"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The failure of Garland to remove an obvious, unqualified political hack — neither Immigration Court nor judicial experience — from his job at an agency clearly failing in its mission to provide anything approaching due process and fundamental fairness to migrants clearly has come to the attention of honest civil servants at EOIR who have struggled to keep the flames of justice alive over the past few years. And, as Chairman Durbin’s letter points out, this is by no means the only example of “hackism” and contempt for basic competence in civil service at Justice.
The problems were well known and well-documented long before Garland was sworn in. Not dealing with them swiftly, competently, and decisively is failed leadership on restoring due process, competence, and independence in the most obviously broken and dysfunctional part of the U.S. Justice System — the Immigration Courts.
Judge Garland’s failure to “step up” for justice @ Justice is literally killing American Justice!
Biden campaigned, and won, on a very different message.
He promised to “restore the soul of America,” which he argued included welcoming the stranger. It was a message he had promoted for decades. Upon taking office, he declared plans to roll back the Miller/Trump immigration agenda. Among them: raising the refugee admissions ceiling from 15,000 to 62,500.
Biden’s rationale for this policy was partly moral, partly practical. Unlike their predecessors, Biden and his immigration advisers recognized that creating more pathways for people to come to the United States legally would actually promote “law and order” and alleviate stress on the immigration system. In a February report to Congress, the State Department said one reason to “increase the overall refugee admissions number” was to “facilitate safe and orderly migration and access to international protection and avert a humanitarian crisis at the U.S. southern border.”
Then, inexplicably, Biden got cold feet.
He delayed signing the paperwork necessary to put his policy into effect, leaving hundreds of vetted refugees in limbo. White House spokespeople could not explain the holdup. Reports leaked that Biden worried about the “optics” of letting in more refugees amid a surge of migration at the southern border, even though he knew the two issues were unrelated.
In other words: Biden seemed to concede that Miller’s propaganda had worked and that the public might view all immigrants as a dangerous, undifferentiated horde of intruders the new administration was failing to contain.
Rather than fighting the confusion and fear Miller had sown, Biden caved. Friday’s White House announcement even invoked the same weaselly excuse Trump officials had used to justify their record-low cap — that it was necessitated by the (irrelevant) border surge.
On Twitter, Miller took a victory lap. He urged Biden to reduce refugee admissions to zero, which he declared would be the “most popular” thing to do.
But Biden and Miller both misread the politics. Biden’s announcement drew immediate, widespread backlash. Perhaps unsurprisingly: Despite Team Trump’s relentless smears of refugees and other immigrants, polls show the public has grown more pro-immigrant in recent years — with support reaching record highs.
Within hours of its initial announcement Friday, the White House backtracked, saying a higher refugee ceiling would be forthcoming. Officials refused to specify the new level and will not commit to the 62,500 Biden previously promised. Biden is leaving his options open — perhaps in case Miller’s political assessment turns out to be right.
It’s not clear why Biden has been so timid. As Biden himself has persuasively argued, admitting more refugees is in the country’s moral and national security interests. What’s more, he was elected on a popular mandate to do it. The White House must exorcise the ghost of Stephen Miller and deliver the agenda that our new, soul-restoring president promised.
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Catherine Rampell Opinion Columnist Washington Post
Thanks, Catherine, for continuing to speak out about the Biden Administration’s ill-informed approach to immigration, racial justice, and human rights — particularly refugee issues! You can read the rest of Catherine’s op-ed at the link.
No such “Victory Laps” for those who worked to get Biden, Harris, Garland, and Mayorkas their jobs!
As I’ve pointed out, Miller’s execs and “judges” remain in key positions at Garland’s EOIR as our Immigration Courts continue to fail to provide due process while institutionalizing racial injustice in America, just as Stephen Miller planned it.
Indeed, the racist, misogynist, xenophobic, “worst practices” precedents issued by Trump’s AGs remain in effect under Garland. And, the borders remain closed to most legal asylum seekers in violation of our Constitution, the statute, common sense, and simple human decency.
Equally discouraging is Judge Garland’s apparent indifference to the unparalleled opportunity given him to create a progressive Immigration Judiciary that would actually reflect the humane, due process ideals upon which Biden and Harris campaigned and won the election. Additionally, he could also bring diversity, expertise, and independent progressive thinking to a currently non-diverse judiciary that is often disconnected from both the laws they administer and the stakeholder communities most affected by their decisions, conduct, and attitudes.
I have said many times that Immigration Judges “teach from the bench” every day. The messages being sent and lessons being taught to many of those seeking justice and to their lawyers, basically the “heart and soul” of the next generation of our profession, do not reflect well on the Biden Administration or Judge Garland, nor will they be treated kindly by legal and social historians.
That’s a real shame, because once squandered, the ability to send positive messages about equal justice for all, due process, and respect for human dignity is not easily, if ever, regained!Every case is an opportunity to send a better message; every day the current mess remains in place in our Immigration Courts is a missed opportunity for Judge Garland.
So far, human rights and immigrants’ advocates groups are in a familiar position in a Dem Administration — locked out of the power structure, largely ignored, and treated with indifference bordering on contempt. Strange way to treat those who helped you gain power in the first place!
The good news: the brainpower and talent to force positive change out of incompetent, valueless, and intransigent bureaucracies is still out here in the NDPA. We’ll just have to continue to take the fight to the “powers that be” — in the legal, political, educational, and public opinion arenas until job gets done!
U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.
The justices heard arguments in an appeal by a married couple from El Salvador who were granted so-called Temporary Protected Status of a lower court ruling that barred their applications for permanent residency, also known as a green card, because of their unlawful entry.
The case could affect thousands of immigrants, many of whom have lived in the United States for years. President Joe Biden’s administration opposes the immigrants in the case. The dispute puts Biden, who has sought to reverse many of his Republican predecessor Donald Trump’s hardline immigration policies, at odds with immigration advocacy groups and some of his fellow Democrats. read more
A federal law called the Immigration and Nationality Act generally requires that people seeking to become permanent residents have been “inspected and admitted” into the United States. At issue in the case is whether a grant of Temporary Protected Status, which gives the recipient “lawful status,” satisfies those requirements.
. . . .
Liberal Justice Sonia Sotomayor told Justice Department lawyer Michael Huston, “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
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Read the full article at the link.
Garland helps Biden deliver “tough noogies, go pound sand, your lives don’t matter” message to immigrants like Jose and Sonia and their supporters who might have had the illusion that better times were on the horizon with Biden’s election! Progressives find that when push comes to shove, Biden & Garland can be just as cruel, dumb, and counterproductive as Trump & Miller!
Any hope that advocates might have had of help, sympathy, or understanding for their green-card-qualified clients with decades of residence and citizen family members goes down the tubes early in Dem Administration. Biden-Harris humane rhetoric and promises prove just another illusion for progressives in Administration’s first High Court test!
But for Justice Sotomayor, the thinness of the Justices’ understanding of both immigration law and the human issues involved was alarming, yet basically predictable. What do a bunch of highly privileged, above the fray, judges who have never personally dealt with the stupidity, arbitrariness, and trauma of our immigration system, and never represented clients in Immigration Court, care about shutting hard working American residents, people of color, like Jose and Sonia, out of our system and disenfranchising them for no particular reason. The worst, most racially discriminatory “interpretations” are “available” to those judges, so why not use them? For them, it’s a wooden academic exercise played out with human lives that don’t matter because they are “the other.” Except for Sotomayor, going for the best, most practical, humane interpretation evidently never crossed the minds of these Justices.
As Justice Sotomayor correctly said: “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
It’s not rocket science. Just common sense, humanity, and a clear understanding of the effect of legal interpretations on human lives. At the Supreme Court level, most decisions represent a “choice” rather than a “mandate.” That’s where having Justices who neither care to understand nor have to live with the consequences of their decisions really hurts people of color, immigrants, asylum seekers, and others not in the “power structure!” Better judges for a better America!
Meanwhile, advocates and progressives should never underestimate the ability of Dem Administrations to screw up immigration policy.
With thousands of well-qualified experts from the NDPA out there, is THIS really the best way for the Biden Administration to recruit immigration/human rights advisers and Immigration Judges? It might, however, reach a more diverse audience than gobbledygook laden, short turnaround, “posts” on “ USA Jobs” that have created today’s non-diverse, regressive, non-expert Immigration Judiciary and the bloated, incompetent bureaucracy in Falls Church! PHOTO: Thomas Hawk Creative Commons Amateur Night
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
. . . .
The president would do well to re-read his own campaign’s clear-eyed pronouncements on the subject. They correctly slammed Mr. Trump for decimating America’s decades-long leadership on refugees, whose admissions to this country were slashed by more than 75 percent in four years, to fewer than 12,000 in fiscal 2020. “We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values and firmly rejecting Trump’s nativist rhetoric and actions,” said the Biden campaign statement on refugees.
While the administration bumbles its way toward a policy, real lives are at stake. Some 33,000 refugees in Africa, the Mideast and elsewhere, all of them having passed rigorous screening by the Department of Homeland Security and other agencies over the course of months or years, are stuck in camps where they await flights to the United States. They see this country as a beacon, just as Mr. Biden insisted it is.
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
In any event, the president’s retreat on refugees is a danger sign. It looks like weakness; it smacks of spinelessness. Time will tell whether it is a short-term tactical maneuver or a more basic lack of resolve in the face of political headwinds. Here’s hoping it is the former.
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Read the complete editorial at the link.
Perhaps, Biden’s West Wing immigration advisers need a different “vision” of U.S. refugee policy. Perhaps, it’s time to end “Amateur Night at the Bijou” and bring in some human rights pros with the knowledge and guts to implement humane, effective, robust, legal refugee and asylum policies that serve humanity and advance our true national interests! PHOTO: independent.co.uk
Read the full op-ed, which actually recycles much that you’ve already heard on Courtside, at the link.
It “might be difficult to believe,” but you need look no further than the continuing worsening mess in Garland’s dysfunctional Immigration Courts, the failure to implement the rule of law at the border, the inability to get a robust refugee program up and running near the Northern Triangle, and the glaring lack of immigration/human rights expertise in the West Wing to see how unprepared “Team Biden” was to deal with inevitable, totally predictable, issues on which progressive Dem experts had been raising the alarm since before the election.
Incredibly, with hundreds, perhaps thousands, of progressive immigration/human rights/due process experts out here in the Dem camp, Biden has managed to surround himself with the wrong folks — those who can’t get the job done and prove it every day!
“Courage of their convictions” — that’s the problem here: Either his advisors don’t believe in the immigration, human rights, and justice agendas that Biden and Harris ran upon or they don’t have the guts to carry them out! Either way it’s a problem.
This is the same old, same old arrogant, uninformed “it’s only immigration not something important” attitude that has turned strength into weakness for Dems over the past decades! As Stephen Miller could testify, having the brainpower, expertise, courage, advocacy skills, energy, and persistence of the immigration/human rights community lined up in opposition isn’t conducive to implementing your agenda, whatever it might be.
Also, a pile of dead bodies beyond the border and continuing “Dred Scottification” of the other in dysfunctional, disgraceful “captive courts” might squeak by in the “present tense,” but will be an unflattering historical legacy that in the long run will outweigh all the achievements.
Turning supporters into critics, abandoning your values and promises, ginning up court suits opposing your out of control, due process destroying “courts,” and scofflaw asylum policies — some of them right out of the Stephen’s Miller playbook — seems like a bad way to proceed for any politician, let alone ones as experienced and skilled as Joe Biden & Kamala Harris.
Recognizing when the “honeymoon is over” and you need folks on your team who can actually turn campaign promises into real-world action is critical.
So far, the “Amateur Night @ the Bijou” approach to immigration, human rights, due process, and racial justice, predictably, isn’t getting the job done. The Biden Team needs to either turn to the experts, or face the real prospect of four years of continuing failure — along with the dead bodies, ruined human lives, and sense of continuing betrayal by gutless politicos that go with it.
Due Process Forever! Not “rocket science,” 🚀 but “mission impossible” without bringing in the pros!
Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place! PHOTO: Thomas Hawk Creative Commons
Fed up with “Garland’s Clown Show🤡” @ Justice?
Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!
Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!
Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!
Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!
Thankfully, he’s gone, but he left plenty of his friends @ EOIR. Judge Garland might be enjoying his “Continuing Clown Show.” But, the human beings whose rights and humanity are degraded daily and their long-suffering lawyers, not so much! (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permission
WASHINGTON — An immigration judge in the San Francisco court abruptly quit his post this week, issuing a scathing letter upon his retirement expressing frustration with the entire court system and its U.S. Justice Department management.
The letter does not acknowledge that Judge Nicholas Ford himself was also the subject of criticism from local attorneys representing immigrants, many of whom banded together to file a formal complaint against him alleging hostile and biased treatment of their clients with the Justice Department last year.
In his departure letter addressed to “wonderful” colleagues in the San Francisco immigration court, a copy of which was obtained by The Chronicle, Ford said he had “profound” frustration with Justice Department court managers. Ford said his supervisors were “a fearful community whose primary interest has never been the growth of those they oversee but rather their own continued employment.”
Ford, a former criminal court judge in Cook County, Ill., said he wanted to issue a “warning” to other immigration judges.
“I am an older judge and it is hard to understand how any court system can function like this,” Ford wrote. “These managers I have spoken of from the director to those in management below her will not support you. As we used to say in Chicago ‘they will throw you under the bus in a minute.’ Stay on your toes and view skeptically anything they tell you.”
Ford did not immediately respond to a voice mail seeking comment.
Ford was named to the immigration court bench in 2019 by then-Attorney General William Barr, after a controversial tenure in Chicago during which he was criticized for jailing a pregnant woman without bail for a nonviolent crime and had a high number of rulings overturned by appellate courts, according to a justice watchdog group.
In San Francisco’s immigration court, the criticism from private attorneys continued. In a complaint filed by more than a dozen law firms and legal organizations that represent immigrants, including the local chapter of the National Lawyers Guild, attorneys said Ford regularly acted in an “aggressive, unprofessional and demeaning” manner toward immigrants and displayed shocking in-court behavior.
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Tal Kopan Washington Reporter, SF Chronicle
Read the rest of Tal’s article at the link.
The problems are well-documented;
The need for reform is immediate;
The solutions are obvious;
The expert progressive talent to shake up this system and get it back on track to due process and fundamental fairness is readily available!
So, what’s missing: Progressive leadership, recognition, engagement, and action from Judge Garland!
The Biden Administration continues at their peril to demean, dismiss, and disrespect progressive immigration experts, their supporters, and the human lives at stake! It’s incredibly stupid! But, sadly, not unprecedented in Dem Administrations. That explains a lot about how we got to the current unacceptable situation.
Outside the West Wing, the legal community is aghast at Judge Garland’s failure to address the ongoing, deadly, debilitating, mess @ EOIR! And, although reform is achievable, it’s “mission impossible” with the folks currently on Garland’s staff and @ EOIR HQ.
Oh, and did I mention that Garland’s EOIR is sitting on a largely self-created 1.3 million (known) case backlog? Even if no new cases were put in the system, they wouldn’t get done with the existing cases by the end of Joe Biden’s first term in 2025! And, that’s without counting the cases that inevitably are completely “off docket” — lost in EOIR’s sea of technical and management incompetence.
Still, no sense of urgency and recognition whatsoever from Judge G! Why “study and muse” about what dozens, perhaps hundreds, of experts have already told you how to fix — some many times over?
Judge, those of us who who have been dealing with this disgraceful, dysfunctional system for years know what the problems are and how to fix them. What we need from you is intelligent, decisive, progressive, due-process-focused action, not more “dithering and studying!” You can’t and won’t get the job done with the current staff at DOJ and the clowns at Falls Church!
Heck, they just mindlessly “pissed off” every “stakeholder” in the country with yet another inane, “top-down,” “your views don’t count,” unworkable, detached from reality, “policy memo” and a series of disastrous (that’s one of the more “printable” adjectives I heard) “Town Halls!” What other “court system” in America spends time and resources on nonsense like this? The clowns might be Sessions-Barr-Miller holdovers. But, they are performing in YOUR NAME, Your Honor. And, let me give you a clue: It’s not going over well with the audience!
Judges Dana Marks, Amiena Khan, Noel Brennan, Janette Allen, Dorothy Harbeck, Mimi Tsankov, Samuel Cole, and other progressive jurists like them, with courage and executive ability, are ready to take over the Falls Church Tower, on an immediate temporary basis, start fixing the problems, and restoring due process, fundamental fairness, sound leadership, and best practices at our now-dysfunctional U.S. Immigration Courts. The NAIJ are the only folks at EOIR conducting competent professional training emphasizing due process and best practices. They are actually solving problems, but EOIR HQ is creating new ones!
The forces of due process and competence @ EOIR are just waiting for the call from Judge Garland. Will it come before it’s too late for him and for America?
“Through teamwork and innovation, become the world’s best tribunals guaranteeing fairness and due process for all.” Not, “rocket science,” 🚀 by a long shot. So, why does it continue to elude Judge Garland?
The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their
ALVARADO-HERRERA V. GARLAND 5
apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!
“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”
[Hats off to Stephen W. Spurgin!]
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Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized”BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful.
Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.
Roger Taney PHOTO: Matthew Brady Public Realm Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!
The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!
Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection.
Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear?
The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing.
Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.
It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health.
Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!
Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.
Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! PHOTO: Thomas Hawk Creative Commons
Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system.
It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”
Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!
As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.
Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridgefundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.
Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.
Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.
Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.
They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.
They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!
They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.
And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”
(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)
Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them!
Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!
Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.
They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.
Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.
Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.
Yesterday’s stunning“unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.
It’s not rocket science:
Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?
Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.
Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.
It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿♂️🏴☠️!
6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”
If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!
Thanks to Debi Sanders for being “on top” of this story!
Great news!!,
However, it does confirm the concerns many of us have about the Biden-Harris “immigration team” in the West Wing: “Amateur Night @ the Bijou.” Joe had better pick up the phone and call the “pros” — Eleanor Acer, Don Kerwin, and Catherine Rampell before bad advice sends him off another cliff!
Executive Office for Immigration Review (EOIR)
Board of Immigration Appeals
Falls Church, Virginia
Announcement #: AIJ-11092243-21-AS
Application Deadline: April 29, 2021
Appellate Immigration Judges are commissioned to serve in the capacity of an appellate immigration judge in formal, quasi-judicial proceedings to review the determinations of immigration judges in removal and related proceedings, and of certain officers of the DHS in visa petition proceedings and other matters. All Appellate Immigration Judges review the record on appeal, including briefs, exhibits, and transcripts, and hear oral argument when conducted. The Appellate Immigration Judge may concur or present dissenting opinions based on his/her view of any given case. The majority of the Appellate Immigration Judge’s duties fall into the general categories of removal proceedings, discretionary relief, claims of persecution, stays of removal, visa petitions, administrative fines, bond and detention, and immigration judge. Although the majority of the Appellate Immigration Judges’ time concerns hearing appeals, the incumbent is also qualified to conduct and may be assigned to conduct proceedings in the first instance as an immigration judge.
******************
The unusual nature of the latter announcement prompted the following responses.
From Dan Kowalski:
“Appellatte? Do you get a free latte every day as you walk in the door?”
And, from “Sir Jeffrey” Chase:
“Candidates with lactose intolerance need not apply.”
They might also have meant “Appellate Immigration Judge Lite.”
The DOJ must use the same proofreader as I do over here @ Courtside!
Here’s the Deal
If enough folks bore from within,
And the rest hurl bombarding din,
The Tower of Babel will fall,
And there will be equal justice for all!
—An original poem by Paul Wickham Schmidt
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) By Pieter Bruegel The Elder Public Domain
WASHINGTON—President Biden is set to sign an executive order keeping the refugee admissions cap for this year at a record-low 15,000, but eliminating Trump administration restrictions on which types of refugees qualify under that cap.
. . . .
**********************
Read Michelle’s full article at the link.
Administrations come, Administrations go. One constant: Human rights remain at the very bottom of the political “to do” list! It’s always a tough time to be a refugee. But, maybe even worse when you thought that, finally, there was a little hope on the horizon!
Sad times for some very vulnerable people and their tireless advocates.☠️😥
Dead Refugee Child Washes Ashore in Turkey — Every once and awhile, a dramatic picture makes us stop and think about the plight of refugees. BUT, NEVER FOR LONG! PHOTO: independent.co.uk
David Dixon / Humanity Adrift on the Sea of Life by John Cassidy / CC BY-SA 2.0 Creative Commons License
Heard on the street:
I just sat through an EOIR stakeholder meeting where the ACIJ (who had no immigration experience when he was hired), talked about how terrible the job is. Made it clear he had no power to make any change and just had to listen to HQ. He is resigning after one year. Then he tried to convince AILA members to apply for the open positions.
********
I support the idea of the private bar applying for these positions. One of the BS reasons that EOIR execs historically give for their one-sided hiring practices is that “nobody good ever applies from the private sector.” That’s always been a total crock! But, one way of crashing this intentionally “closed system” is by overwhelming it with applications from the “best and the brightest” from the NDPA. Sometimes, positive change comes from inside and below, particularly when “leadership” is dysfunctional.
“Bore from within,” as Dan Kowalski says! In a system as thoroughly rotten as this one,“boring” could be an effective means of forcing long-overdue change, even sanity, into a system that is an ongoing national disgrace and a blight on our nation’s humanity! (Other than that, I’m a big fan!)
WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.
But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.
The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.
. . . .
“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.
. . . .
“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”
****************
Read John’s complete article at the above link.
Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. SeeMatter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).
Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.
Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!
Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.
So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!
For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:
I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.
All this being said, the Supremes still mightpreserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:follow the law!See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).
So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
. . . .
********************
Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Georgetown LawProfessor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum ClinicProfessor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies PHOTO: GeorgetownLawProfessor Jaya Ramji-NogalesAssociate Dean for Academic Affairs I. Herman Stern Research Professor Temple Law PHOTO: Temple Law
WASHINGTON – On Thursday, April 15, 2021, three law professors from Georgetown Law and Temple University will discuss their new book, The End of Asylum, the Trump administration’s legacy on asylum policy, and where the Biden administration goes from here.
WHAT
Migration at the southern border and asylum are again front page news. The Biden administration claims that mounting numbers of children and families in immigration detention facilities and shelters is attributable to the Trump administration’s destruction of the asylum system. In their new book, The End of Asylum, three law professors analyze the nature, scope, and lawlessness of that destruction and the end of the promise that Congress made, in the Refugee Act of 1980, to welcome migrants who feared persecution abroad. They also propose steps that the Biden administration can take, both alone and in cooperation with Congress, to restore and improve a robust system of asylum in America.
The event is co-sponsored by Online and On Topic, Georgetown School of Foreign Service; Migration and Refugee Policy Initiative, Georgetown McCourt School of Public Policy; Georgetown University’s Institute for the Study of International Migration; and Temple University Beasley School of Law.
WHO
Philip G. Schrag
Georgetown Law Delaney Family Professor of Public Interest Law; Co-Director, Center for Applied Legal Studies (Georgetown Law’s asylum clinic)
Andrew I. Schoenholtz
Gerogetown Law Professor from Practice; Director of the Human Rights Institute and Co-Director of Center for Applied Legal Studies at Georgetown Law
Jaya Ramji-Nogales
Associate Dean for Academic Affairs and the I. Herman Stern Research Professor at Temple University’s Beasley School of Law
Al Bertrand (moderator)
Director of Georgetown University Press
Georgetown University Law Center is a global leader in legal education based in the heart of the U.S. capital. As the nation’s largest law school, Georgetown Law offers students an unmatched breadth and depth of academic opportunities taught by a world-class faculty of celebrated theorists and leading legal practitioners. Second to none in experiential education, the Law Center’s numerous clinics are deeply woven into the Washington, D.C., landscape. Close to 20 centers and institutes forge cutting-edge research and policy resources across fields including health, the environment, human rights, technology, national security and international economics. Georgetown Law equips students to succeed in a rapidly evolving legal environment and to make a profound difference in the world, guided by the school’s motto, “Law is but the means, justice is the end.”
Only one major problem: Phil, Andy, Jaya, and others like them should be running EOIR & the BIA by now, putting their “practical scholarship” and organizational skills into action to reform this disgracefully dysfunctional, life and democracy-threatening system and to restore due process, professional competence, and the rule of law to the U.S. Immigration Courts where it has disappeared!
As I’ve said many time before: It’s not rocket science, 🚀 but it has (quite avoidably) become “mission impossible” with the indolent, tone-deaf, approach that Judge Garland and his team have exhibited at the DOJ to date. Par for the course in Dem Administrations. But, bad news for those of us who believe in due process, social justice, and equal justice for all persons in America. (Hey, isn’t that right out of the Constitution?)
It’s like nobody in the Biden Adminhistration ever toured the “St. Louis Exhibit” or the exhibits in the “German Judiciary” sections of the Holocaust Museum. Perhaps Judge Garland and others need a “VIP Tour,” after hours!
🇺🇸⚖️🗽Due Process Forever!
DISCLAIMER: My views as expressed above are solely my own and do not represent the position of any of the panelists, Georgetown Law, or any person or entity, living or dead, of any importance whatsoever!
Asked repeatedly (by me and others) what accounts for Biden’s delay, White House officials have struggled to answer. Sometimes they try to blame Trump, complaining that his administration left a system in “disrepair” that requires “rebuilding.” No doubt, Trump wrought a lot of damage upon the immigration system, and more resources would be necessary to reach the much higher refugee admissions that Biden claims he wants for the next fiscal year (125,000); currently, there aren’t enough people sufficiently far along in the refugee-screening pipeline to meet that goal.
But none of this explains why the few thousand already fully vetted and deemed “travel-ready” by the State Department as of early March have not been allowed in. The only thing preventing their entry is Biden — who refuses to do the right thing and sign a simple document.
The only explanation I can fathom for what’s going on is that the White House fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border. “Refugees” and “asylum seekers” might sound synonymous, but the groups are subject to different sets of laws, screening procedures and executive authorities. One key difference is that refugees apply from abroad and are screened for eligibility before they arrive; asylum seekers apply from within our borders or at a port of entry.
In other words, refugees are doing precisely what both Biden and Republicans urge those fleeing persecution and violence to do: staying abroad, and not crossing into the United States unlawfully; proving to U.S. and international officials that their lives are indeed in danger, and that they meet the legal requirements for resettlement; enduring extensive screening to prove they don’t threaten national security or public health; and then patiently waiting their turn for admission, a process that usually takes years.
And how is Biden rewarding them? The same way Trump did: by slamming the door.
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Read Catherine’s complete article at the link.
[The Biden Administration] fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border.
Wow. In 50 years of “hanging around” the migration/human rights/political scene in D.C., I’ve heard plenty of insanely lame, cowardly excuses for not doing the right thing. But, this is “Top Five” material!
I have ideas on how to solve this problem, quickly:
Invest the “big bucks” to hire Catherine as the Biden Administration’s “Head Immigration Flackie.” She can explain the situation in terms that the American people will understand. That’s what Catherine does! Brings clarity, humanity, and common sense to complicated situations that flummox politicos and press offices.
Alternatively, get a “Loaner Law Student” from the Georgetown Law CALS Asylum Clinic. In two decades of working with CALS students in court, the classroom, and elsewhere, I’ve never run into one who doesn’t have a deeper understanding of, and better ability to explain, refugee and asylum policy than any of the “inept talking heads” the Biden Administration has thrown into the fray so far.
Georgetown Law
Another alternative: Hire Don Kerwin, currently the Executive Director of the Center for Migration Studies (“CMS”) to fix and explain the Administration’s (so far) mind-boggling failure to re-establish our refugee and asylum programs — actually both legal and moral obligations (although you wouldn’t know that by listening to the mindless negative natter from politicos of both parties). Don probably knows more than any living person about the amazing, quantifiable, benefits that refugees and asylees bring to our nation and is an expert at puncturing all of the White Nationalist myths and fear-mongering that have driven these essential programs into complete failure over the past few years.
Donald M. Kerwin Executive Director Center for Migration Studies
It’s also worthy of note that because of the Trump Administration’s “malicious incompetence” combined with the Biden Administration’s “willful incompetence,” against the background of an Attorney General unwilling to speak out and stand up for the legal rights of refugees, asylum seekers, and people of color in general, (just what is the purpose of an Attorney General who won’t stand up for the people — some of us thought, erroneously I guess, that we had voted that “model” out of office last November) we have no refugee program in Latin America and we have illegally closed ports of entry to legal asylum seekers.
So there is no regular system for asylum seekers to apply in an orderly fashion in accordance with our international, statutory, and Constitutional (not to mention moral) obligations. In violation of the mandatory provisions of Article 33 of the U.N. Convention, incorporated by the Refugee Act of 1980, every day we return legitimate refugees to danger, torture, or death without any inquiry at all. The “law violators” here aren’t the desperate folks vainly, yet gamely, trying to apply for asylum under our lawless system. It’s us!
Maybe, that’s why the Biden Administration doesn’t want anyone to understand what they really are doing and how wrong-headed it is!🤮👎🏴☠️
