"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.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers”. — “The reality of racial justice and the rule of law for people of color at our Southern Border is rather sobering, as the Biden Administration fails to usher in needed progressive reforms. How many more people will die because this Administration won’t follow the Constitution, The Refugee Act, and our international obligations? We’ll never achieve racial justice so long as dehumanization of people of color is our official policy, carried out by a broken and dysfunctional DOJ!” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Vice President Kamala D. Harris Vice President of the United States — “Will she be able to get beyond the mistakes of the past and put rationality, humanity, and the rule of law in place at the Southern Border. So far, the results of her leadership are NOT encouraging for those who believe in progressive, humanitarian, legal policies.” (Official Senate Photo)
James Fredrick is a multimedia journalist based in Mexico City and covers migration, crime, politics and sports.
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Obama tried deterring migrants with his characteristic lawyerly tact. Trump did it with his cruel, petty impulsiveness. Biden is doing it with his folksy toughness. The styles are different, but the results of immigration deterrence will always be the same.
We’re trapped in this cycle because the U.S. government refuses to listen to migrants. Having met hundreds of migrants during my years reporting in Mexico and Central America, it’s obvious why deterrence doesn’t work: What’s at home is worse than anything the United States could threaten. Most migrants don’t want to leave home. But they do because violent death or crippling destitution is all that’s left.
Failing to actually come up with a solution, we of the “greatest country on Earth” become tremendously feeble and defensive at the arrival of a few thousand immigrant children. But there is another way.
We must treat immigration as a civil and humanitarian issue, not a criminal one. Criminalizing people fleeing violence, persecution, climate change or economic hardship exacerbates these problems. So decriminalize border crossings and rebuild border facilities as welcome centers, not jails. Border Patrol and Customs and Border Protection agents at the border should be social workers, not cops.
If Trump’s family separation atrocity showed us anything, it’s that millions of Americans want to help immigrants in need. The United States should cooperate more with these groups. There are already large networks around the country that can provide housing, food, legal services, education and medical services to immigrants. Why rely on expensive armed border agents instead of willing, motivated humanitarian groups?
Immigration laws should also address the challenges of the 21st century. In addition to decriminalizing border crossings, our immigration laws rely on outdated quotas and corrupt, abusive worker programs. Asylum law is a relic of the Cold War and doesn’t reflect the world today.
Finally, Washington should stop making the problems worse with bad foreign policy. Despite numerous abuses, scandals and criminal allegations involving Honduran President Juan Orlando Hernández, the Biden administration refuses to denounce him, though many think he is responsible for the conditions Hondurans are fleeing. In fact, Biden administration officials are working with Hernández to try to prevent Hondurans from fleeing. He’s just one example in a long history of U.S. meddling to prop up corrupt, abusive, U.S.-friendly regimes. No amount of U.S. dollars in aid can make up for bad foreign policy.
President Biden can’t stop the crisis today. After all, he helped create it. But he can make sure this is the last “border crisis” we face.
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Read the complete op-ed at the link.
Ah, “mindlessly” — one of my favorite terms, usually applied these days to Garland and his inept team at DOJ! Actually, Frederick isn’t the only one to figure this out!
The problem remains, as I have stated over and over, the toxic failure of the Biden Administration to bring progressive experts in immigration, human rights, civil rights, and “applied due process” into Government and empower them to solve the problems! It’s bizarrely compounded by the disgraceful unwillingnessof those few in the Biden Administration, like Vanita Gupta and Kristen Clarke, who actually know better, to speak up for racial justice, social justice, human rights, and human dignity at the DOJ!
Unless VP Harris wakes up, convinces her boss, and brings in the progressive experts, she’s headed for the abyss, taking thousands of vulnerable refugees and, perhaps, American democracy down with her!
Refusal to listen: to migrants, their representatives, experts, our “better angels,” and common sense! The same problems, over and over, Administration after Administration, decade after decade! The same “built to fail” policies repeated!
The truth is in front of the Biden Administration! But, like Garland, Mayorkas, and others leading the way over the cliff, Biden and Harris can’t see it! They appear to have “tuned out” those desperately trying to keep them from plunging over the precipice! So tragic, so unnecessary, so threatening to American democracy and the future of humanity!
Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!” PHOTO: UNHCR website
Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)Natalie Gonnella-Platts Director, Women’s Initiative George W. Bush Institute PHOTO: Bush InstituteJenny Villatoro Associate, George W. Bush Institute-SMU Economic Growth Initiative PHOTO: George W. Bush Institute
By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:
When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.
But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.
Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.
Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.
Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.
They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.
Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.
Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.
COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.
Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.
According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.
Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.
Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.
Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.
How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.
Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.
Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.
Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.
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“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.
What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”
With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system!
Debi Sanders ESQ “Warrior Queen” of the NDPA PHOTO: law.uva.edu
Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.
For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?
Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.
030114-O-0000D-001.President George W. Bush. Photo by Eric Draper, White House. “Why is this guy willing to speak up for immigrants’ rights . . . .
Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences.
“ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland Official White House Photo Public Realm
What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!”
James “Jim” Crow Symbol of American Racism, still right at home at Garland’s EOIR!“She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?
Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here! Vice President of the United States (Official Senate Photo)
I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!
Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!
There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders!
By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!
🇺🇸🗽⚖️🧑🏽⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”
However, despite advice from public health experts and condemnation by UNHCR, expulsions under Title 42 continue and the human cost has been devastating. Though refugees come from countries all over the world, the Department of Homeland Security expels them to Mexico, just on the other side of the border.
Reports by Human Rights First document the terrifying realities they face once there: kidnappings, violence, sexual assault, extortion and even murder in border towns where criminal gangs and cartels prey on recently expelled children and families. Just this spring, a 4-year-old Honduran boy and his asylum-seeking mother were kidnapped in Nuevo Laredo immediately after they were expelled under Title 42.
Expulsions don’t just impact migrants from Mexico and Central America. Despite the recent designation of temporary protected status for Haitian migrants within the United States, the Biden administration has sent plane after plane of asylum-seeking families back to Haiti, with some Haitians being expelled to Mexico. The UndocuBlack Network and the Haitian Bridge Alliance, for example, document a Haitian woman expelled to Mexico with her three-day-old baby, where she will face extreme anti-Black discrimination and be at risk of violence and homelessness.
Public health has often been used as a pretext for restrictionist immigration policies. Beginning as early as 1793, when Haitians were blamed for bringing yellow fever to Philadelphia, nativism and xenophobia have long merged with concerns about public health to exclude immigrants and refugees. These concerns were not justified by science then, and they certainly are not justified now.
. . . .
Lindsay M. Harris (@Prof_LMHarris) is associate professor and director of the Immigration and Human Rights Clinic at the University of the District of Columbia’s Law School. Sarah Sherman-Stokes (@sshermanstokes) is clinical associate professor and associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.
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Read the rest of the USA Today op-ed at the link!
Thanks, my friends, for speaking out about the continuing outrages perpetrated by the Biden Administration at our Southern Border. So many, many “practical experts” out here in the “real world,” like Lindsay and Sarah, who would be heads and shoulders above current immigration “leadership” at DHS, DOJ, and EOIR and who would bring “real, qualified, expert judging” to the BIA and the Immigration Courts.
The Biden Administration’s failure to actively recruit, attract, and promptly bring on board the “best and the brightest” that American law has to offer for these critical jobs (which do NOT require Senate confirmation) is a disgrace! Betcha Stephen Miller could tell them how to do it! But, curiously, the Biden Immigration Team seems to think that alienating the best progressive minds in the business, the folks who helped them get elected and can fix their immigration problems, is smart politics and great public policy! Go figure!
Suspending the rule of law and international treaty obligations is never “OK” and it’s not something to be “studied.” “Gee whiz, should we comply with the law or continue to violate it; should we continue to send people to possible kidnapping, rape, torture, extortion, and/or death with no process or should we give them fair hearings; should we continue unqualified Trump hacks in key positions and keep defending illegal policies or should we hire qualified experts from the NDPA to restore and promote due process?” These are the “questions” that folks like Garland, Mayorkas, and their “spear carriers” are being paid to “study” while innocent humans are daily being abused and dying in the “real world” that these Biden Cabinet officers appear to have absented themselves from?Gimme a break!
We need an end to the deadly nonsense at DHS, DOJ, and EOIR NOW! Keep the outrage, the op-eds, the law suits, and the exposure and documenting of Mayorkas’s and Garland’s illegal, immoral, and incompetent actions coming until we get change and our Government delivers on the Constitutionally-required promise of due process, equal protection, and racial justice for all persons!
🇺🇸⚖️🗽Due Process Forever! The Garland/Mayorkas “Miller Lite Nonsense” at the border, never!
This truck is NOT delivering due process, best practices, and racial justice to our dysfunctional immigration and asylum systems. “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color
Lee Gelernt Deputy Director ACLU Immigrants’ Rights Program PHOTO: ACLUElliott Spagat Reporter Associated PressJulie Watson Reporter, AP PHOTO: Pulitzer website
Elliot Spagot and Julie Watson report for AP:
SAN DIEGO (AP) — The Biden administration has quietly tasked six humanitarian groups with recommending which migrants should be allowed to stay in the U.S. instead of being rapidly expelled from the country under federal pandemic-related powers that block people from seeking asylum.
The groups will determine who is most vulnerable in Mexico, and their criteria has not been made public. It comes as large numbers of people are crossing the southern border and as the government faces intensifying pressure to lift the public health powers instituted by former President Donald Trump and kept in place by President Joe Biden during the coronavirus pandemic.
Several members of the consortium spoke to The Associated Press about the criteria and provided details of the system that have not been previously reported. The government is aiming to admit to the country up to 250 asylum-seekers a day who are referred by the groups and is agreeing to that system only until July 31. By then, the consortium hopes the Biden administration will have lifted the public health rules, though the government has not committed to that.
So far, a total of nearly 800 asylum-seekers have been let in since May 3, and members of the consortium say there is already more demand than they can meet.
The groups have not been publicly identified except for the International Rescue Committee, a global relief organization. The others are London-based Save the Children; two U.S.-based organizations, HIAS and Kids in Need of Defense; and two Mexico-based organizations, Asylum Access and the Institute for Women in Migration, according to two people with direct knowledge who spoke on condition of anonymity because the information was not intended for public release.
Asylum Access, which provides services to people seeing asylum in Mexico, characterized its role as minimal.
The effort started in El Paso, Texas, and is expanding to Nogales, Arizona.
A similar but separate mechanism led by the American Civil Liberties Union began in late March and allows 35 families a day into the United States at places along the border. It has no end date.
The twin tracks are described by participating organizations as an imperfect transition from so-called Title 42 authority, named for a section of an obscure 1944 public health law that Trump used in March 2020 to effectively end asylum at the Mexican border. With COVID-19 vaccination rates rising, Biden is finding it increasingly difficult to justify the expulsions on public health grounds and faces demands to end it from the U.N. refugee agency and members of his own party and administration.
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Read the full article at the link.
Well, I’ll give them this. “Farming out” the asylum system to these NGO experts is better than the Trump approach. The Trump regime “outsourced” the American asylum system to Mexico, El Salvador, Honduras, and Guatemala.
The common denominators among those countries is that the are all notorious for human rights abuses, corrupt government, dysfunctional legal systems, and lack of any semblance of a fair, functioning asylum adjudication system. Additionally, all are major senders of asylum seekers to America.
But, the Biden Administration’s “under the counter” approach is still fundamentally wrong! It’s yet another “haste makes waste gimmick” that lacks transparency, clear standards, accountability, and most of all, operates outside of any legal framework!
That’s a recipe for arbitrariness, abuse, and unfairness. Even if the system were to produce decent results, the lack of transparency robs it of credibility. It’s therefore likely to be attacked by both advocates and restrictionists while being panned in the press — a self-created “worst case” scenario of the type Dem Administrations seem to specialize in when it comes to immigration and human rights!
The solution here is to do what many of us have been recommending since the day the election results became final. That is, bring in outside experts to USCIS to lead and revitalize the Asylum Officer screening program and bring in real judges, largely from the outside, — progressive practical experts in asylum law committed to human rights and due process — to EOIR to establish legitimate precedents and insure fair, humane, and uniform treatment of asylum seekers.
It’s possible, indeed probable, that the U.S. representatives of some of the NGOs involved would be among the best experts to do this — leading human rights authoritieslike Mark Hatfield at HIAS, Wendy Young at KIND, and Wendy Wylegala, also of KIND are obvious choices.
So, put them and other practical experts like Professor Karen Musalo (Center for Gender & Refugee Studies), Eleanor Acer (Human Rights First), Professor Stephen Legomsky (former USCIS Chief Counsel), Associate Dean Jaya Ramji Nogales (Temple Law), Judge Ilyce Shugall (Round Table), Dean Kevin Johnson (UC Davis), Michelle Mendez (CLINIC), Professor Lenni Benson (Safe Passage Project), Professor Ingrid Eagly (UCLA Law), Laura Lynch (NILC), Professor Stephen Yale Loehr (Cornell Law), Jason Dzubow (The Asylumist), Professor Debi Anker (Harvard Law), Professor Michele Pistone (VIISTA/Villanova Law), and others like them on the payroll at USCIS and EOIR and let them fix the asylum system!
Experts like this could, if properly empowered, in relatively short order, establish a system that is legal, constitutional, fair, generous, humane, practical, efficient, and that complies with all of our international obligations. In other words, a “model system” that would serve the best interests of humanity and our nation!
Bringing in the experts seems like an outstanding, “no brainer” alternative to the godawful, dysfunctional, disgraceful mess that the Trump kakistocracy left at USCIS and EOIR, much of which continues to ramble on, further off the rails all the time, under Mayorkas and Garland. The Biden Administration can’t, and won’t, get the job done on asylum and racial justice without radical, yet logical and badly needed, personnel and leadership changes at USCIS and EOIR!
“This case presents the question whether the departure bar limits an IJ’s ability to reopen immigration proceedings sua sponte. We have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D), and we conclude that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ’s discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, we grant the petition for review.”
Petition for Review of a Decision of the Board of Immigration Appeals _______________________
(June 1, 2021)
Petitioner,
Respondent.
Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit Judges.
WILLIAM PRYOR, Chief Judge:
Kelly Sanchez-Castro, a native of El Salvador, petitions for our review after
she unsuccessfully sought relief from removal because a gang targeted her family based on the assumption that her father’s work in the United States made it
USCA11 Case: 19-15091 Date Filed: 06/01/2021 Page: 2 of 15
wealthy. The Board of Immigration Appeals denied her applications for asylum, withholding of removal, and protection under the Convention Against Torture, and substantial evidence supports its decision. Sanchez-Castro is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. And she is ineligible for protection under the Convention Against Torture because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. We deny Sanchez-Castro’s petition for review.
. . . .
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“Tough noogies, Baby! Chief Judge Pryor and his all-male, all White ivory tower panel don’t see any nexus here! So, suffer and die, Baby, suffer and die!” “She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
To reach its incorrect and life-threatening endorsement of the BIA’s misconstruction of the nexus requirements (throwing out the normal rules of causation to achieve an anti-asylum-seeker result) the 11th Circuit panel eschewed a much better and more intellectually honest approach by the 4th Circuit in Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
Notwithstanding Chief Judge Pryor’s cavalier attitude about sending Ms. Castro-Sanchez back to possible death or dismemberment at the hands of gangs who operate with relative impunity in El Salvador, these are not “academic exercises.” They are serious life or death matters involving bad law produced by a (non) “court” (the BIA) controlled by a law enforcement official (the Attorney General) that is not comprised of judges who are recognized experts in asylum and immigration laws and has over recent history construed the law against immigrants at almost every opportunity!
These two cases show the difference between this panel of the 9th Circuit that takes judicial review and what’s at stake seriously and the “indifferent to humanity” rubber-stamp approach applied by the 11th Circuit panel. We need better judges, progressives with expertise in due process, human rights, immigration, and racial justice at every level of our Federal Judiciary — from the Immigration Courts to the Supremes! Circuits like the 5th and the 11th with long and disgraceful records of relative indifference to the rights and lives of migrants, mostly those of color, are long, long overdue for infusion of better qualified progressive “practical scholars” and advocates.
That makes the progressive outrage over Garland’s totally inappropriate “giveaway” of Immigration Judge positions he controls to Barr-selected, non progressive, candidates who applied under a flawed recruitment process designed to discourage diversity and exclude the best qualified expert candidates from the private sector, along with his failure to address skewed anti-asylum-seeker precedents like L-E-A- and A-B– all the more understandable! It also makes changes that will put more expert, progressive, due-process oriented judges who have experience representing individuals in court all the more urgent!
Cases like this wouldn’t get into the “Article III Life or Death Lottery” if Garland had dealt promptly and properly with L-E-A-, A-B-, and other Trump-era, anti-asylum, anti-migrant, anti-due-process, misogynist precedents!
Attorney General Merrick B. Garland — His failure to institute long-overdue and obvious progressive due process reforms @ EOIR is costing Kelly Castro-Sanchez and other vulnerable refugee women their lives while enraging their advocates! It’s not an “academic exercise,” as Garland seems to think. There are real life consequences and irreparable harm from his failure to take due process, human rights, and racial justice seriously @ EOIR! Official White House Photo Public Realm
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Tell the Biden Administration that we need progressives, not more “regressives,” on the Federal Bench, starting with the Immigration Courts! End abusive judging by a non-diverse Federal Judiciary!
Under Biden, crossing the U.S. border has become like a lottery. Timing is everything.
“Sometimes I ask myself why they [let me stay] and they deported others,” said a 20-year-old Nicaraguan man. “And I give thanks to God.”
by Julia Ainsley, Didi Martinez and Kenzi Abou-Sabe | NBC NEWS
Julia Edwards Ainsley Investigative Reporter, NBC News
. . . .
“We will see more deaths. And that’s the sad truth for us,” Copp said.
Immigration advocates also believe uncertainty surrounding the Title 42 policy is driving many migrants to take more dangerous routes to avoid being apprehended all together.
“The Biden administration’s retention of Title 42 and refusal to open the legal ports of entry is having the perverse effect of forcing desperate asylum seekers fleeing danger to cross between the ports, which is to nobody’s benefit,” said Lee Gelernt, deputy director of the ACLU’s immigrants’ rights project and a lead plaintiffs’ lawyer in a lawsuit challenging the use of Title 42.
For now, the Biden administration has made no promises of end dates for the Title 42 policy, even as Covid-19 restrictions ease across the country. Department of Homeland Secretary Alejandro Mayorkas has said that the policy is in place to protect both migrants, who would need to be kept temporarily in congregate care settings if allowed in, and agents.
Gelernt said the policy of only guaranteeing unaccompanied children entry forces some families to self-separate in order to give their children the best chance of seeking asylum in the U.S.
. . . .
**************
Read the full article at the link. A “lottery” for human lives! What’s next for the Biden/Harris Administration, “Hunger Games V?”
Mayorkas’s claim is pure BS! 💩 This inane, illegal, immoral, and unnecessary policy “protects” nobody except smugglers and traffickers! And, the idea that at this point, it is required by COVID is absurd on its face!
By contrast, Lee Gelernt of ACLU, a long-time inspirational leader of the NDPA, speaks truth! The Southern Border can’t be regulated without repealing the illegal Title 42 restrictions and immediately re-establishing the rule of law. That includes timely professional screening by expert Asylum Officers working for USCIS; a fair, robust, generous, practical, due-process-oriented application of asylum and other protection laws by a radically reformed EOIR utilizing the services of real Immigration Judges who are experts in asylum law; and close cooperation and support from NGOs, local governments, religious, and private bar groups to provide universal representation to asylum seekers and to lead and implement resettlement efforts throughout the U.S.
Lee Gelernt Deputy Director ACLU Immigrants’ Rights Program PHOTO: ACLU
The expertise, practical problem solving ability, and resources are available. Most of it is in the private/NGO/academic sectors right now. These are the leaders and experts the Biden Administration should have brought into Government “right off the bat” to solve the problem, but has tragically failed to do so. Not like they were’t told well in advance!
It won’t happen with the bureaucrats and “tunnel visioners” the Biden Administration is relying upon — folks committed to repeating the failures of the past who lack the experience, vision, courage, independence, and creative problem solving ability necessary to lead the way to a better future. Using the law (or lack thereof) as a “deterrent” and issuing threats won’t stop desperate refugees from coming. As we can see, it only “turns them off” on using our (unavailable and now largely defunct) legal system and drives them first into the hands of traffickers and smugglers and eventually into our underground “extralegal” population.
Human migration is eons older than our republic! It won’t be eradicated or turned off and on by the utterances and actions of politicos and law enforcement officials. It requires a thoughtful, informed approach that has been largely absent from our government for decades, which is why the failures and resulting human trauma, wasted resources, and squandered human opportunities persist Administration after Administration, regardless of party and rhetoric.
Jeff “Gonzo Apocalypto” Sessions had no problem running all over the rule of law when he wanted to implement his illegal, White Nationalist, misogynist agenda and degrade asylum seekers with dehumanization and “Dred Scottification” of the other, primarily women, children, and individuals of color.
Unfortunately, by contrast, the Biden Administration, is too weak-kneed to stand up for the rule of law and human dignity!
But, folks like Julia Ainsley and her team are making a permanent public record. As in the Trump Administration, the Biden Administration doesn’t appear to recognize the concept of accountability in Government, particularly as applied to itself. But, I doubt history will be as kind and as accommodating to those, regardless of political affiliation, carrying out these illegal, irrational, inhumane, and “designed to fail” policies.
Perhaps, the “dead can’t speak!” ☠️⚰️ But, others certainly can and will speak for them and see that the abusers of humanity are held accountable.
Is this really the ‘preferred method’ for handling an asylum claim by a female Cuban refugee doctor? Judge Garland seems to think so!” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
In April 2020, COVID-19 reached the U.S. Immigration and Customs Enforcement (ICE) Detention Center in Eloy, Arizona. Dr. Merlys Rodriguez Hernandez, who had been detained there for six months, said she knew it would spread quickly.
Rodriguez Hernandez is originally from Cuba, where she and her husband, Lazaro, practiced medicine before they were forced to flee government persecution, she said. When they reached the U.S. border, they applied for asylum. Both were detained, in separate facilities, Merlys said. After eight months, Lazaro was granted protection from having to return to Cuba. Merlys’ petition, based on identical circumstances, was tried in a different immigration court – and denied, she said.
Cornell Law School’s Asylum Clinic took her case, under the direction of Stephen Yale-Loehr, professor of immigration law practice, and Ian M. Kysel, visiting assistant clinical professor of law. Law students Conor Bednarski, J.D. ’21, and Michelle Zhu, J.D. ’21, litigated an appeal to the U.S. Board of Immigration Appeals.
Conor Bednarski
Michelle Zhu
Meanwhile, Rodriguez Hernandez was trapped in a detention system raging with COVID-19, she said. She fell ill with the virus in May 2020 and spent 40 days in isolation, suffering from joint pain, body aches and severe diarrhea and confined to a cell she was expected to sanitize herself, she said. Tara Pilato, co-executive director emerita of the Weill Cornell Center for Human Rights at Weill Cornell Medicine, who consulted on the case, observed that “the conditions Merlys reported were not only inhumane, but against all best practices for caring for patients with COVID-19.”
Kayleigh Yerdon
“Watching this preventable tragedy unfold week after week, as we were told to shelter in place, was the hardest part of working on this case,” Bednarski said.
As the pandemic spread, Bednarski and Zhu tried to secure Rodriguez Hernandez’s release, and then supported a collaboration with pro bono counsel who filed a habeas corpus writ in federal court.
Kayleigh Yerdon, J.D. ’21, took the lead on the case during the fall 2020 term. With Spanish interpretation assistance from Cornell doctor of juridical science student Ana Ruival, LLM ’19, Yerdon won her client’s release on bond. Rodriguez Hernandez was released in October 2020, after 13 months in detention, Yerdon said.
“As a law student, being able to step into court for the first time via teleconference and win, knowing my client would walk free as a result, was just an incredible experience,” Yerdon said. She also took on Lazaro’s case, successfully litigating a motion to reopen his case, and eventually securing him asylum, she said. Yerdon was recently honored with the Law School’s Freeman Award for Civil-Human Rights, in part in recognition for her clinical work.
Meryls’ case shows that some of the most harmful flaws in the immigration system can be addressed by applying basic rights principles, Kysel said.
Rodriguez Hernandez and her husband are now living in Kentucky as they work to appeal the denial of her request for asylum. She said she hopes to become an advocate for immigrants who remain detained during the pandemic. Meanwhile, the legal team has continued its efforts to engage in other advocacy and to amplify the impact of their legal work on the doctor’s case, Kysel and Yale-Loehr said.
Recently, Rodriguez Hernandez told her story in a first-person essay in the New England Journal of Medicine, with the support of her Cornell Law clinic team and a team from the Weill Cornell Center for Human Rights, led by Pilato and Dr. Gunisha Kaur, assistant professor of anesthesiology.
“As one of our colleagues in the medical field, Merlys’ harrowing experience deserved attention from a medical-legal perspective,” said Pilato and Kaur. “The inhumane conditions in ICE detention centers have triggered some of the worst COVID-19 outbreaks in the country.”
In the piece, Rodriguez Hernandez wrote, “It is a bitter irony that while the first waves of the pandemic ravaged the U.S., I remained in a detention system when I could have made a difference to patients in a health care system in dire need of providers.”
Owen Lubozynski is a freelance writer for Cornell Law School.
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Thanks to my good friend and renowned Immigration “Practical Scholar/Expert” Professor Stephen Yale-Loehr @ Cornell Law for alerting me to this item. And, many many congrats to these amazing students and members of the NDPA!😎👍
Professor Stephen Yale-Loehr Cornell Law
Note that in the dangerous and defective “court system” being run by Garland, the Respondent continues to struggle with appeals of her asylum denial even though her husband’s identical case wasGRANTED! Worse yet, both cases should have been “no brainer” asylum grants that could have been rapidly granted by the Asylum Office without detention or Immigration Court in a properly functioning system with expert judges setting correct asylum precedents at the BIA.
No wonder this system is continuing to deny justice, threaten lives, waste resources, and create backlogs under Garland! As noted in the above posting, even the New England Journal of Medicine is up in arms about this outrageous situation and mockery of our legal process!
But, Garland and his merry band at DOJ and EOIR seem impervious to criticism, rationality, or the rule of law! And to date, they have shown little or no willingness to engage constructively with progressive human rights and Immigration experts. I guess that’s what “Miller Lite Justice” is all about!
Garland continues to get his immigration advice from this source rather than inviting progressive experts in immigration, due process, and human rights, as well as rational administration, to his “Happy Hour @ EOIR.” “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color
There is simply no excuse for Garland’s continued mishandling of EOIR and asylum law generally! And, bureaucratic “Dedicated Dockets” run from the Falls Church Tower won’t solve the problem. Not by a long shot!
Progressive advocates and members of the NDPA need to stay energized, stay angry, and keep letting the Biden Administration feel the outrage at Garland’s inexcusable continued mishandling of EOIR!These problems will NEVER be solved with the group currently calling the shots at EOIR!
So, the question remains, with all this expertise available and some obvious solutions to some really dumb and life-threatening procedures and policies, why are Garland and Mayorkas “groping in the dark”rather than bringing in and empowering the progressive experts who will solve these problems?
Due Process Forever! Let your continuing outrage at EOIR’s failure to deliver due process and fundamental fairness with efficiency and humanity be heard and felt by the Biden Administration! Don’t take “Good Enough for Government Work” as Equal Justice in America from Democrats or Republicans! “Just say no” to more “Miller Lite Dred Scottification” of asylum seekers and other migrants! Wonder why our nation is struggling with racial justice? Look no further than Garland’s mishandling of EOIR!
President Biden has put Vice President Harris in charge of border issues and racial justice reforms. Progressive advocates should let her know directly that Garland is NOT getting the job done at Justice, and that they are sick and tired of not being consulted and having their expert candidates for EOIR snubbed in favor of Trump holdovers and non-progressives! If her “legacy” includes EOIR’s racially and gender insensitive, due-process denying, intentionally non-diverse “Kangaroo Courts” carrying out the Miller/Sessions/Barr White Nationalist nativist agenda, it won’t be a “good look” for her or her future! And, it most certainly will be bad, perhaps fatal, for our nation’s future as a liberal democracy!
“Diversity @ EOIR” “What’s wrong with this picture? Let Vice President Harris know that you want a new, diverse, progressive, expert, humanitarian, due-process-oriented judiciary in our now broken, biased, and dysfunctional Immigration Courts!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up””Just how is a ‘Dedicated Docket’ using current EOIR precedents and methods, and with too many ‘judges’ still ‘programmed to deny asylum for any reason’ going to help me achieve justice? What if I’m sent to an ‘Asylum Free Zone’ or my fate is put in the hands of a judge striving to achieve membership in the ‘90% Denier Club’ encouraged by Sessions and Barr and still running rampant under Garland?” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
ADR = “Aimless Docket Reshuffling” — a DOJ/EOIR specialty now being used by Garland’s DOJ
From: JeanC.King,ActingDirector Date: May 27, 2021
DEDICATED DOCKET
Effective:
OOD PM 21-23
May 28, 2021
PURPOSE:
OWNER: AUTHORITY:
CANCELLATION:
Establishes a dedicated docket for certain individuals in removal proceedings.
Office of the Director
Executive Office for Immigration Review (EOIR) Memorandum, Case Priorities and Immigration Court Performance Measures (Jan. 2018); 8 C.F.R. § 1003.0(b)
Policy Memorandum 19-04
EOIR is initiating a Dedicated Docket to focus on the adjudication of family cases as designated by the Department of Homeland Security (DHS). This docket will run alongside typical court operations in immigration courts in ten cities: Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, and Seattle. DHS has indicated that it will be placing on the Dedicated Docket families who crossed the Southern border and whom DHS has placed on alternatives to detention. Cases will be identified for this docket as of the effective date of this memorandum.
EOIR’s immigration judges will endeavor to issue a decision in each case on the Dedicated Docket within 300 days after the initial master calendar hearing. To facilitate such timeliness while providing due process, EOIR will only schedule these cases before immigration judges who generally have docket time available to manage a case on that timeline, but EOIR recognizes that unique circumstances of each case may impact the ability to issue a decision within that period. As needed, the Office of the Chief Immigration Judge will provide additional case management guidance to assist immigration judges in meeting this goal.
EOIR remains committed to the timely resolution of immigration court cases in a fair and impartial manner. Importantly, the adjudication timeframe established by this policy memorandum (PM) and any subsequent case management guidance is an internal goal. Respondents whose cases are on these dockets have the opportunity to request continuances, as do all respondents in removal proceedings, and immigration judges retain discretion to determine whether a continuance should be granted for good cause. See 8 C.F.R. § 1003.29. EOIR expects
1
that its immigration judges will make these determinations with full consideration for a respondent’s statutory right to counsel and consistent with due process and fundamental fairness.
Respondents whose cases are placed on these dockets will be provided with a number of services, including access to information services and possible referral services to facilitate legal representation. Each city in which EOIR has established the Dedicated Docket has an established pro bono network.
EOIR previously tracked certain cases designated by DHS in select immigration court locations. See PM 19-04, Tracking and Expedition of “Family Unit” Cases (Nov. 16, 2018). This effort was discontinued during the COVID-19 pandemic and has not been resumed. Thus, PM 19-04 is rescinded.
EOIR is managing the hearings with full consideration for the safety of its employees and all parties who appear in court. EOIR will continue to implement practices and procedures consistent with information from public health officials and guidance from the Office of Personnel Management and the DOJ Justice Management Division. See PM 20-13, EOIR Practices Related to the COVID-19 Outbreak (June 11, 2020).
This PM is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or equities, its officers, employees, or agents, or any other person.
Please contact your supervisor if you have any questions regarding this PM.
2
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In theory, prioritizing timely adjudication of recently arrived asylum seekers in Immigration Court could be a good idea –along the lines that a number of us recommended to the Biden Transition Team. But, not this way!
This “tone-deaf missive from on high,” as usual, is “designed to fail” rather than “dressed for success:”
It relies heavily on the ready availability of pro bono legal services in certain locations, yet, incredibly, there was NO ADVANCE CONSULTATION & COORDINATION with those key groups;
It is not accompanied by grants or other support to legal assistance groups to help them provide universal representation to asylum seekers;
There is no reason to believe that Immigration Judges in these locations are well-qualified to decide asylum cases merely because they have “docket space available;” indeed there are gross disparities in asylum grant rates among the selected courts;
Anti-asylum precedents issued by the Trump Administration remain in effect which undoubtedly will lead to unfair denials of asylum;
Among these anti-asylum precedents are some incorrectly limiting and discouraging continuances and administrative closing — making the promise of flexibility and fairness totally disingenuous;
Before instituting new programs in consultation with the private bar, the DHS, and the NAIJ (representing the IJs who will actually have to control these dockets), EOIR must slash the backlog by removing from the docket the vast majority of “non-priority” cases forming the astounding, largely self created 1.3 million case backlog;
With better precedents by a new BIA with progressive asylum experts as judges, and some procedural changes, many more asylum cases could be granted “in the first instance” by the Asylum Office, thereby reducing the pressure on the Immigration Courts while reducing the incentives for frivolous opposition to asylum cases by ICE, a big “time waster” in Immigration Court; but no such “progressive thinking or practical problem solving” is reflected in this directive.
Half-baked bureaucratic directives like this won’t solve the problem! It’s just more proof of how completely unqualified Garland’s DOJ and EOIR leadership are to administer a “real court system.” Where are the Article I advocates in Congress? Removing the Immigration Courts from DOJ needs to be one of our highest National priorities.
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! DOJ/EOIR incompetence, never!
Wendy Fry Watchdog & Accountability Team San Diego Union-TribuneDavid Hernandez Reporter San Diego Union-Tribune PHOTO: San Diego Union Tribune website
In the months before her death, Chavez Segovia had tried to cross the border at least two other times by land and had been expelled under Title 42, a Trump-era policy that allows the government to deny non-citizens entry into the country in response to the threat of COVID-19.
Migrant advocates have warned the strict border policy is pushing desperate people to take larger risks to try to cross the border into the United States, increasing the chances they become injured or killed.
“There are more people choosing to cross through dangerous routes, including the maritime crossing, because they don’t have the ability to present themselves at the ports because the ports are closed as a result of the Title 42 orders,” explained Pedro Rios, the director of the American Friends Service Committee’s U.S.-Mexico Border Program.
Chavez Segovia was trying to cross not just for work, but also because she was afraid, and was trying to claim asylum, said her sister, Gabriela, who is undocumented and living in northern California. She said Chavez Segovia tried to claim asylum on both previous crossing attempts.
Gabriela said she too was fearful of sharing details of her sister’s situation, especially because her sons remain in Mexico. But Gabriela said she wishes Chavez Segovia had gotten a chance to plead her case, and that U.S. border authorities had listened.
“Ella les dijo que viene de peligro; que corría peligro y ellos no le hicieron caso,” said Gabriela. “She told them she was coming from danger, that she was running from danger and they didn’t listen to her.
“What are you going to do? Wait until someone sits down and writes you a letter that says ‘I am threatening you.’ No, of course not, you’re going to go at the first opportunity,” said Gabriela, frustrated at the high bar of legal proof needed for one to make an asylum claim.
. . . .
****************
Read the full article at the link.
Failure to listen, failure to treat humans fairly and humanely. Hmmm . . . . seem to have heard that recently:
GARLAND, ATTORNEY GENERAL v. MING DAI CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–1155. Argued February 23, 2021—Decided June 1, 2021*
In each of these cases, a foreign national appeared before an immigration judge (IJ) and requested that he not be returned to his country of origin. For Cesar Alcaraz-Enriquez, the IJ first had to determine whether Mr. Alcaraz-Enriquez had committed a disqualifying “partic- ularly serious crime” based on his prior California conviction for “in- flicting corporal injury on a spouse or cohabitant.” See 8 U. S. C. §1231(b)(3)(B)(ii). The IJ considered both the probation report issued at the time of the conviction (which detailed a serious domestic vio- lence incident) and Mr. Alcaraz-Enriquez’s own testimony at the re- moval proceeding (which included an admission that he hit his girl- friend but allegedly did so in defense of his daughter). Relying in part on the version of events in the probation report, the IJ held Mr. Al- caraz-Enriquez ineligible for relief. On appeal, the Bureau of Immi- gration Appeals (BIA) affirmed. In Ming Dai’s case, he testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return. But Mr. Dai initially failed to disclose that his wife and daughter had both returned volun- tarily to China since accompanying him to the United States. When confronted, Mr. Dai told the “real story” of why he remained in the United States. The IJ found that Mr. Dai’s testimony undermined his claims and denied relief. On appeal, the BIA affirmed. Mr. Alcaraz- Enriquez and Mr. Dai each sought judicial review, and in each case, the Ninth Circuit noted that neither the IJ nor the BIA made an ex- plicit “adverse credibility determination” under the Immigration Na- tionality Act (INA). §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C).
——————
* Together with No. 19–1156, Garland v. Alcaraz-Enriquez, also on cer- tiorari to the same court.
2 GARLAND v. MING DAI Syllabus
Applying its own judge-made rule that a reviewing court must treat the noncitizen’s testimony as credible and true absent an explicit ad- verse credibility determination, the Ninth Circuit granted relief.
Held: The Ninth Circuit’s deemed-true-or-credible rule cannot be recon- ciled with the INA’s terms. Pp. 6–15.
(a) The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. The INA provides that a reviewing court must accept “administrative findings” as “conclusive unless any reasonable adjudi- cator would be compelled to conclude to the contrary.” §1252(b)(4)(B). And a reviewing court is “generally not free to impose” additional judge-made procedural requirements on agencies. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524.
Judicial proceedings in cases like these do not constitute “appeals” in which the “rebuttable presumption of credibility on appeal” applies absent an explicit credibility determination. §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the IJ to the BIA. See §§1158(d)(5)(iii)–(iv). Subsequent judicial review takes place not by appeal, but by means of a “petition for review,” which the INA describes as “the sole and exclusive means for judicial review of an order of removal.” §1252(a)(5). A presumption of credi- bility may arise in some appeals before the BIA, but no such presump- tion applies in antecedent proceedings before an IJ or in subsequent collateral review before a federal court. This makes sense because re- viewing courts do not make credibility determinations, but instead ask only whether any reasonable adjudicator could have found as the agency did. The Ninth Circuit’s rule gets the standard backwards by giving conclusive weight to any testimony that cuts against the agency’s finding. Pp. 6–9.
(b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for affirming the Ninth Circuit. Because, they say, they were entitled to a presumption of credibility in their BIA appeals, they are entitled to relief in court because no reasonable adjudicator obliged to presume their credibility could have found against them. Even assuming that there was no explicit adverse credibility determination here, the Ninth Circuit’s reasoning is flawed for at least two reasons. Pp. 10–15.
(1) The presumption of credibility on appeal under the INA is “re- buttable.” And the INA contains no parallel requirement of explicit- ness when it comes to rebutting the presumption on appeal. Reviewing courts, bound by traditional administrative law principles, must “up- hold” even “a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth
Cite as: 593 U. S. ____ (2021) 3 Syllabus
Circuit consider the possibility that the BIA implicitly found the pre- sumption of credibility rebutted. The BIA expressly adopted the IJ’s decision in Mr. Alcaraz-Enriquez’s case, which, in turn, noted that Mr. Alcaraz-Enriquez’s story changed from the time of the probation report to the time of the hearing—a factor the statute specifically identifies as relevant to credibility, see §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). And in Mr. Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Mr. Dai’s demeanor, candor, and internal inconsistency—an analysis that certainly goes to the presumption of credibility even if the agency didn’t use particular words. See ibid. In each case, the Ninth Circuit should consider whether the BIA in fact found the presumption of credibility overcome. If so, it seems unlikely that the conclusion in either case is one no rea- sonable adjudicator could have reached. Pp. 10–13.
(2) The presumption of credibility applies with respect to credibil- ity but the INA expressly requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof. §§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. Here, the Ninth Circuit erred by treating credibility as dispositive of both persuasiveness and legal sufficiency. Pp 13–15.
884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded. GORSUCH, J., delivered the opinion for a unanimous Court.
*********************************
Can’t win ‘em all: The Round Table filed an amicus brief on behalf of the respondent in this case. Sadly, on this occasion, we didn’t convince anyone.☹️
A watchdog group has filed a brief opposing the Justice Department’s push to keep secret former Attorney General William Barr’s memo concerning ex-President Donald Trump’s possible obstruction of the investigation into Russia’s interference in the 2016 election.
“The DOJ must produce the document, clean up the department, and show that it will not be used for the personal protection of any president,” the Citizens for Responsibility and Ethics in Washington said in a statement Friday after it filed the brief. CREW initially sought release of the memo through the Freedom of Information Act.
At issue is Barr’s decision to ignore any obstruction of justice issues concerning Trump despite strong evidence against him revealed by then-special counsel Robert Mueller. Critics said Barr misled the public by cherry-picking quotes from Mueller’s report to protect Trump. They accused him of making a political decision rather than a legal one.
Barr claimed that justification for the lack of any action against Trump was carefully considered and spelled out in the memo, which had previously only been made public in a highly redacted form.
But according to U.S. District Judge Amy Berman Jackson, who ordered the release of the nine-page memo earlier this month, Barr’s decision was a foregone conclusion. Barr had already made up his mind not to prosecute Trump before considering any of the advice or analysis that he claimed informed his decision, she said in her order.
Jackson added that the memo contained “strategic, as opposed to legal, advice” and that both the writers and the recipients already had a mutual understanding about what the prosecutorial decision would be.
A “review of the document reveals that the Attorney General was not engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given,” the judge wrote in the order.
. . . .
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Read the rest of Mary’s article at the link.
If Team Garland has a plan to “clean up the Department,” as advocated by Citizens for Responsibility and Ethics in Washington in their brief, they are certainly keeping THAT a secret.
Nowhere has Garland’s failure to be the long awaited “Mr.Clean” been more notable and harmful to good governance than at EOIR. There, he has inexplicably continued to unconstitutionally promote a charade of a“court” system that lacks fair and impartial judges. Rather than bringing in the necessary expert progressive reformers from the NDPA to clean up the mess, restore due process, create quasi-judicial independence, and institute best practices, the dysfunction continues to get worse, progressive advocacy groups (who helped put Biden/Harris in office) are totally outraged and frustrated, the “same old, same old” deficient recruitment and hiring practices remain in effect, and the totally dysfunctional bureaucratic structure, comprised largely of Trump holdovers and bureaucrats, maintains its “death spiral.”⚰️
