department of Homeland Security withheld an intelligence bulletin warning of a Russian plot to spread misinformation regarding Biden’s mental health.
Mail voting and fraud
Barr said, “Elections that have been held with mail have found substantial fraud and coercion.”
Facts First: This is such an over-generalization, we can call it false: all evidence shows that fraud in mail voting is extremely rare. While a 2020 city council race in New Jersey and a 2018 congressional race in North Carolina were allegedly marred by substantial fraud involving mail ballots, such cases are highly uncommon. Jurisdictions that have long conducted elections primarily by mail, such as the reliably Republican state of Utah, have done so without significant incident.
Foreign countries and interference with mail voting
Blitzer asked Barr what is the basis for his claims that foreign countries could make a large number of fake ballots and send them in without detection, Barr said, “I’m basing that on logic.”
Facts First: Experts on voting say Barr’s “logic” is wrong. They say it would be extraordinarily difficult for a foreign country, or anyone else, to succeed with a counterfeit ballot scheme.
“Mail-in ballots are very hard to duplicate on the fly. Each jurisdiction has their own ballot format, form of paper, and races differ for voters by their respective districts,” Rick Hasen, a University of California professor of law and political science and a prominent expert on election law, wrote on Twitter.
“Ballot envelopes also often contain coding that helps election officials track them. Ballot forms must contain certain information that must be verified, like a signature, identification information, and sometimes witness requirements. These would all have to be faked, and done in a way to escape attention.”
“Of all the ridiculous schemes that have been floated by the President or AG (William) Barr for how mail-in ballot fraud could affect the election, the possibility of a foreign entity swaying election by mailing fraudulent absentee ballots is the most ludicrous,” said Hasen.
. . . .
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You can read about the rest of Barr’s lies, distortions, and evasions at the link.
Let’s see, an unethical, race-baiting, congenital liar, & established Trump toady as the head of the Justice Department! What could go wrong?
Trump has everyone living in a parallel universe where, as Rudy would say, “truth isn’t truth” and “alternative facts” (a/k/a outright lies) rule!
By Elizabeth Méndez Berry and Mónica Ramirez in The NY Times:
Ms. Méndez Berry is a journalist, cultural critic and editor. Ms. Ramírez is the founder of the Latinx House, and the author of the “Dear Sisters” letter that helped inspire the Time’s Up movement.
The story about Latinos in America is an old one. And it isn’t true. Created generations ago by whites to demonize Mexicans and then Puerto Ricans, the racist caricature of Latinos as a menacing foreign monolith persists, even as two-thirds of us were born here and we come from more than 20 different countries.
While we are everywhere in this country, from big cities to small towns, Latinos are largely missing from American media and culture, which makes us vulnerable. President Donald Trump knows this and exploits these fictions for political gain.
Mr. Trump has accomplices. White gatekeepers in media, art and entertainment have long excluded or misrepresented Latinos, particularly Indigenous and Black Latinos, building the cultural scaffolding for the current administration. To defang these old falsehoods, we have to go after their enablers, transform media and cultural power structures and amplify and defend Latino storytellers. We must flex our power as a community.
Representative Joaquin Castro of Texas gave voice to this in a recent column for Variety: “There is a dangerous nexus between the racist political rhetoric and the negative images of Latinos as criminals and invaders that Americans see on their screens.” Mr. Castro added, “Hollywood needs to reckon with its systemic injustice and exclusion of our communities.”
Indeed, all media and culture industries must be held accountable, along with the advertisers, investors and funders who bankroll their behavior.
. . . .
We are the second largest ethnic group in this country. Many of us were here before the ancestors of most people who call themselves Americans. Others came as casualties of U.S. colonial experiments, covert operations and trade deals.
No matter how we got here or when, this country should be grateful for the Latino community: during this pandemic, farmworkers, 80 percent of whom are Latino, have put food on the table for us all and scores of other Latino workers have propped this country up, often at great cost to themselves.
The United States must reckon with the fact that Latinos are essential to its survival and to its splendor, and have been for generations. We Latinos need to know it too.
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Read the full article at the link.
Another place where Hispanics are spectacularly under-represented is among the ranks of U.S. Immigration Judges. It’s largely a bastion of White male, White female power, with a smattering of African Americans and Asian Americans thrown in. Very few judges of Hispanic ancestry.
Worse yet, a number of Immigration Judges appointed or promoted by this regime have notorious records of anti-immigrant, anti-asylum bias. Much of this bias has been directed specifically against Latino asylum seekers from Central America, particularly women refugees fleeing well-documented systematic persecution because of gender.
The Trump regime’s overtly racist attack on Hispanic migrants, particularly women, children, and asylum seekers, obviously has a larger target: Hispanic Americans as a group, the legitimacy of their political power as citizens, and their very humanity. As I say over and over, it’s what “Dred Scottification,” and its acceptance and disgusting furtherance by a majority of our highest Court, is all about!
Hispanics are going to have to fight fortheir fair share of power at the ballot box, no easy task given the GOP’s all-out assault on minority voting rights and the Supremes’ majority’s disgraceful failure to defend the voting rights of Americans of color.
But, it would be in everyone’s interest if we stopped playing the “race game” in America and actually made equal justice and full participation by all in society, regardless of race, the touchstone of a better future for America. Only then, will we rid ourselves of the unnecessary burdens of the past and reach our full potential as a nation of peace, prosperity, productivity, creativity, and humanity!
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.
PANEL: MULLANE, KELLY, and GORMAN, Appellate Immigration Judges
OPINION BY: GORMAN, Appellate Immigration Judge
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30 days to file an application for asylum for an unrepresented, detained, non-English speaking applicant appearing by televideo, huh? “Full and fair hearing?” Only in the “Never Never Land” of EOIR in the 5th Circuit,
I can guarantee that this bogus “30-day-filing standard” will be used to railroad lots of hapless and clueless asylum applicants out without due process.
The good news: Outside the “Judicial Wasteland” of the Fifth Circuit, at least some reviewing Circuits likely will “blow the whistle” on this disingenuous nonsense and abdication of Constitutional duties and send the cases back to the meat packing plant (a/k/a EOIR) for redos, thus adding to the “Aimless Docket Reshuffling” and astronomical backlog.
There is actually a reason why fundamental fairness and competent court management are required by Due Process! In the long run, following the Constitution and the statute, as well as having “judges” with actual expertise, independence, courage, and some “practical common sense,” as opposed to EOIR’s endless “haste makes waste” enforcement gimmicks and one-sided, bias-driven judging, makes for a more efficient justice system for everyone. But, that will require a “full housecleaning” at EOIR.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT — 08-31-31 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
COVID-19
Note: Policies are rapidly changing, so please verify the latest information on the relevant government websites and with colleagues on listservs as best you can.
New
Opening dates for some non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, September 18, 2020. [Note: Despite the standing order about practices upon reopening for Federal Plaza, an opening date has not been announced for NYC non-detained at this time.]
Wrong Link for Standing Order: The Federal Plaza Immigration Court’s website has the wrong link to a 5/1/2020 standing order. The correct link can be found on the general EOIR operational status page.
ERO Check-Ins: NYC check-ins are still telephonic and people have been getting details regarding how to contact the assigned duty officer by emailing nyceroattorneyinquiries@ice.dhs.gov. Don’t forget about ERO when doing telephonic hearings once the courts reopen.
WaPo: “However, averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs,” said Edlow, who runs USCIS on a day-to-day basis as President Trump has not appointed or nominated a director.
AILA: “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges.”
The City: Applicants say that state Department of Motor Vehicles appointments remain scarce, while IDNYC offices shuttered in March and have not yet reopened.
On 8/21/20, Senators Durbin (D-IL), Whitehouse (D-RI), and Hirono (D-HI) led all Senate Judiciary Committee Democrats in sending a request to the GAO to investigate the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic. AILA Doc. No. 20082504
NBC: Earlier this month, ICE removed 30 Vietnamese Americans, including some refugees thought to be protected under a 2008 agreement between the U.S. and Vietnam.
WSJ: They found out only minutes before the ceremony that President Trump would attend, and they didn’t know it would be aired during the Republican convention that night.
LITIGATION/CASELAW/RULES/MEMOS
Immigration Review Podcast: This is a fantastic podcast that summarizes new precedential immigration case law.
USCIS: This travel does not satisfy the “inspected and admitted or paroled” eligibility requirement for obtaining adjustment of status to lawful permanent residence.
NLJ: “These procedures plainly violate Congress’s requirements,” U.S. Senior District Judge Richard Leon said of the training border patrol agents receive to conduct credible fear assessments for asylum-seekers.
The AILA New Jersey Chapter filed a complaint in district court seeking to enjoin the Newark Immigration Court from forcing immigration attorneys to appear for in-person proceedings during the COVID-19 pandemic. (AILA New Jersey Chapter v. EOIR, 7/31/20) AILA Doc. No. 20080301
Granting the petition for review, the court held that the BIA had failed to satisfactorily justify its conclusion that the losses suffered by the victims of the petitioner’s insurance fraud offense had exceeded $10,000. (Rampersaud v. Barr, 8/19/20) AILA Doc. No. 20082833
The court held that the petitioner’s convictions for felony possession of narcotics with intent to sell in violation of Connecticut General Statutes §21a-277(a)(1) qualified as crimes involving moral turpitude (CIMTs). (Mota v. Barr, 8/17/20) AILA Doc. No. 20082830
Reversing DOS’s revocation of the plaintiff’s passport, the court held that the plaintiff did not fraudulently obtain his passport where he used the name and birthdate listed on his certificate of naturalization in his passport application. (Alzokari v. Pompeo, 8/26/20) AILA Doc. No. 20082732
The court concluded that there was not a categorical match between the petitioner’s statute of conviction, involuntary deviate sexual intercourse in Pennsylvania, and the corresponding generic federal crime, sexual abuse of a minor under INA §101(a)(43)(A). (Cabeda v. Att’y Gen., 8/18/20) AILA Doc. No. 20082836
Public Citizen, on behalf of immigrant advocacy groups Ayuda, Northwest Immigrant Rights Project, and CASA de Maryland, filed a lawsuit in the U.S. District Court in D.C. alleging that USCIS’s new fee rule is unlawful. (Northwest Immigrant Rights Project, et al. v. USCIS, et al., 8/21/20) AILA Doc. No. 20082505
On 8/21/20, the U.S. District Court for the Southern District of Ohio (Eastern Division) entered a Consent Order and Final Statement in the class action lawsuit challenging delays in issuance of EADs by USCIS following approval of Form I-765 applications. (Subramanya v. USCIS, 8/21/20) AILA Doc. No. 20080438
On 7/1/20, the Knight Institute filed a complaint on behalf of NAIJ challenging EOIR policies that impose a prior restraint on the speech of immigration judges. On 8/6/20, the court held that it lacked jurisdiction over NAIJ’s claims and accordingly denied the motion for a preliminary injunction. AILA Doc. No. 20070204
The district court vacated the Minimum Service Requirements in DOD’s N-426 policy, which required noncitizens in the military to meet certain durational and type of service requirements before obtaining a Form N-426, Certification of Honorable Service. (Samma, et al., v. DOD, et al., 8/25/20) AILA Doc. No. 20082733
USCIS provided guidance on how it will implement DHS Acting Secretary’s 7/28/20 DACA memo. Among other things, USCIS will reject all initial DACA requests from individuals who have never received DACA and will limit grants of deferred action and employment authorization to no more than one year. AILA Doc. No. 20082431
DOS announced that posts will resume K visa application processing as local conditions and resources allow. Consular officers may revalidate the I-129 petition in four-month increments. For most cases impacted by suspension of visa services, it will not be necessary to file a new I-129 petition. AILA Doc. No. 20083130
DOD OIG found that use of DOD title 10 personnel to support DHS’s southern border security operations was authorized by federal laws and consistent with DOD policies, and that DOD personnel supporting DHS and use of DOD funds for troop support complied with applicable federal laws and DOD policies. AILA Doc. No. 20082435
