"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.
Knightess of the Round TableHon. Ilyce Shugall U.S. Immigraton Judge (Retired)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Thanks to our friends Steve Schulman 😇 and Michael Stortz 😇 at Akin Gump for their truly outstanding pro bono assistance on this brief.Couldn’t do it without you!😎
Such an honor to be “fighting the good fight” for due process and fundamental fairness with my colleagues on the Round Table🛡⚔️👩⚖️🧑🏽⚖️👨🏻⚖️. We have made a difference in the lives of some of the most vulnerable and deserving among us. 🗽We have also helped educate the Federal Courts and the public on the ugly realities of our failed, unjust, and totally dysfunctional Immigration “Courts” ☠️🤡🦹🏿♂️, modern day “Star Chambers” ☠️⚰️😪that have become weaponized appendages of “White Nationalist 🤮🏴☠️⚰️👎🏻 nation.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
⚖️🗽Due Process Forever!
Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸
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 as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 22, 2021. NYC non-detained remains closed for hearings.
Vox: Excluded from stimulus relief up until now, US citizens and permanent residents who filed a joint tax return with an undocumented spouse will receive a check for $600, as well as $600 per dependent child. The benefits phase out for individuals making more than $75,000 and couples making more than $150,000.
AP: Susan Rice, Biden’s incoming domestic policy adviser, and Jake Sullivan, his pick for national security adviser, as well as Biden himself, warned that moving too quickly could create a new crisis at the border.
TRAC: Detailed case-by-case government records obtained by TRAC after successful litigation show that in early 2018, the number of federal prosecutions for all immigration-related charges climbed sharply and crested 12,000 for the first time in May after the Department of Justice’s “zero-tolerance” policy went into effect.
TRAC: Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.
MPI: Based on their analysis of data from the Census Bureau’s American Community Survey (ACS), Migration Policy Institute (MPI) researchers find that during the first three years of the Trump administration, participation in TANF, SNAP, and Medicaid declined twice as fast among noncitizens as citizens.
WaPo: A new policy allowing Iranian women to pass down their citizenship to their children marks a long-sought victory for activists and is raising hopes for an estimated 1 million undocumented children born to foreign fathers in the country.
Changes the default filing deadline for non-detained individual hearings from 15 days to 30 days. There also is guidance on the contents of motions for extensions.
DHS and DOJ issued a joint final rule based on a 7/9/20 NPRM clarifying that the danger to the security of the U.S. statutory bar to eligibility for asylum and withholding of removal may encompass emergency public health concerns. Rule is effective 1/22/21. (85 FR 84160, 12/23/20) AILA Doc. No. 20122311
Law 360: A Texas federal judge seemed likely at a hearing Tuesday to strike down an Obama-era program protecting young unauthorized immigrants, but he indicated he may leave open a window to “slice and dice” the program or send it back to the government to revise it.
SCOTUSblog: If the justices take up the border-wall case, it will be the second case added to the court’s docket this term involving the legality of border-wall construction.
The BIA ruled that a conviction for child neglect in the second degree under §163.545(1) of the Oregon Revised Statutes is categorically a “crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). Matter of Rivera-Mendoza, 28 I&N Dec. 184 (BIA 2020) AILA Doc. No. 20122205
The court held that substantial evidence supported the BIA’s denial of withholding of removal to petitioner, finding he had failed to prove a nexus between the alleged persecution and membership in his proposed particular social group of “Honduran landowners.” (Marquez-Paz v. Barr, 12/18/20) AILA Doc. No. 20122109
Law360: The Sixth Circuit on Tuesday held that migrant children are not guaranteed a free lawyer when fighting deportation in immigration court, upholding a Guatemalan man’s conviction for entering the U. S. without authorization after he was deported as a teenager. In a published opinion, a three judge panel said that foreign-born minors do not have a constitutional right to a government-provided lawyer in immigration court, finding that certain sufficient “safeguards” already exist for them, including that immigration judges help pro se immigrants develop the court record and that the government must produce clear evidence that an individual should be deported.
The court found that the petitioner had failed to exhaust his administrative remedies before the BIA for his argument that his 2019 motion to reconsider was timely because it related back to his still-pending 2004 motion to reconsider. (Hernandez-Alvarez v. Barr, 12/16/20) AILA Doc. No. 20122112
The court issued an order granting the petitioner’s unopposed motion to vacate the BIA’s decision in Matter of E-R-A-L-, which pertains to establishing a particular social group based on landownership, and remanded to the BIA for further proceedings. (Albizures-Lopez v. Barr, 12/10/20) AILA Doc. No. 20122203
The court held that USCIS’s denial of the H-1B visa was arbitrary and capricious where USCIS had ruled that computer programmers did not “normally” require a bachelor’s degree, despite relevant language in DOL’s Occupational Outlook Handbook (OOH). (Innova Solutions, Inc. v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that vehicular homicide in Florida is a crime involving moral turpitude (CIMT), and thus upheld the BIA’s determination that the petitioner was removable for having been convicted of two or more CIMTs pursuant to INA §237(a)(2)(A)(ii). (Smith v. Att’y Gen., 12/18/20) AILA Doc. No. 20122113
A district court judge granted summary judgment in favor of two nationwide classes suing USCIS and ICE for failing to timely produce the class members’ immigration files (A files). (Nightingale, et al., v. USCIS, et al., 12/17/20) AILA Doc. No. 20122104
A district court granted the plaintiffs’ motion for class certification and motion to amend the nationwide preliminary injunction in a lawsuit challenging USCIS policy limiting asylum jurisdiction over UAC applicants. (J.O.P. et al., v. DHS, et al., 12/21/20) AILA Doc. No. 20122321
CGRS: A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate two rules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection.
CGRS: Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture.
AIC: The fee increase rule scheduled to take effect January 18 would apply when individuals facing deportation submit certain applications, appeals, and motions to the nation’s immigration courts or the Board of Immigration Appeals, both of which are overseen by the Executive Office for Immigration Review, within the Department of Justice.
CLINIC: Seven Temporary Protected Status (TPS) beneficiaries — who live in the District of Columbia, Maryland, Virginia, and Miami, Florida — and the Central American Resource Center (CARECEN) filed a motion for a preliminary injunction in their suit against the Trump administration for unlawfully blocking TPS beneficiaries’ path to permanent U.S. residence.
DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until January 31, 2021. AILA Doc. No. 20032033
USCIS determined that for January 2021, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference categories must use the Dates for Filing chart. Applicants in all employment-based preference categories must use the Final Action Dates chart. AILA Doc. No. 20122305
USCIS announced it is publishing a notice in the Federal Register revising Form I-131 to remove sections on the Haitian Family Reunification Parole and the Filipino World War II Veterans Parole programs. These changes will terminate the programs when form instruction changes are finalized. AILA Doc. No. 20122312
DHS notice of agreement between the government of the United States of America and the government of the Republic of El Salvador for cooperation in the examination of protection claims. (85 FR 83597, 12/22/20) AILA Doc. No. 20121631
DHS announced that the United States and Honduras have concluded the implementation accords for the Asylum Cooperative Agreement, under which certain migrants requesting asylum or similar humanitarian protection at the border will be transferred to Honduras to seek protection in Honduras. AILA Doc. No. 20122108
President-elect Biden has promised a broad array of reforms that would impact refugees, asylum seekers, and other forced migrants. He has indicated he will restore Temporary Protected Status, place a moratorium on deportations, and end prolonged detention and for-profit detention centers. These are all crucially important to the safety and security of migrants and their families in the United States and other countries, especially in the Western Hemisphere. President-elect Biden has also promised to end the Trump administration’s policy of making asylum seekers “remain in Mexico” while awaiting hearings in U.S. immigration court.
However, in recent weeks, a flawed and fatalistic view of migration to the U.S. southern border has taken hold in some media accounts and reports. It goes like this: President Trump’s Remain in Mexico (or MPP) policy has created a logistical and humanitarian crisis at the southern U.S. border that, despite President-elect Biden’s promises, will be very difficult to undo. Further, a combination of pull and push factors (especially in the wake of hurricanes in Central America) will lead to increased migration to the southern U.S. border this spring such that President-elect Biden will have little choice but to keep the border sealed under an order from the Centers for Disease Control and Prevention (CDC), as he attempts to deal with COVID-19 in border states and fulfill other immigration policy promises—including uniting families the Trump administration ripped apart two years ago.
There are several problems with this line of argument, many of which are addressed in this report. Most fundamentally, keeping the border sealed and migrants waiting in Mexico will perpetuate serious abuses. Family separations and other violations of human rights, as well as violations of U.S. law, will continue to occur under a Biden administration that does not implement new policies at the border. Recently, MPP and the CDC border closure have exacerbated smuggling and trafficking at the border, as well as other forms of abuse against migrants. For example, the CDC order has led to the repatriation of Nicaraguan dissidents as well as the return of a sexually abused Guatemalan child. It has also led asylum seekers to try to cross undetected in remote desert areas. Further, unwinding MPP and allowing asylum seekers to ask for protection at the border is not only the right thing to do, but also feasible with the proper planning. Indeed, it presents the incoming administration with an opportunity to rethink migration management, especially for those seeking asylum, and to implement a new screening process that is both more humane and more efficient.
President-elect Biden has invoked President Franklin Delano Roosevelt—healer, rebuilder, and practical problem solver—as a model. During World War II, Roosevelt planned and devoted significant resources to resolving the largest displacement crisis the world had ever known. This planning was part of an effort to ensure that what happened in 1939 to the S.S. St. Louis—a ship of asylum-seeking Jews turned away by the United States and other countries—would not occur again.
During his first week in office, President-elect Biden should issue an executive order on border asylum policy that departs dramatically from that which President Trump put forth during his first week. President Biden’s executive order should give asylum seekers access to the border and provide for cooperation with border states and shelters to safely and humanely receive asylum seekers. It should allocate resources to alternatives to detention, including case management, and to improved adjudication of asylum claims in immigration courts, especially through provision of legal services. It should also commit to ending practices associated with expedited removal of asylum seekers that have resulted in abuses, and to the use of parole to unwind MPP. Finally, through revocation of Trump administration decisions, regulations, and policies, as well as through settlement of lawsuits and the withdrawal of appeals to federal courts regarding these policies, the executive order should commit to restoring asylum eligibility to those who have fled persecution but have been denied or prevented from obtaining protection.
In taking such action, President-elect Biden would be fulfilling not only his campaign promises but the commitment he made when he voted for Senate passage of the Refugee Act of 1980. That law, supported by large majorities of both parties, promised to ensure fair access to asylum at the border.
This report shows why it is imperative that the Biden administration do this rather than keep us mired in a policy framework that does not work and that has led to a cycle of crises. It does so by looking back to a momentous time of transition about thirty years ago. With the Cold War ending, the United States had to rethink its assumptions about who merited refugee status. Only a handful of refugee resettlement slots in the U.S. Refugee Program were allotted to Central Americans, and the United States had not yet developed clear procedures for effectively handling asylum seekers at the southwestern border. Rather than acknowledge the forces pushing people northward, U.S. policymakers adopted a paradigm that was focused primarily, if not exclusively, on deterrence. This is a paradigm that we are still in today.
At different points over the past thirty years, humanitarian and constructive policies have tempered the harshness of this paradigm, and such policies have also brought benefits in terms of cost and efficiency. These policies need to be adapted and scaled up. But they also need to be placed within a welcoming framework that does not presume asylum seekers are a threat. Instead of devoting tremendous resources to a futile and rights-violating attempt to block those already on the move, we have to try to better understand the drivers of migration, which, for Central Americans, include corruption, poverty, insecurity, and violence.We must devote resources instead to humanely receiving asylum seekers and adjudicating their claims fairly. We also have to stop assuming that the best place to manage admissions of all Central Americans seeking protection is at the border.
The Deterrence Paradigm
The deterrence paradigm has been implemented repeatedly using the same counterproductive strategies.
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Read the rear of Yael’s article at the link.
👍🏼👍🏼👍🏼👍🏼👍🏼⚖️🗽🇺🇸
Folks like my Round Table 🛡⚔️ colleague Judge Paul Grussendorf and I have been “preaching” for an abandonment of the unlawful, inhumane, incredibly wasteful, and demonstrably ineffective “deterrence paradigm.”
The skill set to establish a lawful, better, humane, efficient asylum system, consistent with our Constitutional, statutory, and international obligations is out there, mainly in the private/NGO/academic communities. I/O/W the “practical scholars, litigators, and advocates” in the NDPA.
It’s a just a question of the incoming Biden/Harris Administration getting beyond the “enforcement only” mentality, personnel, and White Nationalist nativist thinking that currently infects the entire USG immigration bureaucracy, at all levels. Replace the current failed leadership with experts from the NDPA and empower them to work with other experts in the private sector to institute a better system that would be no more costly, likely less, than the current “built to fail” abominations that not only waste resources but destroy human lives and are an ugly stain on our national conscience!
I also appreciate Yael’s recognition of the pressing and compelling need to “end the Clown Show 🤡🦹🏿♂️☠️@ EOIR:”
Immigration Court Reform
EOIR policies during the Trump administration have been at odds with principles of due process and judicial independence. These include the imposition of numeric case completion quotas and docket management policies that deprive asylum seekers of procedural protections; appointment of judges who almost exclusively come from prosecutorial backgrounds (especially working at DHS and in law enforcement); promotion to permanent positions on an expanded BIA of judges with asylum denial rates much higher than the national average; and procedures that limit the ability of claimants to effectively appeal their cases. The Biden administration should conduct an urgent review of EOIR hiring practices and immigration court procedures and develop recommendations for regulatory or structural changes consistent with the protection needs of asylum seekers.
The critical “urgent review” should be done by a “Team of Experts from the NDPA” brought in on an immediate temporary basis, if necessary, in accordance with Federal Personnel Rules, to replace the current Senior “Management” @ EOIR as well as the entire BIA. There’s no better way to fix the system than to take over management, restore fairness and order, and get inside the current disastrous mess @ the Clown Show 🤡🦹🏿♂️! Importantly, the “Team of Experts” with effective operational control could immediately begin fixing (and conversely stop aggravating and creating) the glaring problems while putting the structure and personnel in place for long-term reforms.
Lives ☠️⚰️ are at stake here! We need ACTION, not merely study and evaluation. “Fixing the system on the fly” may be challenging, but it’s perfectly within the capabilities of the right team of NDPA experts! Dems often prefer study and dialogue to effective actions. As Toby Keith would say: We need “a little less talk and a lot more action.”
Published Dec. 27, 2020
Updated Dec. 29, 2020, 10:07 a.m. ET
Last Wednesday, I broke the news to Heather Cox Richardson that she was the most successful individual author of a paid publication on the breakout newsletter platform Substack.
Early that morning, she had posted that day’s installment of “Letters From an American” to Facebook, quickly garnering more than 50,000 reactions and then, at 2:14 a.m., she emailed it to about 350,000 people. She summarized, as she always does, the events of the day, and her 1,120 words covered a bipartisan vote on a spending measure, President Trump’s surprise attack on that bill, and a wave of presidential pardons. Her voice was, as it always is, calm, at a slight distance from the moment: “Normally, pardons go through the Justice Department, reviewed by the pardon attorney there, but the president has the right to act without consulting the Department of Justice,” she wrote. “He has done so.”
The news of her ranking seemed to startle Dr. Richardson, who in her day job is a professor of 19th century American history at Boston College. The Substack leader board, a subject of fascination among media insiders, is a long way from her life on a Maine peninsula — particularly as the pandemic has ended her commute — that seems drawn from the era she studies. On our Zoom chat, she sat under a portrait that appeared as if it could be her in period costume, but is, in fact, her great-great-grandmother, who lived in the same fishing village, population a bit over 600.
She says she tries not to think too much about the size of her audience because that would be paralyzing, and instead often thinks of what she’s writing as a useful primary document for some future version of her historian self. But there was no ignoring her metrics when her accountant told her how much she would owe in taxes this year, and, by extension, just how much revenue her unexpected success had brought. By my conservative estimate based on public and private Substack figures, the $5 monthly subscriptions to participate in her comments section are on track to bring in more than a million dollars a year, a figure she ascribes to this moment in history.
“We’re in an inflection moment of American politics, and one of the things that happens in that moment is that a lot of people get involved in politics again,” she said.
Many of those newly energized Americans are women around Dr. Richardson’s age, 58, and they form the bulk of her audience. She’s writing for people who want to leave an article feeling “smarter not dumber,” she says, and who don’t want to learn about the events of the day through the panicked channels of cable news and Twitter, but calmly situated in the long sweep of American history and values.
Dr. Richardson’s focus on straightforward explanations to a mass audience comes as much of the American media is going in the opposite direction, driven by the incentives of subscription economics that push newspapers, magazines, and cable channels alike toward super-serving subscribers, making you feel as if you’re on the right team, part of the right faction, at least a member of the right community. She’s not the only one to have realized that a lot of people feel left out of the media conversation. Many of the most interesting efforts in journalism in 2021, some of them nonprofit organizations inspired by last summer’s protests over racism, will be trying to reach people who are not part of that in-group chat. One new nonprofit, Capital B, plans to talk to Black audiences, while another well-regarded model is Detroit’s Outlier Media, which is relentlessly local and often delivered by text message. For Dr. Richardson’s audience, it’s an intimate connection. She spends hours a day answering emails from readers. She spent most of Saturday sending thank-you notes for Christmas presents.
The challenge for many of those efforts, and for nonprofit news organizations in general, has been reaching large numbers of people. Dr. Richardson, whose run of short essays began when she was stunned by the response to one she posted last September, has done that by accident, though she credits her huge audience of older women to the deepening gender gap in American politics.
“What I am doing is speaking to women who have not necessarily been paying attention to politics, older people who had not been engaged,” Dr. Richardson said. “I’m an older woman and I’m speaking to other women about being empowered.”
Dr. Richardson confounds many of the media’s assumptions about this moment. She built a huge and devoted following on Facebook, which is widely and often accurately viewed in media circles as a home of misinformation, and where most journalists don’t see their personal pages as meaningful channels for their work.
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Read Ben’s full article at the link.
Dr. HCR is certainly a favorite at our house! Her writing is very “accessible” — you don’t have to be a scholar or an academic to understand her “info packed” daily letters.
She also illustrates the important role of history and the liberal arts at promoting critical thinking and informed analysis at all levels of our educational system.
“Conspiracy theories,” intentionally false narratives, myths, racial bias, inequality, and hatred all flourish in the dark.
Thanks to our leading “Warrior Queen” Ilyce and her team of knightesses and knights who took the lead on this phase of the never ending battle for “truth, justice, and the American way.”
I trust that it will take more than another pathetic “Alternative Fact Sheet” 🤥 to save the sorry bunch @ “EOIR’s Clown Tower”🤡🦹🏿♂️ in Falls Church from accountability for their sycophancy, false narratives, and constant assaults on due process, the rule of law, truth, and human decency. 👎🏻🏴☠️☠️⚰️🤮 https://www.justice.gov/eoir/page/file/1161001/download
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Indicative and very telling that as justice further deteriorates, backlogs mushroom, productivity drops, public outrage grows, chaos reigns, (already rock bottom) morale plummets, and vulnerable humans suffer, the “malicious incompetents” 🤡🦹🏿♂️ at EOIR spend time and public resources on this nonsense!
There will be neither racial justice nor social justice in America without “radical due process reform” that ends forever the disgraceful “Dred Scottification” of “the other” (particularly migrants of color, women, families, and, most disgustingly, children) by the EOIR Clown Courts!🤡🦹🏿♂️☠️ To paraphrase Rev. King, “Injustice to one is injustice to all.”
Due Process Forever!⚖️🗽🇺🇸👍🏼 EOIR’s Assault On Asylum Seekers, Never!👎🏻🏴☠️
Trump has brought impunity to the highest office in the land, wielding a wrecking ball to the most precious windowpane of all – American democracy.
The message? A president can obstruct special counsels’ investigations of his wrongdoing, push foreign officials to dig up dirt on political rivals, fire inspectors general who find corruption, order the entire executive branch to refuse congressional subpoenas, flood the Internet with fake information about his opponents, refuse to release his tax returns, accuse the press of being “fake media” and “enemies of the people”, and make money off his presidency.
And he can get away with it. Almost half of the electorate will even vote for his reelection.
A president can also lie about the results of an election without a shred of evidence – and yet, according to polls, be believed by the vast majority of those who voted for him.
Trump’s recent pardons have broken double-pane windows.
Not only has he shattered the norm for presidential pardons – usually granted because of a petitioner’s good conduct after conviction and service of sentence – but he’s pardoned people who themselves shattered windows. By pardoning them, he has rendered them unaccountable for their acts.
They include aides convicted of lying to the FBI and threatening potential witnesses in order to protect him; his son-in-law’s father, who pleaded guilty to tax evasion, witness tampering, illegal campaign contributions, and lying to the Federal Election Commission; Blackwater security guards convicted of murdering Iraqi civilians, including women and children; Border Patrol agents convicted of assaulting or shooting unarmed suspects; and Republican lawmakers and their aides found guilty of fraud, obstruction of justice and campaign finance violations.
It’s not simply the size of the broken window that undermines standards, according to Wilson and Kelling. It’s the willingness of society to look the other way. If no one is held accountable, norms collapse.
Trump may face a barrage of lawsuits when he leaves office, possibly including criminal charges. But it’s unlikely he’ll go to jail. Presidential immunity or a self-pardon will protect him. Prosecutorial discretion would almost certainly argue against indictment, in any event. No former president has ever been convicted of a crime. The mere possibility of a criminal trial for Trump would ignite a partisan brawl across the nation.
Congress may try to limit the power of future presidents – strengthening congressional oversight, fortifying the independence of inspectors general, demanding more financial disclosure, increasing penalties on presidential aides who break laws, restricting the pardon process, and so on.
But Congress – a co-equal branch of government under the Constitution – cannot rein in rogue presidents. And the courts don’t want to weigh in on political questions.
The appalling reality is that Trump may get away with it. And in getting away with it he will have changed and degraded the norms governing American presidents. The giant windows he’s broken are invitations to a future president to break even more.
Nothing will correct this unless or until an overwhelming majority of Americans recognize and condemn what has occurred.
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Read Reich’s full article at the link.
As I have mentioned, the lack of accountability could be a problem for the Biden-Harris Administration. And, 74 million voters who pulled the lever for an overtly corrupt, anti-American, racist, clown is an even bigger obstacle to the future of our nation.
On the other hand, although he was a “minority President” from the git go, Trump had nothing but contempt for the majority of us who didn’t favor his maliciously incompetent and divisive policies; he completely disregarded both truth and the common good.
Biden and Harris start with something that Trump never had — the support of a clear majority of 7 million plus voters. So, if they govern wisely, humanely, and in the public interest they could succeed in saving our nation from the 74 million who joined Trump’s war against American democracy. And despite their short-signtedness and intransigence, the 74 million and their families in Trumpland will get the benefits of better government in the public interest. Sometimes, you have to save folks in spite of themselves.
If the policies of decency, honesty, courage, and governing in the public interest work, it could create a longer-term governing majority. If not, it will still be worth a shot at saving our democracy. Another Administration of Trump and his minority minions would be the end of our democracy anyway —the majority of us have little to lose by giving it our best shot with the Biden Harris Team!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Groups Challenge Trump Administration Rule Gutting Asylum
Thursday, December 24, 2020
Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.
“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”
The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.
For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.
“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”
The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.
The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.
The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiplecourts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.
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Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.
Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future.
The bipartisan compromise was considered a done deal and won sweeping approval in the House and Senate after the White House assured GOP leaders that Trump supported it.
If he refuses to sign the deal, which is attached to a $1.4-trillion government funding bill, it will force a federal government shutdown, in addition to delaying aid checks and halting unemployment benefits and eviction protections in the most dire stretch of the pandemic.
“Made many calls and had meetings at Trump International in Palm Beach, Florida. Why would politicians not want to give people $2000, rather than only $600?” he tweeted after leaving the golf course Friday afternoon. “It wasn’t their fault, it was China. Give our people the money!”
Trump’s attack on the bill has been seen, at least in part, as punishment for what he considers insufficient backing by congressional Republicans for his push to overturn the Nov. 3 election results with unfounded claims of fraud.
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Read the full article at the link.
Of course it’s not about China; it’s about the worst President in history and his totally worthless party of sycophants, bigots, and anti-American “situational skinflints.”
Plenty of public funding for tax breaks, unneeded walls, environmental destruction, and abusive “law enforcement.” Not so much for American workers, small businesses, essential workers, teachers, civil servants, and others struggling to survive during the crisis unnecessarily deepened by the “malicious incompetence” of the “Evil Clown Prez”🤡🦹🏿♂️ and his anti-democracy party.
BTW, is Lindsay “Scumbag” Graham 🤮going for the title of “third worst human on the public dole” — right behind the “ECP”🤡🦹🏿♂️ & the Grauleiter☠️?
26 days and counting to the end of the kakistocracy🏴☠️!
As our eyes fall upon the familiar manger scenes scattered throughout our churches and homes this Christmas season, it is hard not to think about the millions of people from that same manger land who are seeking refuge from terror and oppression now 2,000 years later.
Where will they go? Who will give them shelter?
As Oliver Willis with Media Matters tweeted: “if only we had a seasonally appropriate story about middle eastern people seeking refuge being turned away by the heartless.”
This less-than-140-character comment has inspired thousands of words in response, many of them from conservative Christians attacking Willis for committing a grave offense against the Christmas story. “Christmas is about Christ,” they insist, “not Syrian refugees. The holy family was simply returning to Bethlehem for a census.” Factually, these critics are right. But they miss the much larger point of the
The Christmas story is not about a refugee family, but it is about a family seeking refuge. Ordered by an occupying government to travel by foot for days on end so that Caesar Augustus could count the number of people under his order, an expectant mother at the peak of her pregnancy is forced to undergo the single most dangerous experience of a first-century woman’s life not at home, but away in a manger.
It was a fiercely political environment through which they wandered. Why should we pretend like it wasn’t?
. . . .
I believe the Christmas story should open our eyes and our hearts to those most vulnerable in our midst. To those whose only hope is to travel by foot and inflatable raft for days in search of a livable life—many of whom look very much like the Middle Eastern Mary, Jesus’ mother.
. . . .
When Jesus is asked how one inherits eternal life, he responds with the story of the Good Samaritan. The most startling part of the story is that in Jesus’ time Samaritans were perceived similarly to American Muslims today.
Imagine the Pope, when asked how one gets into heaven, answering with a story about a young Muslim from Syria. This is the story Jesus tells.
Jesus tells us to welcome the stranger, to feed the hungry, to go and sell all your possessions and give the money to the poor. Jesus asks that we treat all of humanity with the same love, kindness and generosity that he modeled throughout his life.
The Christmas story reminds us of a family struggling under the yoke of an oppressive regime. Of a God who became human to take on our struggles and strife and to embody divine love, whose light shines on all. As he tells us, whatever we have done for the least among us we have done to him.
As followers of Jesus we are called to welcome the strangers of our time. To return the care shown by the Good Samaritan to today’s marginalized communities. And to open our hearts and our doors to those seeking refuge this Christmas season, whatever their religion.
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Read the complete article at the link.
Rev. Jones’s words are as true today, even in the middle of a pandemic, as they were in 2015 when she wrote them.
According to this specious reasoning, that justifies an indefinite extension of the current regime’s cruel, bogus, and illegal refugee bans, including “Let ‘Em Die in Mexico” by the new Administration while it “cautiously figures things out” (something the Obama Administration never managed to do over eight painful years of botched asylum policies). I call BS! In this situation, every day of unnecessary delay in ending the regime’s racist policies endangers human lives and mocks our claim to be a “nation of laws.”
I repeat the words of my Round Table friend & colleague Judge Paul Grussendorf, a man who has first-had experience with refugees at all levels of our system and who, unlike the Editorial Board and the nativists, has “walked the walk and talked the talk:”
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
Hon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.com
Judge Grussendorf has forgotten more about asylum and refugee law and practice, and the humanity they serve, than the Editorial Board or the nativist alarmists (“modern day chicken🐥 littles”) they mimic will ever know.
We’ve survived four years of a maliciously incompetent regime that thrives on disorder, lies, corruption, promoting human misery, inequality, racism, and has intentionally sought to undermine our democracy. Refugees actually bring to the table hope, courage, skills, self-sacrifice, values, and the same ideals on which our country was founded. Indeed, “saving ourselves by saving others” was the theme of one of my first post-retirement essays in 2016. https://immigrationcourtside.com/saving-child-migrants-while-saving-ourselves/
We actually have both the legal tools and the professional expertise readily available to treat asylum seekers and other migrants fairly. The last two Administrations have basically either failed to use existing mechanisms properly or, as in the case of the regime, actively worked to disassemble that which works.
Reversing these disgraceful trends isn’t rocket science. We can institute and apply the correct legal standards in a fair and reasonable manner. There are loads of folks out there, many in them in the private or NGO sector, who know how to work with refugees, make fair determinations, resettle those who qualify, and institute humane alternatives for those who don’t fit within our current system. Since the regime trashed our international humanitarian obligations, many trained refugee and humanitarian professionals are more than ready to resume using their skills and expertise in refugee matters that was so stupidly, immorally, and improperly “shelved” by the regime.
It might not happen on January 21, 2021, but it could and should happen within a short time thereafter with the right folks in change and a concerted effort on the part of the Biden-Harris Administration to put them in place where they can solve the problems. Getting our asylum, refugee, and Immigration Court systems functioning needs to be a national priority of the highest order, right after COVID relief and economic help! It’s a critical part of the Biden-Harris Administration’s overriding commitment to racial and social justice!
Not surprisingly, refugee crises and the need for a strong, competent, lawful response seldom, if ever, come upon us in “in the best of times” when we are completely prepared. Refugee crises almost always come to a head during times of war, natural disaster, famine, revolution, or worldwide economic depression and disorder. The UN Refugee Convention sprung from the aftermath of WW II and Cold War, hardly stable times in history.
We can and must make carrying through on our legal and humanitarian obligations to the most vulnerable humans in the world, even in difficult and challenging times, part of our obligation to “show Christ-like love in word and deed” regardless of our religious affiliation, if any.
Christ never asked his followers to do what was easy, profitable, ego-satisfying, or non-threatening — he asked others to follow him in unselfishly taking risk, believing in a better world to come, and “putting it all on the line” for humanity. Those are noble principles that all should be able to agree and act upon.
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Jacob Soboroff reports for NBC News:
Inside the effort to provide mental health care to migrant families
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Seneca Family of Agencies provides mental health care to migrant families separated by the Trump administration. NBC News’ Jacob Soboroff reports on the obstacles faced by the nonprofit in locating families.
Jacob and his terrific NBC News colleague Julia Edwards Ainsley have been at the forefront of exposing the irreparable human carnage and lasting trauma caused by the regime’s unlawful, racist, White Nationalist immigration policies (some of which were unconscionably “greenlighted” by an immoral and irresponsible Supremes GOP majority that views themselves and their rotten to the core, inhumane, right-wing ideology as above the needless human suffering they further and encourage).
The “perps” like,”Gonzo” Sessions, Grauleiter Miller, Kirstjen Nielsen, “Big Mac With Lies” McAleenan, Noel Francisco, Rod Rosenstein, et al, walk free while the victims continue to suffer and others, like the Christ-like folks at Seneca Family of Agencies, are left to pick up the pieces! How is this “justice?”
Our national policies have truly abandoned Christ’s values of self-sacrifice, mercy, generosity in spirit and deed, courage in the face of oppression, human compassion, justice, and assistance for the most vulnerable among us under the perverted and immoral “leadership” of a man and his party without humane values or respect for truth who stand for absolutely nothing that is decent in the world.
As Americans suffer and die from the pandemic he mocked, downplayed, and mishandled; unemployed Americans are dissed and shortchanged by his party of underachieving, out of touch fat cats, liars, cowards, and truth deniers; asylum seekers needlessly suffer in squalid camps in Mexico; refugees scorned, unlawfully and immorally abandoned and abused by the world’s richest country face persecution, torture, despair, and death; and non-criminals rot in DHS’s “New American Gulag,” the immoral Grifter-in-Chief lives it up at taxpayer expense for one last Christmas at his Florida resort; fumes about a fair and square election that he lost big time; savors a rash of holiday executions; delays bipartisan COVID relief; ferments treason against our republic; and pardons a wide range of scumbags, felons, war criminals, family members, cronies, fraudsters, and other totally undeserving characters.
But, there is hope for our world at Christmas: 27 days and counting to the end of the kakistocracy, expulsion of the unqualified con-man and his motley crew of criminals and cronies, and the ascension of a real President and Vice President, Joe Biden and Kamala Harris, to lead us, and perhaps our world, out of the current mess to a kinder, brighter future. That might be the best present of all this Christmas.
WASHINGTON, D.C.(December 23, 2020) — A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate tworules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection. The new rules, in effect since August, force asylum seekers to wait years for their cases to move through the backlogged immigration system before they may lawfully earn an income.
“These rules were one cruel part of the Trump administration’s continuous efforts throughout its single term in office to dismantle the United States’ commitment to provide refuge to people fleeing persecution,” said Keren Zwick, litigation director for the National Immigrant Justice Center, which is co-counsel in the case. “These particular rules betray so much of what our country is supposed to value; they try to deter asylum seekers from coming at all and deprive those who make it here of the means to support themselves and their families.”
The rules bar asylum applicants from receiving work permits for at least a year after they file their asylum applications and prevent some individuals from working for the entire duration of their cases — often several years.
Quinn Emanuel Urquhart & Sullivan, LLP, the Center for Gender & Refugee Studies, and Kids in Need of Defense also are providing co-counsel in the case, representing 14 individuals and three organizational plaintiffs before the U.S. District Court for the District of Columbia.
The individual plaintiffs in the case are asylum seekers, including transgender women and parents with small children, who fled political persecution, gender-based violence, or gang and drug-cartel violence and are prevented under the new rules from receiving work permits. Three organizational plaintiffs — AsylumWorks, Tahirih Justice Center, and Community Legal Services in East Palo Alto — say the new rules threaten to derail their missions to provide employment assistance and legal and social services to asylum seekers. Asylum seekers’ ability to earn an income is critical for them to be able to pursue their legal cases and meet basic needs such as housing and mental and medical healthcare, and to avoid falling victim to human trafficking or other exploitation. Furthermore, in many states, work permits are the only identification documentation asylum seekers receive until they are granted protection.
“This lawsuit is about upholding basic human dignity,” said Joan Hodges-Wu, founder and executive director of AsylumWorks, lead plaintiff in the case. “Asylum seekers are simply looking for a fair shake — the chance to work, pay for their own housing, feed and clothe their families. Our asylum system should be rooted in justice and compassion. Instead, this policy forces future Americans — many of whom have already escaped unspeakable hardship — into further danger and depravity. This is a crisis the Trump Administration is determined to make worse. Denying the right to work for one year means unnecessarily delaying the time before asylum seekers can become productive, tax-paying members of the workforce, and denying our country vital frontline workers willing to risk their lives at this critical time.”
“These rules will force courageous survivors of violence into dangerously precarious living situations, needlessly compounding their suffering. They will also make it significantly more difficult for asylum seekers to afford legal representation, which we know can make a life-saving difference in these cases, and to sustain themselves and their families while they seek protection,” said Annie Daher, staff attorney at the Center for Gender & Refugee Studies, co-counsel in the case. “The rules will undoubtedly result in refugees being wrongly denied asylum and ordered deported to the very dangers they have fled.”
In its comments to the Federal Register, the Trump administration said that governments should take responsibility for individuals who may be harmed by the rule, stating that asylum seekers who may become homeless as a result of the rule changes should “become familiar with the homelessness resources provided by the state where they intend to reside.”
The plaintiffs ask the district court to vacate the proposed rules, arguing the rules violate U.S. laws and that the government did not provide adequate rationale for the harm the rules would cause. The lawsuit also argues that Wolf was not validly serving in that role when the agency issued the rules and Mizelle was no longer validly serving in that role when he signed the rules. Federal courts have already found that Wolf was not lawfully appointed to his position when he enacted other harmful immigration rules, including the administration’s failed attempt to end the Deferred Action for Childhood Arrivals program.
Additional plaintiffs in the case offered the following statements:
Richard Caldarone, litigation counsel, Tahirih Justice Center: “Instead of allowing those fleeing violence and persecution to live their lives while they pursue relief in the United States, the government has deliberately chosen to condemn survivors and other asylum seekers to lengthy periods of homelessness, food insecurity, and unnecessary poverty. There are many understandable reasons why survivors of violence may wait more than a year to apply for asylum – including the need to heal from trauma or the need to avoid reliving painful memories. Our immigration system must uphold the right for survivors to work while their cases continue, rather than slamming the door shut to safety.”
Misha Seay, Managing Attorney, Community Legal Services in East Palo Alto: “These rules are a cruel attempt at forcing asylum seekers into poverty and homelessness if they choose to move forward with their asylum claims and wait for their day in court, which in some cases may take years. Asylum seekers will be stuck in a catch-22 of being unable to afford an attorney to help them apply for a work permit and seek asylum, and unable to lawfully work and earn a living so that they can afford to hire an attorney,” says Misha Seay, Managing Attorney at Community Legal Services in East Palo Alto. “Our government’s commitment to providing protection to those fleeing persecution cannot be fulfilled if we make their everyday life impossible while they navigate that process.”
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The National Immigrant Justice Center 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.
NATIONAL IMMIGRANT JUSTICE CENTER
224 S. Michigan Avenue, Suite 600 | Chicago, Illinois 60604 immigrantjustice.org
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Thanks, Joan, my friend and a true hero of the NDPA, for speaking out and taking action to fight the “crimes against humanity” that continue to be committed by the kakistocracy and their baggage handlers on their way out the door!
Under Joan’s dynamic and courageous leadership, AsylumWorks has been providing support and community assistance services to asylum seekers in the D.C. area for several years. She has now expanded her organization’s mission to include impact litigation to protect and enhance the human dignity and the human rights of asylum seekers!
Check out AsylumWorks and their great programs (and contribute to this most worthy cause) at their website here:
Carl C. Risch was appointed Deputy Director of the Executive Office for Immigration Review in December 2020. Deputy Director Risch earned a Bachelor of Arts in 1992 from Bloomsburg University, Bloomsburg, Pennsylvania, and a Juris Doctor in 1995 from Dickinson School of Law, Carlisle, Pennsylvania. From 2017 to 2020, he served as Assistant Secretary of State for Consular Affairs, U.S. Department of State (DOS), where he managed the worldwide visa and passport functions for the United States Government. From 2006 to 2017, he served in various positions within the U. S. Citizenship and Immigration Services (USCIS), including the Administrative Appeals Office, the Manila, Philippines, and Seoul, Korea field offices, and in the Office of the Director, where he served as acting Chief of Staff. From 2002 to 2006, he was in private practice. From 1999 to 2002, he served as a Foreign Service Officer with the DOS. From 1995 to 1999, he was in private practice. Deputy Director Risch is a member of the District of Columbia Bar.
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Notable:
No judicial experience;
No Immigration Court experience;
No experience in court administration;
No known experience advancing or protecting due process rights of individuals in judicial setting;
The last month of a soundly defeated Administration seems like a rather unusual time to fill this position with a former Trump political appointee.
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Will the Biden-Harris Administration have the guts and competence to “get out the broom” 🧹and do a “clean sweep” of EOIR Mis-Management in Falls Church? Or will they follow the “all-too-familiar Dem gameplan” of allowing GOP holdovers to undermine their programs and policies? Only time will tell.
But, this time folks who played a key role in the Biden-Harris victory and who expect a firm commitment to social justice and competent government will be watching EOIR closely to see if and when the “Big Top” 🎪 folds up, the Clown Show 🤡 leaves town, and a competently run court system ⚖️ staffed by real judges 🧑🏽⚖️👩⚖️ with expertise in immigration and human rights and strong reputations for enforcing and promoting due process and fundamental fairness 🗽🇺🇸 takes its place.
The incoming Administration should not expect to get away with a repeat of the Obama debacle at EOIR! Fix it or own it!
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 as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 8, 2021. NYC non-detained remains closed for hearings.
USCIS: In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020…This flexibility applies to the above documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and Jan. 31, 2021, inclusive.
Vox: The Asylum Cooperative Agreement, signed in September 2019 with the approval of Salvadoran President Nayib Bukele, is one of three such pacts that the US has made in an effort to discourage regional migration. The other agreements are with Honduras and Guatemala, although only the agreement with Guatemala has gone into effect so far, leading to the deportations of nearly 1,000 Hondurans and Salvadorans.
ProPublica: Last year, Congress quietly passed a bill allowing thousands of Liberian immigrants to apply for green cards. But the Trump administration hardly made it easy, and now the application window is closing.
Buzzfeed: On Friday, six families from Guatemala and six families from El Salvador were taken to separate airports to be deported by ICE, said Shalyn Fluharty, an attorney with Proyecto Dilley, which offers legal services to detained families. Some of the families were pulled from the plane at the last minute while asylum officers reviewed their claims, but at least one family was deported.
Documented: New York Gov. Andrew Cuomo (D) finally signed the Protect Our Courts Act after the New York State Legislature approved it in July. This bill is meant to stop law enforcement from arresting undocumented immigrants at courthouses. Between 2016 and 2018, the U.S. Immigration and Customs Enforcement activity in and around New York courthouses grew from 11 operations to 202 operations.
SCOTUSblog: The Supreme Court on Friday ruled that it was too early to resolve the legality of the Trump administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The decision puts at least a temporary end to the litigation challenging the president’s plan. But the ruling, from which the court’s three liberal justices dissented, leaves open the possibility that the challengers could return to court if the Trump administration implements the plan during its final month in office.
As a result of class action litigation in Vangala v. USCIS challenging USCIS’s “No Blank Space” policy, USCIS has agreed to stop implementing the rejection policy for asylum applications and U visa petitions starting December 28, 2020. AILA provides a practice alert with additional details. AILA Doc. No. 20122100
USCIS and ICE Must Give People Access to Their Immigration Files After Losing Lawsuit
AIC: People who need access to their government immigration records scored a huge victory on December 17. A judge ruled that a nationwide class of individuals should have access to their immigration files—called A-Files—within the timeframes outlined by law.
The BIA ruled that expert testimony is evidence, but only an immigration judge makes factual findings, and that when a factual finding is inconsistent with an expert’s opinion, judges should explain the reasons behind the factual findings. Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020) AILA Doc. No. 20121736
The court dismissed the petitions for review of the IJ’s decisions denying the petitioners’ motions to reopen their credible fear determinations on the basis that IJs lack jurisdiction to reopen credible fear proceedings under 8 CFR §1208.30(g)(2)(iv)(A). (Singh v. Barr, 12/9/20) AILA Doc. No. 20121632
CA9 concluded that USCIS’s denial of an H-1B petition was arbitrary and capricious because it misrepresented the OOH and failed to consider OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education” for computer programmers. (Innova Solutions v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that the government had failed to rebut the presumption that the petitioner, a son of the chief of the Challa tribe who had received death threats from members of the rival Atwode tribe, had a well-founded fear of future persecution in Ghana. (Addo v. Barr, 12/14/20) AILA Doc. No. 20121635
The court upheld the denial of Convention Against Torture (CAT) relief as to petitioner, who alleged he had been attacked in Nigeria in 2006 because of his homosexuality, finding that the BIA’s adverse credibility determination was supported by substantial evidence. (Igiebor v. Barr, 12/7/20) AILA Doc. No. 20121634
The court held that petitioner was bound by her attorney’s concession of removability because it was not obviously incorrect and because it was not a product of her attorney’s unreasonable professional judgment or so unfair that it led to an unjust result. (Dos Santos v. Att’y Gen., 12/11/20) AILA Doc. No. 20121636
DOS announced that immigrant visa applicants who are named plaintiffs in Young v. Trump should contact the National Visa Center for guidance on scheduling a visa interview, or if they case had previously been scheduled, their nearest embassy or consulate. AILA Doc. No. 20121731
USCIS updated guidance regarding adjustment of status (AOS) interview criteria and guidelines for refugees and asylees. USCIS updated the list of categories of AOS cases in which USCIS may waive the required interview, and updated and clarified interview criteria for asylee and refugee AOS cases. AILA Doc. No. 20121531
USCIS issued a stakeholder message noting that a significant increase in filings in recent weeks and facility capacity restrictions as a result of the COVID-19 pandemic are causing “significant delays for processing receipt notices” for forms and applications filed with the USCIS Lockbox. AILA Doc. No. 20121534
DHS and DOJ final rule which finalizes, with minor changes, the Interim Final Rule published at 84 FR 33829 on 7/16/19, which barred from asylum eligibility individuals who transit through a third country without seeking protection. The rule is effective 1/19/21. (85 FR 82260, 12/17/20) AILA Doc. No. 20121633
EOIR final rule increasing the filing fees for applications, appeals, and motions that are subject to an EOIR-determined fee. The rule is effective 1/19/21. (85 FR 82750, 12/18/20) AILA Doc. No. 20121533
EOIR final rule making changes to the regulations on asylum and withholding of removal. The final rule adopts the notice of proposed rulemaking published at 85 FR 58692 on 9/23/20 with few changes. The rule is effective 1/15/21. (85 FR 81698, 12/16/20) AILA Doc. No. 20121637
EOIR final rule amending the regulations on the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The rule is effective 1/15/21. (85 FR 81588, 12/16/20) AILA Doc. No. 20121130
CLINIC: he Executive Office for Immigration Review, or EOIR, has updated the webpage for the Recognition and Accreditation program to indicate that as of Dec. 14, 2020, EOIR will no longer accept previous versions of Forms EOIR-31 and EOIR-31A. The versions dated February 2020 will be required after that date.
Dan Kowalski reports from LexisNexis Immigration Community:
Lawsuits Challenge Massive “End of Asylum” Rule
1. Pangea Legal Services, et al. v. DHS et al. – “[T]he Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and Sidley Austin LLP filed suit today challenging the mammoth asylum rule in the Northern District of California on behalf of organizational plaintiffs Pangea Legal Services, Dolores Street Community Services, Inc., CLINIC, and CAIR Coalition. The complaint challenges all substantive and procedural merits related issues (it does not challenge the changes to credible fear).” – Blaine Bookey, Legal Director, Center for Gender & Refugee Studies, University of California Hastings College of the Law
2. Human Rights First v. Wolf – “Human Rights First, alongside counsel at Williams & Connolly, filed a lawsuit challenging the Trump administration’s sweeping new anti-refugee regulation, which will gut protections for those seeking asylum and make it virtually impossible for refugees to secure asylum in the United States.
The lawsuit, filed in the United States federal district court in Washington, D.C., asks the court to intervene and stop the government from enforcing the rule, which is scheduled to take effect on January 11, 2021.
“This rule seeks to end asylum in the United States as we know it. Over the past four years, this administration has employed an array of tools in the hope of dismantling the legal protections Congress provided for refugees and asylum seekers,” said Hardy Vieux, Human Rights First’s senior vice president, legal. “Human Rights First is heading back to federal court to dash that hope. And to affirm that Congress sought to protect people fleeing persecution, not demonize them incessantly, even in the waning days of an administration long consumed with denying protection to those most in need of it. This holiday season, and every season, we shall continue to exalt the rule of law.”
Human Rights First v. Wolf et. al. challenges the Department of Homeland Security and Department of Justice’s rule, rammed through in the waning days of the Trump administration. The complaint in Human Rights First v. Wolf et. al. can be found here.
Human Rights First, an organizational plaintiff in the suit, argues that the rule violates the Immigration and Nationality Act (INA), the Administrative Procedure Act, international law, and the United States Constitution. In its complaint, Human Rights First argues, “If allowed to stand, the rule will eviscerate the ability of noncitizens fleeing persecution to obtain asylum and related relief in the United States. The United States will instead send refugees back to countries where they face persecution, torture, and possible death—the very outcome Congress expressly designed the INA to avoid.”
The rule, which fundamentally rewrites United States asylum law, will illegally render the majority of asylum seekers ineligible for asylum while tilting every phase of the asylum process in favor of denial and deportation. The rule also upends the procedures for asylum adjudication, further limiting procedural protections for refugees seeking protection in the United States.
The United States government is attempting to make it impossible for our asylum-seeking clients to secure protection. Many of Human Rights First’s clients who have already been granted asylum would, under the rule, be denied protection. One Human Rights First asylum-seeking client stated, “[I]t really disappoints me to learn that the United States, a country [I] have looked up to as a beacon of freedom, is trying to put people like me in harm’s way. I fear for my safety.”
Through this lawsuit, Human Rights First is standing up for the rights of asylum seekers like our clients. Human Rights First’s comments this past summer opposing the draft rule are here.
Human Rights First provides pro bono legal representation for refugees seeking asylum in the United States, in partnership with volunteer lawyers at many of the nation’s leading law firms. Our refugee clients have fled persecution in Cameroon, China, Cuba, El Salvador, Guatemala, Eritrea, Honduras, Iraq, Nicaragua, Syria, Venezuela, and other countries where their lives and freedom are at risk.’
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Thanks to all the NDPA heroes involved in this effort!
Hey hey, ho ho, the EOIR Clown Show 🤡🤮 has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
Michelle Mendez @ CLINIC reports:
Court Grants Class Certification and Amends Preliminary Injunction in USCIS UC Asylum Jurisdiction Litigation
On December 21, 2020, the U.S. District Court in Greenbelt, Maryland granted Plaintiffs’ motion for class certification in J.O.P. v. DHS, No. 19:1944, a lawsuit challenging a May 31, 2019 USCIS policy limiting USCIS asylum jurisdiction over applicants previously determined to be “unaccompanied alien children.” The court certified the following class:
“All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child (“UAC”); and (2) who filed an asylum application that was pending with the United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits.”
Simultaneously, the court granted in part Plaintiffs’ motion to amend the nationwide preliminary injunction to prevent USCIS’s deference to EOIR jurisdictional determinations and to prevent ICE’s advocacy against USCIS initial jurisdiction. The court denied Plaintiffs’ request to amend the preliminary injunction to prevent USCIS from rejecting jurisdiction based on its expansion of the “affirmative act” exception from the 2013 Kim Memo, instead granting Plaintiffs 21 days to amend their complaint to encompass this claim. Please see CLINIC’s litigation webpage for the court’s December 21, 2020 memorandum opinion and order, as well as other case-related documents.
As amended, the preliminary injunction has the following components:
It enjoins USCIS from relying on the 2019 policy for any purpose. USCIS is barred from “rejecting jurisdiction over any asylum application filed by Plaintiffs and members of the class whose applications would have been accepted” under USCIS’s previous policy, articulated in the 2013 Kim Memo.
It enjoins USCIS from deferring to EOIR jurisdictional determinations. USCIS is barred from “deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by Plaintiffs and members of the class.”
It orders USCIS to retract adverse decisions already made. USCIS must “retract any adverse decision rendered on or after June 30, 2019 that is based in whole or in part on any of the actions enjoined and restrained” as described above.
It enjoins ICE from advocating against USCIS initial jurisdiction. Where a class member’s asylum application is pending before USCIS, ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.
Counsel for the Plaintiffs will continue to provide updates to practitioners as this litigation progresses. Advocates for clients: (1) who receive adverse decisions dated on or after June 30, 2019 that violate the terms of the amended preliminary injunction; or (2) in whose removal proceedings ICE advocates in violation of the amended preliminary injunction should contact Plaintiffs’ counsel Mary Tanagho Ross, mross@publiccounsel.org, and Kevin DeJong, KDeJong@goodwinlaw.com.
Thank you,
Michelle N. Mendez | she/her/ella/elle
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
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Thanks for another “great news” report, Michelle, my friend!
Finally, at long last, some Article III judges are “calling out” the highly unethical and glaringly unconstitutional “partnership” between ICE enforcement and EOIR to screw asylum seeking kids.
The EOIR White Nationalist agenda 🏴☠️ of limiting legitimate continuances and administrative closing to mindlessly, improperly, and inefficiently proceed in Immigration Court on matters that should be resolved through USCIS adjudication is not only thoroughly corrupt, but also totally counterproductive, as uncontrollably mounting EOIR backlogs and increasing Article III Court interventions have shown.
And, the completely unconstitutional and unethical call early on by corrupt former AG Jeff “Gonzo Apocalypto” Sessions 🤮 for “his wholly owned EOIR judges” to join their “ICE enforcement partners” in racist immigrant bashing initiatives should long ago have been a basis for the Article IIIs to declare this entire ungodly mess in the Immigration Courts to be unconstitutional under the 5th and 14th Amendments.
Thanks to you and other members of the NDPA, Michelle, for all you have done and continue to do to expose corruption, illegality, and wrongdoing in the regime’s sprawling, out of control, immigration kakistocracy! Now, we need you and other members of the NDPA like you on the Federal Bench to short circuit all the BS and get sane, legal, humane policies and “best interpretations and practices” in place “from the git go” and then enforce them on recalcitrant bureaucrats.
Racial Justice in America is, as it must be, one of the top Biden-Harris priorities! 🇺🇸 It can only be achieved if the White Nationalist mess at EOIR and ICE is cleaned up and replaced with experts committed to due process, fundamental fairness, and human rights in charge! There must be new, dynamic, and courageous leadership committed to controlling and reforming the actions of civil servants throughout government who furthered Stephen Miller’s vile racist agenda unlawfully and immorally targeting immigrants of color, their families, and their communities. “Injustice anywhere is a threat to justice everywhere” (MLK, Jr.).
Time for the NDPA ⚖️🗽🧑🏽⚖️👩⚖️ to replace the EOIR Clown Show🤡!
