⚖️👨🏻‍⚖️👩‍⚖️CHANNELING THE OUTRAGE AT THE FLRA’S OVERT UNION, DUE PROCESS, AND FIRST AMENDMENT BASHING! — Read Jeffrey S. Chase’s Penetratingly Indignant Analysis Of This Sham Decision — Regime’s Larger Plan To Abolish Unions, Politicize, & “Dumb Down” Career Civil Service Should Be D.O.A. In Biden-Harris Administration! 

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/11/6/the-outrageous-decision-to-decertify-the-ijs-union&source=gmail-imap&ust=1605304468000000&usg=AOvVaw15nn5hFuo-vhDvBl2kSJF4

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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The Outrageous Decision to Decertify the IJ’s Union

Our attention is understandably focused elsewhere right now.  However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union.  While this might seem to be a minor issue at the moment, it is not.   At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.

The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago.  It weathered a similar decertification effort in 2000.  Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize.  Under federal labor law, one is classified as a manager if their position “influences policy.”  20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion.  In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy.  The FLRA then noted that “unlike decisions of the Board of Immigration Appeals, the decisions of  Immigration Judges are not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”

In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novo  review, their findings of fact are now reviewed for clear error.  Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy.  So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification.  At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision.  As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified  that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.”  Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.

The Regional Director dismissed the claim based on the above arguments and testimony.  But there was always a sense that the administration had something up its sleeve.  That “something” turned out to be two Trump appointees,  FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott.  They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them.  The two stayed true to form in decertifying the NAIJ.  The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion  in the NAIJ’s case, which concluded with the following language:

This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”

By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.

First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach.  Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards).  As several leading scholars explained in an article in Slate:  “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context  of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”

But of great importance is a point I raised last year in an article I wrote for Law360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:

while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ.  In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views.  Such actions would constitute a troubling attempt by the executive branch to influence case outcomes.  Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.

Just prior to the FLRA’s decision, an executive order  creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views).  By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order.  To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.

While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant.  First, the earlier decertification effort in 2000 occurred under a Democratic administration.  Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration.  Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.

The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term.  It is therefore hoped that readers will amplify the news of the decision and all it means.  It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision.  And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct

There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration.  FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent.  But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.

Copyright 2020 Jeffrey S. Chase.  All rights reserved. reprinted with permission.

***********************

Thanks for speaking out so forcefully and articulately, my friend,

I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.

Due Process Forever!

PWS

11-09-20

🐕‍🦺LUNA, FRIENDS, LOOK FORWARD TO RETURN OF FIRST DOGS, BETTER BREED OF HUMANS TO WHITE HOUSE!

Luna
Luna Schmidt looks forward to Major, Champ, better humans in White House
Hazel Cillis
Hazel Cillis
Pop Culture Reporter
Jezebel
Photo: Twitter

https://jezebel.com/i-want-as-many-pets-as-possible-in-the-white-house-agai-1845596935

Hazel Cillis @ Jezebel:

What does a Joe Biden Presidency mean for America? An era without a fascist in office, for one thing. But it also means a very important figure will once again enter the White House, whose influence across the country can’t be understated: the Presidential pet.

Joe Biden has two dogs, a rescue named Major and an older German Shepherd named Champ who “loves to talk.” For the past four years not only has Donald Trump not welcomed any good boys into the White House, he has openly voiced his disdain for dogs and pets, using the word “dog” as an insult any chance he gets. Mike Pence might have Marlon Bundo and a few other animals, but Trump thought Pence bringing pets to the White House was, according to a 2017 report from The Hill, “low-class.” And anyway, all those Pence pets are complicit in this administration’s horrific policies, misogyny, and xenophobia, make no mistake.

But Presidential pets are a necessity. From Barack Obama’s beloved Bo and Sunny to FDR’s Fala (a beloved Scottish Terrier who actually starred in a small documentary film about his life as a Presidential pup in 1943), pets in the White House just make sense. I think beyond the usual dogs and cats, White House families should fill that sucker up with as many animals as possible. Don’t forget that President Calvin Coolidge was practically a pet hoarder, ushering in a raccoon, a pygmy hippo, and two lions named “Tax Reduction” and “Budget Bureau.”

Even if we don’t get a hippo once again, I for one am excited to have some dogs back in the White House, gnawing on furniture Abraham Lincoln once sat on, and bringing honor once again to this great nation.

*********************

Major & Champ will bring some much needed class and humanity to America’s first residence, which has conspicuously lacked both since January 20, 2017.

As Luna says, “Woof, woof, woof!”

PWS

11-07-20

😢VERY SAD NEWS: JEOPARDY’S ALEX TREBEK SUCCUMBS TO CANCER AT 80!

Alex Trebek
Alex Trebek
PHOTO CREDIT: ANDERS KRUSBERG / PEABODY AWARDS
71st Annual Peabody Awards Luncheon Waldorf=Astoria Hotel
May 21, 2012

https://www.nbcwashington.com/entertainment/entertainment-news/jeopardy-host-alex-trebek-dies-at-80/2467238/

From NBC News:

Alex Trebek, who presided over the beloved quiz show “Jeopardy!” for more than 30 years with dapper charm and a touch of school-master strictness, died Sunday. He was 80.

Trebek, who announced in 2019 that he had advanced pancreatic cancer, died at his California home, surrounded by family and friends, “Jeopardy!” studio Sony said.

The Canadian-born host, who made a point of informing fans about his health directly, spoke in a calm, even tone as he revealed his illness and hope for a cure in a video posted March 6, 2019.

In the video, Trebek said he was joining the 50,000 other Americans who receive such a diagnosis each year and that he recognized that the prognosis was not encouraging.

Pancreatic cancer is currently the third leading cause of cancer-related death in the U.S., with an overall five-year survival rate of just 10 percent.

Supreme Court Justice Ruth Bader Ginsburg and Rep. John Lewis also succumbed to the disease this past year.

But Trebek said he intended to fight it and keep working, even joking that he needed to beat the disease because his “Jeopardy!” contract ran for three more years. Less than a week later, he opened the show with a message acknowledging the outpouring of kind words and prayers he’d received.

“Thanks to the — believe it or not — hundreds of thousands of people who have sent in tweets, texts, emails, cards and letters wishing me well,” Trebek said. “I’m a lucky guy.”

“Jeopardy!” bills itself as “America’s favorite quiz show” and captivated the public with a unique format in which contestants were told the answers and had to provide the questions on a variety of subjects, including movies, politics, history and popular culture.

They would answer by saying “What is … ?” or “Who is …. ?”

Trebek, who became its host in 1984, was a master of the format, engaging in friendly banter with contestants, appearing genuinely pleased when they answered correctly and, at the same time, moving the game along in a brisk no-nonsense fashion whenever people struggled for answers.

He never pretended to know the answers himself if he really didn’t, deferring to the show’s experts to decide whether a somewhat vague answer had come close enough to be counted as correct.

“I try not to take myself too seriously,” he told an interviewer in 2004. “I don’t want to come off as a pompous ass and indicate that I know everything when I don’t.”

The show was the brainstorm of Juann Griffin, wife of the late talk show host-entrepreneur Merv Griffin, who said she suggested to him one day that he create a game show where people were given the answers.

“Jeopardy!” debuted on NBC in 1964 with Art Fleming as emcee and was an immediate hit. It lasted until 1975, then was revived in syndication with Trebek.

Long identified by a full head of hair and trim mustache (though in 2001 he startled viewers by shaving his mustache, “completely on a whim”), Trebek was more than qualified for the job, having started his game show career on “Reach for the Top” in his native country.

Moving to the U.S. in 1973, he appeared on “The Wizard of Odds,” “High Rollers,” “The $128,000 Question” and “Double Dare.” Even during his run on “Jeopardy!”, Trebek worked on other shows. In the early 1990s, he was the host of three — “Jeopardy!”, “To Tell the Truth” and “Classic Concentration.”

“Jeopardy!” made him famous. He won five Emmys as its host, and received stars on both the Hollywood and Canadian walks of fame. In 2012, the show won a prestigious Peabody Award.

He taped his daily “Jeopardy!” shows at a frenetic pace, recording as many as 10 episodes (two weeks’ worth) in just two days. After what was described as a mild heart attack in 2007, he was back at work in just a month.

He posted a video in January 2018 announcing he’d undergone surgery for blood clots on the brain that followed a fall he’d taken. The show was on hiatus during his recovery.

It had yet to bring in a substitute host for Trebek — save once, when he and “Wheel of Fortune” host Pat Sajak swapped their TV jobs as an April’s Fool prank.

In 2012, Trebek acknowledged that he was considering retirement, but had been urged by friends to stay on so he could reach 30 years on the show. He still loved the job, he declared: “What’s not to love? You have the security of a familiar environment, a familiar format, but you have the excitement of new clues and new contestants on every program. You can’t beat that!”

Although many viewers considered him one of the key reasons for the show’s success, Trebek himself insisted he was only there to keep things moving.

“I’m introduced as the host of ‘Jeopardy!,’ not the star,” he said in a 2012 interview. “My job is to provide the atmosphere and assistance to the contestants to get them to perform at their very best,” he explained. “And if I’m successful doing that, I will be perceived as a nice guy and the audience will think of me as being a bit of a star.”

Trebek is survived by his wife Jean and his two adult children, Emily and Matthew.

*****************

Alex has long been a part of our family. Most evenings at our house are NBC Nightly News followed by Jeopardy!

A number of years ago, we were lucky enough to see Alex in person during a live recording of “Celebrity Jeopardy” at DAR Constitution Hall. He spent lots of time chatting with the audience and answering questions during the “off camera” breaks.

In tribute to Alex, the “Zoom Edition of Immigration Law & Policy” at Georgetown Law this summer was “Immigration Jeopardy” — 100 “answers” in the familiar “you supply the questions” Jeopardy format!

Alex has actually been “grooming” his successor Jeopardy G.O.A.T. Ken Jennings over the past months. So the show will carry on the “Alex tradition.” Nevertheless, as Ken and all Jeopardy fans know, there will never be another Alex Trebek!

 

Thanks for all the great entertainment and knowledge over the years! R.I.P. Alex. 

PWS

11-08-20

🇺🇸IT’S A BEAUTIFUL DAY IN THE NEIGHBORHOOD — Joy, Relief, Optimism Pour Into The Streets!🗽⚖️

 

About 11:30 AM yesterday, I was on our screen porch working on Courtside. I heard the first joyful shouts. Simultaneously, my iPad screen told me that Pennsylvania had been called for Biden. I bellowed out a loud, YES! Then, I put up our American flag. 

At 5 PM, by arrangement on the neighborhood e-Mail, folks started streaming out their doors, standing on the curb, glasses and champaign bottles in hand, for a toast to Joe Biden, Kamala Harris, the return of democracy, rationality, and human decency. Then we mixed and mingled, of course in a socially distant way. Dogs and kids were welcome. “Finally, able to breathe again” was a common refrain, as was “national nightmare coming to an end.”

Our neighbors are from all backgrounds and many different origins: doctors, lawyers, teachers, techies, designers, consultants, Federal bureaucrats, immigrants, parents, grandparents, singles. One mother had been naturalized just so she could vote in this election. All of us shared relief and joy at the return of sane, humane sound government and informed, reasonable dialogue on how to resolve our pressing national problems.

Later we adjourned to a back yard fire pit and celebrated and chatted some more, before drifting away to our respective homes. Cathy and I left the empty bottles and plastic cups on our lawn, intending to clean up in the daylight. But, by the time we arose, one of the neighbors had already done the job for us.

The aura of optimism still hung in the air today. At least for now, the world looks a lot brighter than it did four years ago.

COURTSIDE ELECTION SPECIAL🇺🇸🗽⚖️👍😎 — HARRIS, BIDEN, DEMOCRACY BIG WINNERS — THIS TIME AROUND, THE MAJORITY RULES, AS DEM DUO SWEEPS TO VICTORY IN BOTH POPULAR VOTE AND ELECTORAL COLLEGE!

President Elect Joe Biden
Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann).
Vice President Elect Kamala Harris
Vice President Elect Kamala Harris
Official Senate Photo
Public Realm

🇺🇸🗽⚖️👍😎COURTSIDE ELECTION SPECIAL: HARRIS, BIDEN, DEMOCRACY BIG WINNERS — THIS TIME AROUND, THE MAJORITY RULES, AS DEM DUO SWEEPS TO VICTORY IN BOTH POPULAR VOTE AND ELECTORAL COLLEGE!

By Paul Wickham Schmidt

Courtside Exclusive 

Nov. 7, 2020. Vice President and soon to be President Elect Joe Biden’s 33-year long quest for the U.S. Presidency will come to fruition on January 20, 2021. His running mate and soon to be Vice President Elect Senator Kamala Harris will become the first woman and the first African American to hold the number two job. 

Although the results of the Presidential contest were long in coming, they basically fulfilled pre-election predictions. Harris-Biden are on pace to win a clear majority of the popular vote by over four million votes, in the process compiling the highest vote total in U.S. election history. 

Unlike 2016, this time the popular vote translates into an insurmountable 59 vote margin and a majority in the electoral college. Fittingly, Biden’s apparent victory in Pennsylvania put him over the top. But, with the Biden Harris team in the lead in the “undecided” states of Nevada, Arizona, and Georgia that electoral margin seems likely to widen when the final vote is tabulated. Only the remaining states of Alaska and North Carolina appear to be falling into the Trump column, which would still leave the soon-to-be former President woefully short of an electoral majority. 

Indeed, he is now on pace to lose by the same electoral majority than he compiled in defeating Clinton notwithstanding losing the popular vote to her by millions. At that time, Trump characterized his electoral college victory as a “landslide,” notwithstanding his very clear defeat in the popular vote. While compiling a head-scratchingly large cult-like following of tens of millions that propelled him to victory on 2016 and helped prop up his bizarrely incompetent presidency, Trump was never popular with the majority of Americans, except in his own muddled mind. 

In winning a convincing victory, if not the overwhelming one that Democrats hoped for and that many pundits and pollsters predicted, Biden/Harris appear to have held every state won by Hillary Clinton in 2016 while “flipping” Biden’s birth state of Pennsylvania, Michigan, and Wisconsin by narrow margins. If their narrow current leads in Arizona and Georgia hold, they will add “flips” of these traditional GOP strongholds to their list of election achievements.

Biden becomes only the third candidate since Franklin D. Roosevelt in 1932 to unseat a sitting elected President, the others being President Ronald Reagan and President Bill Clinton. (President Jimmy Carter unseated President Gerald Ford in 1980, but Ford was never elected to either the Vice Presidency or the Presidency.) Biden also becomes the fourth Vice President in the past 70 years  to later win a Presidential election.

Harris is a graduate of Howard University and Cal Hastings Law. Her win is a huge milestone for “historically black colleges” and their many talented graduates throughout our nation.

Biden is a graduate of the University of Delaware and Syracuse Law. The Harris-Biden tandem may be the first time that “non—Ivy” lawyers have held both of our top elected positions. That’s a tribute to the many fine law schools outside the Ivy League that produce the vast majority of the nation’s legal talent and fuel most of the “practical lawyering and usable scholarship” that keeps our legal system afloat.

Hopefully, our new leaders will keep that in mind when filling key positions in their upcoming Administration and particularly in making Federal Judicial appointments at all levels. That’s especially important considering the disturbing failure of many graduates of so-called “elite” law schools serving us as public officials and judges to effectively and courageously stand up to the all out assault on the rule of law, ethics, constitutionally required due process and equal protection, and human decency by the Trump regime.

Any surviving functionality and integrity in our courts and public institutions is largely the result of courageous and under-appreciated attorneys, many working pro bono, who have fought at the “retail level” of our justice system to preserve those human rights and fundamental values upon which our legal system rests. All too often, they suffered bullying and abuse from the cowardly Trump regime for their efforts, while life-tenured Federal Judges failed in their duty to intercede to protect officers of their courts and their clients whose rights were being trampled by a group of out of control White Nationalist bigots.

Thus, the Biden-Harris team will enter what is probably the most consequential Presidency in U.S. history at one of the most most difficult and contentious times. With an out of control pandemic, high unemployment, rapidly deteriorating environment, festering racism, looming healthcare, opioid, and educational crises, cratering international prestige, trade wars, a crippled and demoralized career civil service, a failing judicial system, dysfunctional immigration and refugee systems, lack of trust in Government, disquiet in the intelligence and military communities, lack of competent Executive leadership over the past four years, and about 70.3 million Americans essentially living “in a parallel universe” but still our fellow citizens and essential to our society, saving American democracy would be a daunting task for any leaders. Some would say “mission impossible.” But, I can’t think of anyone better suited than the Biden-Harris team to undertake that mission.

In a democracy, successful outcomes are never guaranteed. But, if our democracy turns out to be beyond reclamation, it almost certainly will be because “We the People” fail to give our new leaders the support they need and deserve.

As for Trump, ever the total boor and purveyor of hate, division, and lies, he sent a missive from his golf course saying that he wouldn’t concede and pledged to continue to pelt our already crumbling court system with yet more frivolous litigation. Thankfully, most news commentators chose to read only a few lines of his incoherent rant before returning to the real news surrounding Biden and Harris. How quickly even the most bombastic ones with the biggest egos become “yesterday’s news.”

So, unsurprisingly, Trump, who undoubtedly will go down as the worst, most corrupt, and least competent President in U.S. history, will exit with the same disturbing lack of class, honesty, and fundamental human decency that has characterized his four-year “nightmare reign.” Meanwhile, as he relaxes, pouts, and sulks on the links, the pandemic that he failed to take reasonable steps to address or control, and consistently and dishonestly tried to downplay, continues to rage unabated and ravish our nation.  

One of the hardest hit areas: The Upper Midwest, particularly my native state of Wisconsin. That might explain why today Trump is playing golf and Joe Biden and Kamala Harris are sharing center stage! For a change, its nice to have folks who represent some of the most admirable human qualities that America has produced getting their time in the spotlight.

The good news: After 12:01 PM on January 20, 2021, the majority of us won’t care about the antisocial antics of the biggest loser of this election!

       

AFTER 16 YEARS OF LITIGATION, BARR REVERSES BIA, STICKS IT TO FORMER CHILD SOLDIER SUBJECTED TO DURESS! — Matter of NEGUSIE, 28 I&N Dec. 120 (A.G. 2020)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/a-g-barr-on-asylum-persecution-duress-coercion-matter-of-negusie

 

Dan Kowalski reports from LexisNexis Immigration Community:

A.G. Barr on Asylum, Persecution, Duress, Coercion: Matter of Negusie

Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.

(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.

“I vacate the Board’s June 28, 2018 decision. The Board’s decision did not adopt the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as of longstanding Board precedent and policies of the Department of Justice. In addition, the decision did not appropriately weigh relevant diplomatic considerations, and it introduced collateral consequences that would be detrimental to the administration of immigration law. The Board’s decision also placed an initial burden on the Department of Homeland Security (“DHS”) to show evidence indicating the applicant assisted or otherwise participated in persecution, which is contrary to the plain language of the governing regulations. Because the Board incorrectly recognized a duress exception to the persecutor bar, and incorrectly placed an initial burden on DHS to show evidence the persecutor bar applies, I overrule those determinations and any other Board precedent to the extent it is inconsistent with this opinion. I vacate the Board’s decision and remand this matter to the Board with instructions to place the case on hold pursuant to 8 C.F.R. § 1003.1(d)(6)(ii)(B) pending the completion or updating of all identity, law enforcement, or security investigations or examinations. Once those investigations or examinations are complete, the Board should enter an appropriate order.”

****************

Fairly predictable given the regime and a system that lets a political official interfere in the quasi-judicial decision-making process in violation of due process and fundamental fairness! Remarkably, Barr injects “diplomatic considerations” into what is supposed to be due process, impartial adjudication system! He also shifts the burden of proof to the respondent, rather than the DHS where the BIA had placed it.

This case was remanded by the U.S. Supreme Court after the BIA got it wrong more than a decade ago. If it goes back to the Court again, the former “child soldier” in 1995, when the events occurred, could well be a “senior citizen” by the time the system decides his fate. 

In the course of remanding the case, the Supremes noted that different interpretations of the statute by the BIA with respect to the duress defense were available. As has become the norm these days, faced with various reasonable possibilities, the Attorney General chose the one “least favorable to the foreign national.”

This case also points out the absurdity of the “Chevron doctrine” in immigration. In 2009 when this case was before the Supremes, there was a clearly developed record. Additionally, it was clear that a number of the then Justices had well-defined, if conflicting, views on the “duress defense” in this context. Yet the Court remanded for the BIA to exercise “Chevron authority” to make another interpretation. That process has taken 11 years!

Whatever happened to the plain old fashioned idea that Justices of our Supremes are paid to decide what the law is so that it can be carried out by the Executive?As I have stated on many occasions, “Chevron deference” is nothing more than “judicial task avoidance” at the highest levels!

The “good news” from the respondent’s standpoint is that the BIA’s prior grant of “deferral of removal” to Eritrea stands. Therefore, it seems likely that he will be able to remain in the U.S. in “limbo” status for the rest of his life, no matter how the asylum litigation eventually plays out.

It also illustrates the extent to which the Government will go to deprive an individual of a chance to regularize status in the United States. This protracted litigation isn’t about “removing a bad guy” from the U.S. Rather it’s about insuring that a foreign national who has been residing here with no apparent incidents for the past 16 years, and is likely to be among us for the rest of his life, will continue to “twist in the wind” without permanent legal status or any chance of becoming a full member of our society.

A regime that mindlessly rushes cases to deportation without fair deliberation in many cases has no problems making the system move at a glacial pace, wasting time, and squandering legal resources when it wants to screw the asylum seeker.

PWS

11-06-20

“PURE SOPHISTRY” 🤮— POLITICIZED FLRA MAJORITY REVERSES REGIONAL DIRECTOR, BUSTS IMMIGRATION JUDGES’ UNION!— NAIJ President Judge Ashley Tabaddor Pledges To Continue Fight For Due Process Rights Of Migrants & 1st Amendment Rights Of Judges!

Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Here’s a message Judge Tabaddor sent to all Immigration Judges:

Subject: Update on Agency Action to Decertify NAIJ

 

THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

 

November 3, 2020

 

Dear Colleagues,

 

Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure “sophistry.”

 

This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions to the most recent executive order designed to transform the federal workforce into an ”at-will” and deeply politicized body. And in the context of immigration judges, this is in line with our experience of undue interference and influence in our independent decision making authority.

 

We have lost this battle, but we will win the war. The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.

 

Your support of NAIJ is now more important than ever. NAIJ needs you. If you have not previously joined NAIJ, join now by contacting us directly. In turn, NAIJ will continue to support immigration judges both individually with management and also as a group through public outreach, media contacts, and work on the Hill. We will need to work together to make sure that misguided policies like quotas and deadlines and micromanagement of IJs are not utilized to target us for discipline or removal from office. Even absent the protection of a collective bargaining agreement, we continue to have rights as federal government employees, including before the Merit System Protection Board. And if nothing else, this highly politicized decision is another compelling exhibit in our case for the creation of an independent Article 1 immigration court.

 

As always, feel free to reach out to myself or any of the NAIJ board members with any questions or concerns. My personal email address is ashleytabaddor@gmail.com and my cell is (310) 709-3580.

 

Ashley Tabaddor

President, NAIJ

 

***********************

Unquestionably, the move by the Attorney General to “decertify” the NAIJ (essentially eradicate it) was intended to “punish and silence” Judge Tabaddor and other NAIJ officers who have spoken out about serious due process abuses and chronic mismanagement at EOIR and the DOJ. Indeed, since all other sitting IJs are “muzzled” by the DOJ, and “EOIR Star Chamber” operations have become increasingly more secretive, less transparent, and wildly inconsistent from court to court under the Trump regime, the NAIJ is one of the few sources of accurate information for Congress and the public about the ever-deteriorating conditions in Immigration Court! 

Don’t expect this battle for the “heart and soul” of Federal Civil Service and American democracy to go away any time soon!

Due Process Forever!

PWS

11-05-20

🏈R.I.P. HERB ADDERLEY 1939 – 2020 — Packer Hall Of Fame Cornerback Played On Six NFL Championship Teams!

Herb Adderley
Herb Adderley
Green Bay Packer Hall of Fame Cornerback
Running Against The Eagles
Creative Commons License
Green Bay Packers
Green Bay Packers

https://www.washingtonpost.com/local/obituaries/herb-adderley-hall-of-fame-cornerback-with-lombardis-packers-dies-at-81/2020/10/31/dd78834e-1af3-11eb-82db-60b15c874105_story.html

By Associated Press

October 31 at 11:29 AM ET

Herb Adderley, a Hall of Fame cornerback who was a part of a record six championship teams with the Green Packers and Dallas Cowboys, has died. He was 81.

His death was confirmed by the Packers, but details on the date, place and cause of death were not disclosed.

Mr. Adderley played in four of the first six Super Bowls and won five NFL championships with Green Bay and one with Dallas during his 12-year career. But he was always a Packer at heart.

“I’m the only man with a Dallas Cowboys Super Bowl ring who doesn’t wear it. I’m a Green Bay Packer,” he said in the book “Distant Replay,” a memoir by former Packers teammate Jerry Kramer.

Along with former Packer teammates Fuzzy Thurston and Forrest Gregg, Mr. Adderley was one of four players in pro football history to play on six championship teams. Former New England Patriots quarterback Tom Brady is the other. Mr. Adderley was enshrined in the Pro Football Hall of Fame in 1980.

Bart Starr, the Hall of Fame quarterback and a former Packers teammate, once called Mr. Adderley the “greatest cornerback to ever play the game.”

. . . .

**********************

Read the full obit at the link.

What a graceful, thrilling, clutch player! And, he could return kicks!

Like many of the Packers from the “Lombardi Era” he went on to do other worthwhile things after retirement.

PWS

11-03-20

🇺🇸THE GIBSON REPORT — 11-02-20 — Prepared By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Trump/Miller Bogus Public Charge Rule Enjoined Again; CBP Turns Back More Than 13,000 Unaccompanied Kids Using COVID-19 As Cover For Child Abuse; John Oliver With The Incredibly Ugly 🤮 Truth About The Trump-Miller Racist Assault On Asylum & Humanity ☠️⚰️— Other News From America Teetering On The Brink After 4-Years Of Trump Regime Misrule, Cruelty, Corruption, & Undermining Of Democracy!🏴‍☠️

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.

 

EOIR Status Overview & EOIR Court Status Map/List: EOIR has not yet provided an updated general postponement date for non-detained cases at courts that remain closed. The website still reflects last week’s Nov. 13, 2020 date, but EOIR may still plan to update it later than usual.

 

TOP NEWS

 

Trump’s Public Charge Rule to Deny Immigrants U.S. Entry Vacated

Bloomberg: The rule violates the Administrative Procedure Act and the statute requires vacatur, the opinion by Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois said.

 

Asylum Denial Rates Continue to Climb

TRAC: Despite the partial court shutdown during the COVID-19 pandemic, this year immigration jud­ges managed to decide the second highest number of asylum decisions in the last two de­cades. The rate of denial continued to climb to a record high of 71.6 percent, up from 54.6 percent during the last year of the Obama Administration in FY 2016.

 

Trump aide Stephen Miller preparing second-term immigration blitz

Guardian: The hardline adviser is said to be ready to unleash executive orders deemed too extreme for a president seeking re-election…Those items are expected to include attempting to eliminate birthright citizenship, making the US citizenship test more difficult to pass, ending the program which protects people from deportation when there is a crisis is their country (Temporary Protected Status) and slashing refugee admissions even further, to zero. See also Election day preview: Trump v. Biden on immigration.

 

Trump Administration to Put 180-Day Ban on Many Asylum Requests

Bloomberg: The Trump administration is expected to announce a 180-day ban on a range of asylum requests citing the threat posed by the coronavirus, according to two people familiar with the matter, in its latest effort to restrict immigration ahead of the Nov. 3 election.

 

Trump declares 1 November to be ‘national day of remembrance for those killed by illegal aliens’

Independent: With three days left until the election, the presidential proclamation was designed to hammer home his message of law and order, and position himself as the candidate best placed to protect the United States. See also Undocumented immigrants may actually make American communities safer – not more dangerous – new study finds.

 

Border Officials Turned Away Unaccompanied Immigrant Children More Than 13,000 Times Under Trump’s Pandemic Policy

BuzzFeed: The Department of Homeland Security has expelled unaccompanied immigrant children from the US border more than 13,000 times since March, when the Trump administration gave the agency unprecedented powers to close off access at the border during the coronavirus pandemic, according to an internal document obtained by BuzzFeed News.

 

Across The U.S., Trump Used ICE To Crack Down On Immigration Activists

Intercept: Immigration authorities under President Donald Trump’s administration have pursued a widespread campaign of official retaliation against immigrant rights advocates around the country, according to a newly released database and searchable map assembled by the Immigrant Rights Clinic at New York University Law School. See also Black Immigrants in the United States Have Been Targeted by Trump.

 

Deported Marine veteran wins federal lawsuit, earns US citizenship

Military Times: A Belize-born Marine Corps veteran won his battle for U.S. citizenship on Tuesday, completing a naturalization interview that had been on hold for more than a year, according to a release from his attorneys.

 

The Loneliness of the Immigration Lawyer

Prospect: Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys.

 

From the travel ban to the border wall, restrictive immigration policies thrive on the shadow docket

SCOTUSblog: In the past three years, much of the shadow docket has been populated by emergency requests from the Trump administration asking the Supreme Court to intervene before the lower courts have reached a final outcome or to override the actions of lower courts without a meaningful review process — or both.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Judge Declares Unlawful and Vacates Government’s Asylum Seeker “Credible Fear” Standards

IRAP: According to Saturday’s order, the “credible fear” lesson plans are vacated in their entirety  and the government must bring back at government expense the two named plaintiffs who had been deported before the case was filed so that they can be rescreened under lawful standards.

 

District Court Vacates DHS Public Charge Rule Nationwide

A district court vacated the DHS final rule on public charge as well as DHS’s request to stay the judgment. This ruling is to take effect immediately thus DHS may not apply the public charge after the date of the order. (Cook County, et al. v. Wolf, et al., 11/2/20) AILA Doc. No. 20110231

 

Notice of Proposed Settlement and Hearing in Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications

The District Court for the Western District of Washington has scheduled a hearing for 11/4/20 for consideration of a proposed settlement in Mendez Rojas v. Wolf, a suit involving individuals who have filed, or will be filing, an asylum application more than one year after arriving in the U.S. AILA Doc. No. 20082430

 

Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases

AILA joined the American Immigration Council and the National Immigrant Justice Center in litigation against EOIR and GSA. The lawsuit requests information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan. AILA Doc. No. 20103038

 

CA3 Says Petitioner’s New Jersey Conviction for Criminal Sexual Contact Is an Aggravated Felony

Denying the petition for review, the court held that the petitioner’s conviction in New Jersey for criminal sexual contact constituted an aggravated felony under INA §237(a)(2)(A)(iii) that rendered him removable. (Grijalva Martinez v. Att’y Gen., 10/21/20) AILA Doc. No. 20103036

 

CA3 Finds Petitioner’s Conviction Under New Jersey’s Terroristic-Threats Statute Was Not a CIMT

Granting the petition for review, the court held that, under the modified categorical approach, the petitioner’s conviction under New Jersey’s terroristic-threats statute was not a crime involving moral turpitude (CIMT). (Larios v. Att’y Gen., 10/14/20) AILA Doc. No. 20102731

 

CA4 Grants Asylum to Salvadoran Petitioner Targeted by Gang Because Her Parents Failed to Comply with Extortive Threats

The court held that the IJ and the BIA had failed to adequately address unrebutted evidence in the record that compelled the conclusion that the petitioner’s membership in her family was at least one central reason for her persecution. (Hernandez-Cartagena v. Barr, 10/14/20) AILA Doc. No. 20102733

 

CA7 Says BIA Erred in Finding IJ Need Not Warn Petitioner of Possible Eligibility for Asylum and Related Relief

Where the petitioner had told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, the court held that the IJ should have advised him that he might be eligible for asylum or withholding of removal. (Jimenez-Aguilar v. Barr, 10/6/20) AILA Doc. No. 20102736

 

CA8 Holds That a TPS Recipient Is Eligible to Adjust to LPR Status

The court held that a noncitizen who entered without inspection or admission but later received Temporary Protected Status (TPS) is deemed “inspected and admitted” under INA §245A and thus may adjust to lawful permanent resident (LPR) status. (Velasquez, et al. v. Barr, et al., 10/27/20) AILA Doc. No. 20103037

 

CA9 Upholds Adverse Credibility Determination as to Petitioner from the DRC Based on Inconsistencies in the Record

Where there were inconsistencies, an omission, and implausibilities in the record, the court held that substantial evidence supported the denial of asylum to the petitioner, a native of the Democratic Republic of Congo (DRC), on adverse credibility grounds. (Mukulumbutu v. Barr, 10/13/20) AILA Doc. No. 20102741

 

CA9 Says Oregon’s Former Marijuana Delivery Statute Is Not an “Illicit Trafficking of a Controlled Substance” Offense

The court held that Oregon’s former marijuana delivery statute, Or. Rev. Stat. §475.860, was not an “illicit trafficking of a controlled substance” offense, and thus found that the petitioner’s conviction did not make him removable as an aggravated felon. (Cortes-Maldonado v. Barr, 10/15/20) AILA Doc. No. 20102832

 

CA11 Says There Is No Duress or De Minimis Exception to the Material Support Bar

The court held that its precedent established that no duress exception exists to the material support bar, and that the statutory text showed that any provision of funds to a terrorist organization categorically qualifies as material support. (Hincapie-Zapata v. Att’y Gen., 10/13/20) AILA Doc. No. 20102834

 

BIA Finds EWIs Cannot Be Charged with Inadmissibility Under INA §212(a)(7)

Unpublished BIA decision holds that INA §212(a)(7)(A)(i) is only applicable to respondents who seek admission at a port of entry, as distinct from those who enter without inspection. Special thanks to IRAC. (Matter of Ortiz Orellana, 5/26/20) AILA Doc. No. 20102701

 

BIA Finds Evidence of Prior Fraudulent Marriage Precludes Approval of Subsequent Marriage-Based Visa Petition

The BIA ruled that when there is probative evidence that a beneficiary’s prior marriage was fraudulent and entered into to evade immigration laws, a subsequent visa petition filed on beneficiary’s behalf is properly denied under §204(c) of the INA. Matter of Pak, 28 I&N Dec. 113 (BIA 2020) AILA Doc. No. 20103034

 

BIA Reopens Sua Sponte Because Florida Theft Statute Is No Longer a CIMT

Unpublished BIA decision reopens proceedings sua sponte upon finding theft under Fla. Stat. 812.014 is no longer a CIMT under Descamps v. U.S., 133 S. Ct. 2276 (2013), and Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016). Special thanks to IRAC. (Matter of Persad, 5/14/20) AILA Doc. No. 20102603

 

BIA Grants New Bond Hearing Because IJ Conducted All the Questioning

Unpublished BIA decision remands for new bond hearing because the IJ conducted all the questioning and did not give either attorney a chance to ask questions. Special thanks to IRAC. (Matter of L-R-B-, 5/12/20) AILA Doc. No. 20102602

 

BIA Finds Respondent Who Arrived Late to Hearing Did Not Fail to Appear

Unpublished BIA decision finds respondent did not fail to appear for hearing where he arrived 25 minutes late due to unexpectedly heavy traffic and was in communication with his attorney who was in the courtroom. Special thanks to IRAC. (Matter of Hernandez-Yanez, 5/8/20) AILA Doc. No. 20102601

 

BIA Holds Federal Anti-Kickback Statute Not a CIMT

Unpublished BIA decision holds that receipt of remuneration under 42 U.S.C. 1320a-7b(b)(1) is not a CIMT because it does not require any loss or harm to a person. Special thanks to IRAC. (Matter of Tejeda, 5/28/20) AILA Doc. No. 20103001

 

BIA Rescinds In Absentia Order Where Hearing Was Not Reflected on EOIR Hotline

Unpublished BIA decision rescinds in absentia order where EOIR hotline did not reflect the existence of a hearing and the DHS attorney confirmed that the respondent was not on DHS’s docket on the date she was ordered removed. Special thanks to IRAC. (Matter of Opondo, 5/21/20) AILA Doc. No. 20102700

 

BIA Finds Ninth Circuit TPS Decision Constitutes Fundamental Change in Law

Unpublished BIA decision holds that Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), represents fundamental change of law justifying sua sponte reopening for TPS holders to apply for adjustment of status. Special thanks to IRAC. (Matter of Larios Andrade, 5/27/20) AILA Doc. No. 20103000

 

DHS OIG Says ICE Needs to Address Concerns About Detainee Care at the Howard County Detention Center

DHS OIG released a report saying that, during an inspection of the Howard County Detention Center, it identified violations of ICE detention standards that threatened the health, safety, and rights of detainees, including excessive strip searches and failure to provide two hot meals a day. AILA Doc. No. 20103031

 

USCIS Adjustment of Status Filing Dates for November 2020

USCIS determined that for November 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart. AILA Doc. No. 20102991

 

USCIS Notice of Proposed Rulemaking Creating Wage-Based Selection Process for H-1Bs

USCIS notice of proposed rulemaking (NPRM) which would change the H-1B registration selection process from a random process to a wage-based selection process. Comments on the proposed rule are due 12/2/20, with comments on associated form revisions due 1/4/21. (85 FR 69236, 11/2/20) AILA Doc. No. 20102930

 

USCIS Adjustment of Status Filing Dates for November 2020

USCIS determined that for November 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart. AILA Doc. No. 20102991

 

USCIS Notice of Extension of the Designation of South Sudan for TPS

USCIS notice extending the designation of South Sudan for Temporary Protected Status (TPS) for 18 months, from 11/3/20 through 5/2/22. The re-registration period runs from 11/2/20 through 1/4/21. (85 FR 69344, 11/2/20) AILA Doc. No. 20110230

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, November 2, 2020

Sunday, November 1, 2020

Saturday, October 31, 2020

Friday, October 30, 2020

Thursday, October 29, 2020

Wednesday, October 28, 2020

Tuesday, October 27, 2020

Monday, October 26, 2020

 

 

 

***********************

The last item on Elizabeth’s list from John Oliver is a great (if enraging) explanation of how Trump & Miller, aided by complicit Supremes and a corrupt do-nothing GOP Senate, have rewritten American asylum laws by Executive fiat to enact a deadly, immoral, illegal, racist, White Nationalist, restrictionist agenda that tortures, maims, kills, and otherwise punishes refugees, including many women and children, without any due process and in violation of our international obligations (not to mention human decency). The stain on America will long outlast the Trump regime. Much of the harm is irreversible.

How do you know when you have entered the “Twilight Zone of American Democracy?” When the biggest threat to free and fair democratic elections in the United States of America is the President! Today’s national news reports were largely dedicated to state election officials assuring Americans that the President was lying, and that their votes cast in accordance with the rules would be counted, no matter how long it takes. 

Vote ‘em out, vote ‘em out! For the good of America and the world, get out the vote and vote ‘em out!

Every vote for a Democratic candidate is a vote to save our nation, our world, our souls, and the lives of our fellow humans of all races and creeds, and to finally achieve Constitutionally required Equal Justice Under Law!🇺🇸

Due Process Forever!⚖️🗽👍🏼🇺🇸

PWS

11-03-20

🇺🇸ONE FINAL PUSH TO SAVE OUR DEMOCRACY ⚖️ — GET OUT EVERY SINGLE VOTE FOR JOE, KAMALA, AND ALL DEMS!

🇺🇸ONE FINAL PUSH TO SAVE OUR DEMOCRACY ⚖️ — GET OUT EVERY SINGLE VOTE FOR JOE, KAMALA, AND ALL DEMS!

By Paul Wickham Schmidt

Courtside Exclusive

Nov. 2, 2020. As all of us know who have spent our lives working in the fields of immigration and asylum law, there is perhaps nothing so precious to individuals, and perhaps all too rare worldwide, as the right to vote in free and fair elections. Most of us who are not members of minority groups have largely taken that right for granted. But, today in America, the right of universal suffrage has been put in jeopardy by none other than President and his political party.

Behind in the polls and the early voting, and with no ideas for America rather than a continued diet of racism, hate, anti-science, anti-environmentalism, corruption, xenophobia, and final destruction of our democratic norms, Trump and his followers have one final trick up their sleeves. Get a massive turnout on Election Day, declare victory before all the votes are counted, and then throw the final determinations into the GOP-controlled Federal Courts.

The antidote: Get out every last vote in every nook and cranny of America for Biden-Harris and other Dems. A “Blue Wave” on Election Day across the nation, and particularly in “battleground states,” is our best defense against destruction of democracy. Another four years of Trump and the GOP and there will be no democracy left to save!

U.S. JUDGE 👩‍⚖️ ORDERS “REDO” OF REGIME’S BOGUS ASYLUM DENIALS

 

https://www.google.com/url?q=https://www.courthousenews.com/judge-orders-feds-to-reconsider-asylum-denials-in-metering-class-action/&source=gmail-imap&ust=1604942652000000&usg=AOvVaw02aXJvfD-mRNvw1ZPs4dCA

Martin Macias, Jr., reports for Courthouse News:

SAN DIEGO (CN) — A federal judge extended the scope of her preliminary injunction on Trump administration restrictions for immigrants seeking asylum at U.S. ports of entry, saying Friday that officials must reopen asylum claims that were denied before the injunction was issued last year.

On July 16, 2019, the Trump administration implemented the “Asylum Transit Rule” which made immigrants’ asylum claims invalid if they arrived at the U.S.-Mexico border from a country other than their country of origin and failed to apply for asylum there first.

Before the so-called asylum ban went into effect, immigration officials had been metering asylum seekers at the border, placing them on waitlists for claim adjudication or simply turning them away because ports of entry were purportedly full.

Immigrants rights groups sued, claiming both policies were unlawful attempts to stem the flow of immigrants attempting to enter the U.S.

Advocates also requested an injunction, arguing the ban permanently barred people from the asylum process if their 30-day window to file for asylum in Mexico — the country they transited through — had expired and if they were “metered” before July 16.

U.S. District Judge Cynthia Bashant sided with advocates and granted an injunction on Nov. 19, 2019.

Bashant said the injunction was not outside the scope of plaintiffs’ initial claims against metering because the Trump administration’s metering policies illegally blocked access to the asylum process.

The injunction barred immigration officials from using the asylum ban to block migrants who were turned back to Mexico under the metering policy.

Bashant also certified a subclass of as many as 26,000 “non-Mexican” asylum seekers who were denied access before the asylum ban went into effect on July 16.

The Trump administration’s appeal of the injunction is still pending before the Ninth Circuit.

. . . .

****************

Read the rest of the article at the link.

Not only are the cruel and lawless White Nationalist policies of the regime harming and killing individuals without due process, they also waste lots of taxpayer money with endless unnecessary litigation and many court-ordered “redos!” 

Vote ‘em out, vote ‘em out!

 

PWS

11-02-20

ON THE MOVE: NDPA SUPERSTAR 🌟 LAURA LYNCH TAPPED TO BECOME SENIOR IMMIGRATION POLICY ATTORNEY FOR NATIONAL IMMIGRATION LAW CENTER (“NILC”)

Laura Lynch
Laura Lynch
Senior Policy Counsel
AILA

A graduate of the University of Baltimore Law, Laura has been Senior Policy Counsel at the American Immigration Lawyers Association (“AILA”) National Office in Washington, D.C. for the past four years. In that role, she engaged with Federal agencies, Congress, and designated AILA committees on immigration issues with a focus on interior enforcement, due process, and removal defense. Immigration Court Reform was one of Laura’s key areas of expertise.

 

Importantly, from my personal standpoint, Laura has been (and will continue to be, I hope), part of the “Informal Strategic Planning Group” for the New Due Process Army (”NDPA”) that includes Dan Kowalski, Michelle Mendez, Debi Sanders, Tess Hellgren, and my Round Table colleagues Judge Jeffrey S. Chase and Judge Ilyce Shugall! Her many contributions to our camaraderie and work in behalf of due process and fundamental fairness have been nothing short of spectacular!

 

The good news is that, although NILC is headquartered in Los Angeles, Laura will be remaining in Washington, D.C. While she tells me that her “precise portfolio” at NILC is “TBD,” I know we will be hearing much more from our “Due Process Superstar” in the future.

 

Thanks for all your past contributions and all the best for the future, Laura, from all of your many “admirers and fellow soldiers in the NDPA!”

 

Due Process Forever!

 

PWS

11-02-20

 

ROUND TABLE 🛡⚔️ SPEAKS OUT ON ACQUIESCENCE IN 9TH CIR, WITH HELP FROM PROFESSOR KARI HONG🦸‍♀️🌟

Professor Kari Hong
Professor Kari Hong
Boston College Law
Photo: BC Law Website

Here’s the brief:

Ramos Mendoza Amicus Roundtable 17 71841

*******************

Thanks, Kari!

Knightess
Knightess of the Round Table

Due Process Forever!

PWS

11-02-20

🇺🇸🇺🇸ELECTION 2020: Work The Phone Banks Today? — Opportunity

🇺🇸

From: Gary Sampliner <gsampliner@gmail.com>

Date: Sun, Nov 1, 2020, 11:03 AM

Subject: Fwd: Something to do on a cold, rainy pre-election Sunday

To: gary sampliner <gsampliner@hotmail.com>

Hi folks — might you have nothing special that you need to do today and be looking to burn off some pre-election nervous energy?   Here’s something you might want to consider that I tried last night: make some followup calls to recipients of Reclaim Our Vote postcards, mostly people of color in NC and other battleground states who haven’t voted recently for whatever reason.  This is a non-partisan group, but it seems safe to assume that most of the people they reach are in the D column.  And you’ll see that many of them (e.g. ex-convicts, confused seniors, people on Indian reservations who don’t know a nearby polling place) can use our help.

Some of you are probably working on other phone banks or text banks with groups you know, but in case you aren’t, I thought these people are particularly good ones to try to reach because they need to be nudged to vote.  You’ll see, on the left side of the computer screen when you call them, how many times they’ve voted in the past three elections — and it’s often 0/3.  Most people don’t answer, of course, so we leave a lot of voicemails, but a few do, and say they’ll come out.

If you’re free any time from 1:00-11:00 (calling to different time zones) today, you can go to https://www.votinginformation.org/callapalooza and give it a shot — pick the state you’re interested in calling.  They’ll also have a Zoom conference that you can link into for a little entertainment and inspiration, and breakout rooms for anyone who needs help in getting linked up with the network or have voter questions that aren’t answered from the online resource guide they give you.

Best — Gary

******************

Get put the vote! Thanks to Deb Sanders for sending this along!

PWS

11-01-20

AILA SUIT SEEKS SKINNY ON STAR CHAMBER SCANDAL — Secret “Remote Adjudication Centers” (“The Racks”) 🤮☠️⚰️ Subvert Justice, Abuse Asylum Seekers!

Under watchful eye of regime officials, “Remote Adjudicators” hone skills in using “rack” to deter asylum seekers from seeking justice:

Star Chamber Justice
“Justice”
Star Chamber
Style

FYI – Link to Press Release.

 

FOR IMMEDIATE RELEASE

October 30, 2020
Contact: Maria Frausto, mfrausto@immcouncil.org

Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases

 

WASHINGTON, DC — Immigration groups filed a lawsuit today in the United States District Court for the District of Columbia against the Executive Office for Immigration Review (EOIR)—which oversees immigration courts—and the General Services Administration (GSA) requesting information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan designed to accelerate removal proceedings at the expense of due process.

 

The lawsuit—filed by the American Immigration Council, American Immigration Lawyers Association, the Chicago AILA Chapter, and the National Immigrant Justice Center— seeks the disclosure of records on the obscure procedural rules for immigration adjudication centers. The centers are a new initiative created under the Trump administration where immigration judges adjudicate immigration cases from around the country in remote-only settings that are closed to the public.

 

Immigration adjudication centers appear to have been created to address immigration court backlogs, but attorneys and immigrants facing deportation have little instruction on the procedures for appearing before these centers. Immigration lawyers and advocates have expressed concerns after public reports indicate the potential expansion of immigration adjudication centers across the country.

 

The lawsuit challenges EOIR’s failure to disclose information in response to a Freedom of Information Act request submitted in March 2020. EOIR and GSA have failed to disclose critical information about what immigration courts presently exist, immigration court expansion, and contracts governing this expansion.

 

“Immigration lawyers and advocates have an interest in pressing for more transparency in the immigration courts, helping ensure the due process rights of all who appear in court, and providing guidance to the lawyers representing people before these courts,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council.

 

“Transparency is essential to a fair day in court. Unfortunately, the secretive creation and expansion of immigration adjudication centers where immigration judges conduct remote-only proceedings in facilities closed to the public demonstrate how opaque an already complex immigration court system has become at the hands of this administration. While the Department of Justice regulations require immigration hearings to generally be open to the public, this administration has imposed significant new barriers to the public’s ability to observe these proceedings and has led to some hearings being conducted in secret, calling into question whether the fundamental elements of due process are being met. We are proud to stand alongside our partners in this effort,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.

 

“Everyone deserves a fair day in court. The lack of transparency in EOIR operations compromises the integrity of our immigration system and undermines public confidence in this system,” said Nell Barker, chair of the American Immigration Lawyers Association’s Chicago Chapter. “The secretive expansion of immigration courts is a blow to due process and adds a layer of unnecessary unpredictability to a system that struggles to inform stakeholders about changing procedures. We are concerned about the increasing inaccessibility of immigration courtrooms to lawyers, clients, and the public.”

 

“The secretive and inaccessible immigration adjudication centers, where judges determine whether noncitizens will be deported to persecution and torture or permanent family separation, are a disturbing example of the manner in which this administration has developed and expanded numerous policies and procedures intended to expedite the deportation of noncitizens without due process,” said Sarah Thompson, senior litigation attorney at the National Immigrant Justice Center. “EOIR must make public its plan for future adjudication centers and the procedures under which these centers operate.”

 

A copy of the complaint is here.

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For more information, contact the American Immigration Council:

Maria Frausto at mfrausto@immcouncil.org or 202-507-7526.

 

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.

 

The National Immigrant Justice Center (NIJC) is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. Visit immigrantjustice.org and follow @NIJC.

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The current system is specifically designed to “break” asylum seekers and their representatives in body and mind.

Will a lawless regime get another four years to finish the job of destroying American democracy and eradicating justice? Or, will there be hope on the horizon for a better future for all Americans!

Vote ‘Em out, vote ‘Em out!

PWS

11-01-20