"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.
A federal appellate court Thursday temporarily granted the Biden administration’s request to continue the use of a public health order to quickly expel migrants with children who are stopped along the U.S. border.
A lower court had given the Biden administration until Thursday to limit use of the law, while immigrant and legal advocates proceeded with a lawsuit against it. The Trump administration had invoked the 1944 health statute, known as Title 42, to close the border to prevent people from entering the country, citing concerns about the spread of the coronavirus.
The case, brought in the District of Columbia by the American Civil Liberties Union and other groups, focuses on families with children, meaning the administration can continue to expel single adults under the provision.
U.S. District Judge Emmet Sullivan found earlier this month that advocates were likely to succeed with their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.
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Read Andrea’s complete article at the link!
More unfair and unjustified returns of refugees to death and despair courtesy of an Administration that doesn’t care and Federal Judges unwilling to do their jobs! The dead can’t speak. But, history will judge all those involved in this disgraceful episode!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
ALERTS
EOIR Courts & Appeals Systems (ECAS) Locations: Electronic filing went live on 9/23/2021 at NYC-Broadway and will be available at NYC-Varick on 9/30/2021 (remember that electronic filing is not available for cases that commenced before those dates). No date has been announced for NYC-Federal Plaza, although EOIR has previously indicated all courts should have ECAS by 2022.
Reviewing ROPs: There have been reports of attorneys successfully scheduling appointments to review the record of proceeding at Varick and 290 Broadway. The clerk answering the main phone line at 26 Federal Plaza indicated she was unaware of any policy allowing in-person review of ROPs at this time but stated people could try making a request.
ABC: The proposed regulation attempts to satisfy concerns of a federal judge in Houston who ruled in July that the Deferred Action for Childhood Arrivals program was illegal. It takes on heightened importance as prospects for legislation have dimmed.
WGBH: The Office of the Principal Legal Advisor sends its prosecutors to litigate deportation cases before the Executive Office for immigration Review, the body that oversees the nation’s immigration courts. Doyle has been an outspoken critic of the agency and has led many lawsuits against it.
EOIR: Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations.
NPR: As the Biden administration scrambles to relocate thousands of Haitian migrants camped in a small Texas border town, it’s also looking for a private contractor to help operate a migrant detention facility at the U.S. Naval base at Guantanamo Bay, Cuba — and to hire at least some guards who speak Spanish and Haitian Creole.
NYT: Mr. Biden’s decision is unlikely to affect two groups of people most recently in the news: tens of thousands of people from Kabul fleeing the Taliban takeover in Afghanistan and more than 15,000 Haitians in a sprawling, makeshift camp under a bridge at the southern border.
Politico: The inspector general also found that a Customs and Border Protection official asked the Mexican government in December 2018 to block 14 U.S. citizens from entering Mexico as the caravan approached the U.S. border even though it had “no genuine basis” to do so.
NYT: Among the many cruelties of our immigration system is this: Transnational adoptees, whose stories begin with a rupture from their birth families and home countries, have often found themselves deprived of U.S. citizenship and at risk of deportation.
AP: Newsom on Friday signed a law that removes the word from various sections of the California state code. California passed laws in 2015 and 2016 that removed the word from the state’s labor and education code.
AP: But contrary to expectations, nearly all 92,000 people approved for aid so far have qualified for the maximum $15,600 available under the program, the state’s website showed Thursday afternoon. Roughly 223,500 claims have been submitted overall, with a rush coming in recent days.
BIA: A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings.
LexisNexis: Spring, Texas attorney Veronica Semino scored this unpublished BIA remand for her client, who is still detained in Oakdale. In the single-member decision dated Aug. 5, 2021 , Temporary Appellate Immigration Judge Gabriel Gonzalez wrote: “[W]e agree with the respondent that the harm he suffered in Jamaica rises to the level of persecution.
Law360: The Third Circuit Wednesday vacated a Board of Immigration Appeals’ decision that denied a Yemeni man’s request for protection from deportation, saying the board ignored “overwhelming evidence” that the man had been persecuted and could be tortured for his political beliefs.
LexisNexis: Abushagif v. Garland “Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed.
AILA: The court held that the BIA erred by failing to require DHS to make a good faith effort to present for petitioner’s cross-examination the author or declarant of a probation report upon which it relied to make its particularly serious crime determination. (Alcaraz-Enriquez v. Garland, 9/16/21)
AILA: The court held that because the petitioner’s prior removal order was reinstated, he had no right under the INA to seek asylum and no constitutional right to have DHS consider whether, as a discretionary matter, to decline to reinstate that order. (Iraheta-Martinez v. Garland, 9/7/21)
Law360: The Ninth Circuit denied a Chinese national’s bid for asylum over religious persecution, finding that she failed to disclose her 2013 arrest by U.S. authorities and could not offer a plausible explanation for her omission.
Law360: Two immigration courts improperly dismissed evidence supporting a Chinese woman’s claims that government officials forced her to undergo an abortion in her home country, according to the Ninth Circuit, which revived her family’s asylum case.
Law360: A D.C. federal judge approved a plan requiring U.S. Immigrations and Customs Enforcement to attempt to place migrant teens who turn 18 in government custody in less-restrictive housing options than adult detention facilities, stipulating changes to documentation and officer training.
Law360: A Florida federal judge on Tuesday struck down key portions of a 2019 state law banning “sanctuary” immigration policies as unconstitutional, finding a South Florida city and immigration advocates proved discriminatory intent and violations of equal protection rights at a bench trial in January.
LexisNexis: Derek Brouwer, Vermont Seven Days, Sept. 24, 2021 “Border patrol officers can search Vermonters’ cars without a warrant under their special federal authority to conduct “roving” patrols within 100 miles of the U.S. border. But, as of Friday, evidence they collect during the controversial searches can no longer be used to prosecute crimes in state courts, a narrow majority of the Vermont Supreme Court.
Law360: A class of asylum-seekers has asked a California federal judge to oversee the U.S. Department of Homeland Security’s compliance with two orders directing authorities to process some asylum claims, saying the federal government’s foot-dragging has proven the need for court oversight.
Law360: Texas and Missouri have blasted the Biden administration’s delays in complying with a court order to restart a Trump-era program requiring asylum-seekers to wait in Mexico, saying the government need not hash out an agreement with Mexico before reinstating the policy.
Law360: The American Civil Liberties Union urged the D.C. Circuit to maintain a lower court ruling that blocked a Trump-era asylum bar, saying that though the regulation is now moot, vacating the injunction would create “perverse incentives” for the government.
AILA: USCIS announced that, in response to the ongoing COVID pandemic, it extended the flexibilities for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 15, 2022, inclusive.
AILA: DOJ announced that non-U.S. citizens can request new or replacement Social Security cards using USCIS Forms I-765 or I-485, instead of visiting a local Social Security Administration office. Cards should be received within two weeks after receiving Employment Authorization Documents.
AILA: ICE provided updated statistics on COVID-19 in ICE detainees, by facility. As of 9/23/21, there are 526 positive cases currently in custody among a total detainee population of 22,442.
AILA: On 9/17/21, President Biden signed an executive order imposing sanctions on persons determined to be responsible for humanitarian and human rights violations in Ethiopia, including suspending the immigrant and nonimmigrant entry into the United States of such persons. (86 FR 52389, 9/21/21)
AILA: DOS provided the President’s Report to Congress on the proposed Presidential Determination on Refugee Admissions for FY2022. The report recommends an increase in the refugee admissions target from 62,500 in FY2021 to 125,000 in FY2022, prioritizes admissions, states ORR goals, and more.
“After 16 years of inexcusable delays, I am proud that EOIR’s dedicated work over the past year has culminated in the piloting of a comprehensive electronic filing and case management system,” said [then] EOIR Director James McHenry. “With this important initiative, EOIR joins other court systems in the U.S. that have long provided such capabilities. ECAS will aid the parties and assist judges in hearing cases expeditiously and fairly, and will further augment EOIR’s efforts in tackling the pending case backlog.”
. . . . The program will extend to all remaining immigration courts in 2019.
Las Vegas is giving 50-1 odds that this won’tbe in full operation by the end of 2022. Anyone want to bet on “America’s Clown Courts” 🤡 to beat the odds and deliver?
Meet the New Chief of E-Filing @ EOIR (Looks alot like predecessors). Reportedly, he has a “nose” for the business! PHOTO: Wikimedia Commons
Democrats suffered a major blow when the Senate Parliamentarian, Elizabeth MacDonough, decided that they could not include immigration provisions in their $3.5 trillion budget reconciliation bill. According to MacDonough, the effect that the immigration provisions would have on the budget would be incidental to their overall policy effect.
The rejected provisions would have provided legalization for undocumented immigrants who were brought here illegally as children, often called “Dreamers;” undocumented immigrants with Temporary Protected Status; and undocumented essential workers. This would have made lawful status available to more than 8 million undocumented immigrants.
Sen. Bob Menendez (D-N.J.) claims that there is another option, which is to narrow the immigration reform provisions such that Democrats can navigate it through the Senate’s Byzantine rules. He thinks this can be done with an update to the registry provision in the Immigration and Nationality Act (INA).
Registry is a process that permits undocumented immigrants to become lawful permanent residents (green card holders) on the basis of their long-standing presence in the country, regardless of their status or the way they entered the country.
I don’t think updating the registry provision will be acceptable to MacDonough either — It’s just another way to legalize undocumented immigrants.
But it might be possible to move a registry update through the regular legislative process. The registry process has been in place for nearly a century. It reflects our nation’s historical sense of fairness to allow undocumented immigrants who have lived in the country for a very long time an opportunity to obtain legal status, and it hasn’t been updated since 1986.
As Dean Kevin Johnson noted in his ImmigrationProf post, Nolan correctly predicted that the Parliamentarian would reject registry as part of budget reconciliation. But, the possibility for bipartisan legislation doesn’t end there.
Any time we have Nolan and ImmigrationProf Blog resident expert Professor Kit Johnson talking about the same possible solution, folks in Congress on both sides should wake up and take notice! Doesn’t mean they will. But they should think about proposed solutions from thoughtful subject matter experts, who have been involved in the process for years, and who often come at problem-solving from different angles.
Kit Johnson Associate Professor of Law University of Oklahoma Law School
Here’s a “key quote” from Judge Susan Graber’s majority decision:
In summary, Petitioner’s Notice of Appeal was sufficiently specific to inform the BIA of two issues that she was challenging, given her status as a pro se litigant. Therefore, the BIA violated her right to due process by summarily dismissing her appeal. Whether Petitioner’s claims are meritorious is not before us; that question is for the BIA to decide in the first instance. We remand to the BIA for it to consider the merits of Petitioner’s claims.
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The BIA likes to dump on unrepresented individuals with summary dismissals because it “generates numbers” and helps fulfill “production goals” without requiring much attention or thinking. As Judge Graber noted, there is no doubt that a minimally competent BIA Appellate Judge could tell exactly what aspects of the IJ’s decision the pro se respondent was challenging. Encouraged to cut corners by their DOJ overlords, the BIA simply found it more expedient to deny without answering the respondent’s objections to the IJ’s decision.
This is just a glimpse into the daily due-process-denying operations of the BIA under Garland. Sometimes, these improper actions get “outed.” But, that would be the exception. Planning to throw 200 new judges into a broken, corner-cutting system, without addressing its obvious defects, is not a a recipe for success! And, relying on this version of the BIA to keep new or incumbent IJs “in line” or promote consistency and “best judicial practices” among what would be approximately 750 IJs nationwide is simply absurd! This is the type of “solution” that only could be proposed by someone who had never represented an individual in Immigration Court!
131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest
The judges failed to recuse themselves from 685 lawsuits from 2010 to 2018 involving firms in which they or their family held shares, a Wall Street Journal investigation found
By James V. Grimaldi, Coulter Jones and Joe Palazzolo
Sept. 28, 2021 9:07 am ET
More than 130 federal judges have violated U.S. law and judicial ethics by overseeing court cases involving companies in which they or their family owned stock.
A Wall Street Journal investigation found that judges have improperly failed to disqualify themselves from 685 court cases around the nation since 2010. The jurists were appointed by nearly every president from Lyndon Johnson to Donald Trump.
About two-thirds of federal district judges disclosed holdings of individual stocks, and nearly one of every five who did heard at least one case involving those stocks.
Alerted to the violations by the Journal, 56 of the judges have directed court clerks to notify parties in 329 lawsuits that they should have recused themselves. That means new judges might be assigned, potentially upending rulings.
When judges participated in such cases, about two-thirds of their rulings on motions that were contested came down in favor of their or their family’s financial interests.
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Read the full article at the link.
This is seriously bad stuff that should never have happened.
Admittedly, Federal conflict of interest rules can be both complicated and annoying. But, complicated legal issues are these judges’ “specialty.” “Ignorance is no excuse” is a common judicial cliche!
Even at EOIR, judges got decent training in these types of ethical requirements, including examples that covered the types of conflicts uncovered by the WSJ; they were fairly rare at EOIR given the subject matter at issue in most cases and the relatively modest financial circumstances of most Immigration Judges, many of whom were career civil servants.
Other types of potential conflicts or “appearance” issues did arise more frequently at EOIR. We were advised “When in doubt, sit it out!”
Obviously, the Administrative Office for U.S. Courts (“AOUSC”) isn’t doing its job here! It appears that using the same public information available to the WSJ reporters, the AOUSC could have not only discovered these conflicts much earlier (perhaps before decisions were rendered) but also set up an automated system for discovering potential conflicts in advance. Jones Day had such a system when I was there three decades ago!
Chief Justice John Roberts must insist that all Article III Judges take their ethical obligations more seriously and that they become thoroughly familiar with the requirements applicable to them. And, he should demand that the AOUSC provide the necessary training and monitor compliance with an automated conflicts identification system!
My friend and Round Table colleague Judge Lory D. Rosenberg sent me the following this morning:
I want to share some awful news I learned last night. Lisa Brodyaga is in hospice with very little if any time left.
Its so sad.
If any of you know Lisa and wish to communicate with her before she leaves us, send an email to her at her email address. Friends will retrieve the emails and read them to her. Her friend Thelma Garcia told me Lisa listened tonight with her eyes closed and was smiling as Thelma read them to her.
And, here’s a bit about her long and illustrious career.
NIPNLG Proudly Announces its 2019 Member Honorees
Lisa Brodyaga and Al Otro Lado
Please join NIPNLG in paying tribute to two extraordinary honorees on the frontlines fighting injustice every day.
Lisa Brodyaga
Lisa Brodyaga has represented asylum seekers and other immigrants, and even U.S. citizens, since 1978. Since 1981, she has been certified in immigration and nationality law by the Texas Board of Legal Specialization. In 1985, Lisa co-founded Refugio Del Rio Grande, a 501(c)3 refugee camp and law office on a 45-acre wilderness near Harlingen, Texas, where she still serves as a volunteer attorney. Initially, most of Lisa’s work involved asylum seekers, including arguing Guevara-Flores v. INS (5th Cir. 1986); and also lawful permanent residents, including in Diaz-Resendez v. INS (5th Cir. 1992). Lisa’s career is punctuated with victories, such as Carranza de Salinas v. Holder (5th Cir. 2012), and many others, without which, many critical pro-immigrant court decisions would not be – or would not have been – possible. Lisa lives on the premises of Refugio, nurturing her farm roots, with her beloved Boxers, a horse, a pair of white llamas, a flock of chickens, and a small, very spoiled, herd of cattle.
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Lisa argued a number of cases before the BIA during my tenure. We also frequently were on opposite sides of litigation during my tenure at the OGC of the “Legacy INS,” as well as being on the “same side” during my time in the private sector and academia.
No matter what side we were on, I always appreciated Lisa’s passion, scholarship, and willingness to take on the most difficult and important issues for her often pro bono or “low bono” clients.
Lisa certainly has been a role model for the totally dedicated NDPA attorney — saving the lives of the most vulnerable among us and aggressively working every day to improve and protect our democracy.
My deepest appreciation for “a life well lived,” Lisa! May eternal peace and mercy be with you! I will miss you.
“Supremes? What Supremes? We work for Judge Garland @ DOJ, and he’s very, very tolerant of our anti-immigrant, pro-DHS ‘culture,’ and institutionalized poor decision-making over here at ‘his EOIR!’ Our jobs are safe, and that’s all that matters! To hell with ‘the others!’ ‘Jeffie Gonzo’ and ‘Billy the Bigot’ told us to treat migrants like the ‘trespassers’ and ‘scum of the earth’ they really are! It’s not like OUR families were ever migrants!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Rodriguez v.Garland, 5th Cir., 09-27-21, published
PANEL: Higginbotham, Willett, and Duncan, Circuit Judges.
OPINION: Judge Patrick Higginbotham
KEY QUOTE:
The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].”23
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Judge Higginbotham was appointed by President Ronald Reagan. Even conservative Article III Judges aren’t as anxious to snub the Supremes as the BIA.
After all, the BIA works for the Attorney General, not the Supremes. So, who cares whether their decisions comply with the rulings of the Article III Courts, so long as their political “handlers” at the DOJ are pleased with the pro-DHS outcome! That’s what happens when a “captive court” is encouraged to view itself as an extension of their “partners” at DHS enforcement, carrying out the political agenda of their DOJ superiors who control their paychecks and their career destiny!
Wow! It took fewer than three business days for Garland’s latest venture into obtuse anti-immigrant decision-making at the BIA, Matter of Arambula-Bravo, to hit a brick wall! In the 5th Circuit, no less! Back in the “old days” of the “Legacy INS,” it was a very bad sign when we couldn’t “sell” a position to the 5th Circuit!
Have to wonder if Judge Garland would have been so sanguine with the dissing of the Supremes by the BIA if he had actually become “Justice Garland?”
As my esteemed colleague Judge “Sir Jeffrey” Chase noted, the position adopted by the 5th Circuit in Rodriguez:
is the same argument we [the “Round Table”] made in our recent amicus brief to the Board – in a published decision, the 5th Cir. granted a PFR and vacated the Board’s decision denying a motion to rescind an in absentia order where there was no proper service due to a defective NTA under Niz-Chavez.
By failing to replace the BIA with better qualified progressive expert judges who will issue correct precedents (even when they might benefit immigrants) and require “best practices” in the now-totally-dysfunctional Immigration Courts, Garland is further building backlog by generating thousands of unnecessary remands and reopenings. How long will it take him to reach the 2 million case mark?
“Bogus dedicated dockets,” gross misuse of the discredited “Title 42” rationale to deny due process, increased use of “expedited removal,” proposals to “rubber stamp” asylum and credible fear denials, badly skewed pro-enforcement interpretations that throw the fate of hundreds of thousands of cases into the Circuits and the Supremes aren’t going to solve the problem!
Never underestimate the adverse effects of bad judging, particularly in a high volume system where incorrect precedents result in wrong decisions in hundreds of cases every day! Conversely, you can’t overestimate the positive potential of progressive expert judges who would get the results correct at the “retail level;” force some badly needed quality control, discipline, and consistency at both EOIR and DHS; and solve problems rather than creating them!
Sadly, Garland doesn’t “get it!” And that will be a continuing unmitigated disaster for our democracy and our justice system! Such a lost opportunity!
Has Alfred E. Neumann been “reborn” as Judge Merrick B. Garland? “Not my friends, relatives, or attorney buddies whose lives are being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their ‘scuzzy, unimportant immigration lawyers,’ so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
There are enormous downsides to border disorder, to immigration policy paralysis and to leaving the fates of more than 11 million current immigrants without any path to a secure future — even beyond the reinforcement it provides to the United States’ growing international reputation for dysfunction. No one gains by the chaos except smugglers who soak desperate migrants financially on their way north in hopes of a better life. The losers include not only the “dreamers” brought to this country as children, who must live in perpetual anxiety, but also the country as a whole, which loses the value of immigrants, skilled and otherwise, who would turbocharge entrepreneurship, create jobs and help the economy grow.
There are available solutions if Congress could overcome its horror of bipartisan compromise. The goal should be to establish a realistic annual quota of immigrant visas for Central Americans, Haitians and others desperate to reach this country who otherwise will cross the border illegally — a number that recognizes the U.S. labor market’s demand for such employees. That must be supplemented by a muscular guest worker program that enables legal border crossing for migrants who want to support families remaining in their home countries.
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Read the complete editorial at the link.
It’s worth adding that the current “border disorder” is largely the result of White Nationalist, legally defective, anti-immigrant policies of the Trump regime compounded by the failure of Mayorkas and Garland to take the obvious, available, common sense steps necessary to reopen legal border ports of entry, to make the long overdue necessary reforms to establish a fair, efficient, and generous legal asylum system at the USCIS Asylum Offices and the Immigration Courts, and to insist on the creation of a robust, functional refugee program for Latin America and the Caribbean.
None of the this is “rocket science!” 🚀 Plenty of great blueprints for administrative reforms and the potential expert leadership to implement them were “out there for the taking” at the beginning of the Biden Administration. By dawdling, tapping the wrong leaders, and continuing enforcement policies and bad judicial practices that were proven failures, the Administration predictably put itself “behind the eight-ball” in establishing order and implementing the rule of law at our borders!
Until the Biden Administration ends its disgraceful, cowardly, illegal, cruel, ineffective, and inhumane reliance on bogus “Title 42” restrictions to suspend orderly legal processing at the border, they will continue to bobble the next predictable “border crisis.” The GOP will continue to spout nativist nonsense. Desperate people will continue to do desperate things. Only a tone-deaf Administration would continue to ignore this reality!
Several Black immigration organizations have filed a formal complaint with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, demanding that the Biden administration halt its continued deportations of Haitian asylum seekers.
The complaint filed by four groups ― the Haitian Bridge Alliance, UndocuBlack Network, African Communities Together and Black Alliance for Just Immigration ― requests that any potential witnesses of Border Patrol abuses be allowed to remain in the U.S. while their asylum claims are investigated. The complaint was first reported by theGrio, and signed by dozens of advocacy groups.
More than 13,000 Haitians were camped along the river at the Texas border town of Del Rio last weekend when Border Patrol officers on horseback charged at some of those gathered there, verbally assaulting and appearing to whip them. Photos of the violence shocked the public.
. . . .
The complaint by the organizations notes that the migrants have been denied access to attorneys, interpreters, adequate medical care, fear-based screening and proper nourishment and sanitation, all under intense heat. It also highlights physical intimidation and violence against migrants by Border Patrol officers, and misleading statements made by Homeland Security officers to Haitians about where they were being flown to.
“We’re not living up to our obligation as a nation to be a place of refuge for people seeking a better life,” former Obama administration Cabinet member Julián Castro told HuffPost earlier this week. “And in the least, asylum seekers, whether they’re from Haiti, or from one of these Northern Triangle countries should be allowed to make their asylum claim, instead of being severely expelled from the country. This was not the change we were hoping for on immigration policy.”
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Mayorkas’s defense of his grotesque, “Trumpist” misuse of Title 42, which actually has been rejected by a Federal Judge, on “Meet the Press” was as disgraceful as it was dishonest!
Either Mayorkas doesn’t understand reality, or he’s too intellectually dishonest to speak truth! Regardless, it’s not good!
Re-establishing the rule of law and treating asylum seekers fairly and generously, as the law requires, is not an option! It’s a legal and moral obligation! There is absolutely no reason to “apologize” for treating asylum seekers fairly and humanely, no matter what racist GOP nativists like Texas “Governor Death” Greg Abbott and Senator “Cancun Ted the Insurrectionist” Cruz say!
The US homeland security secretary, Alejandro Mayorkas, on Sunday defended the Biden administration’s decision to send thousands of Haitians to a home country they fled because of natural disasters and political turmoil.
White House criticizes border agents who rounded up migrants on horseback
Mayorkas told NBC’s Meet the Press the removals were justified because of the coronavirus pandemic, a point disputed by advocates and public health experts.
“The Centers for Disease Control [and Prevention, or CDC] has a Title 42 authority that we exercise to protect the migrants themselves, to protect the local communities, our personnel and the American public,” Mayorkas said.
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“The pandemic is not behind us. Title 42 is a public health policy, not an immigration policy.”
Since Donald Trump’s administration implemented Title 42 in March 2020, advocates and dozens of public health experts have called for its end.
Under Title 42, people who attempt to cross the border are returned to Mexico or deported to their home countries without an opportunity to test asylum claims.
In January, Joe Biden stopped the rule from applying to children. Despite that, at least 22 babies and children were deported to Haiti in February.
More than 30 public health experts wrote to Mayorkas and the head of the CDC, Rochelle Walensky, earlier this month, saying Title 42 was “scientifically baseless and politically motivated”.
This coalition has repeatedly said the policy violates the right to seek asylum and ignores how basic public health measures can reduce the spread of Covid-19.
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“Title 42 runs counter to the government’s own commitment to address Covid-19 globally,” the coalition said. “The absence of effective Covid-19 mitigation services at the border and the expulsion of people to situations in which they may be exposed to Covid-19 and unable to practice prevention are contrary to the US government commitment to address Covid-19 globally.”
On Sunday, Mayorkas told CNN about 4,000 Haitians who arrived in the past two weeks have been expelled, 13,000 others had been allowed to enter the US to pursue their immigration cases in court and 8,000 had voluntarily chosen to return to Mexico.
NBC’s Meet the Press host Chuck Todd questioned Mayorkas about why thousands were being sent to Haiti even though they had traveled to the US from South America.
“These are Haitian nationals,” Mayorkas said. “Some of them don’t have documents from the countries from which they just left. So they are subject to removal.”
. . . .
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Of course, Haiti clearly is not a safe place to return migrants:
‘They treated us like animals’: Haitians angry and in despair at being deported from US
‘They treated us like animals’: Haitians angry and in despair at being deported from US
Haitian deportees arriving from Texas say they were ‘rounded up like cattle and shackled like criminals’
Joe Parkin Daniels in Port-au-Prince
Published:
05:00 Sunday, 26 September 2021
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When Evens Delva waded across the Rio Grande with his wife and two daughters, he had dreams of starting a new life in Florida. But less than a week later, he and his family stepped on to the tarmac in Port-au-Prince, the sweltering and chaotic capital of Haiti, with nothing except traumatic memories and a feeling of bubbling anger.
Delva, along with nearly 2,000 other Haitians, was deported from southern Texas this week to Haiti, despite having lived in Chile for the past six years and having few remaining connections to his home country. His younger daughter, who is four, does not hold Haitian citizenship, having been born in Chile, and speaks more Spanish than Haitian Creole.
“I don’t know what we’ll do, we don’t have anywhere to stay or anyone to call,” the 40-year-old said, moments after getting off the plane in the blistering midday Caribbean heat. “All I know is that this is the last place I want to be.”
Evens Delva and his wife at Port-au-Prince airport in Haiti on Friday after being deported from Texas. Photograph: Joe Parkin Daniels/The Guardian
It is not hard to understand why. Haiti, the poorest country in the western hemisphere, is mired in overlapping crises. Gasoline shortages and blackouts are a daily reality, while warring gangs routinely kidnap for ransom and wage battle on the streets.
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The grim situation only worsened when the president, Jovenel Moïse, was assassinated in his home on 7 July, triggering a political power struggle and further instability and street violence. On 14 August, a 7.2-magnitude earthquake struck the country’s poor southern peninsula, killing more than 2,200 people and leaving tens of thousands homeless.
US envoy to Haiti resigns over ‘inhumane’ decision to deport migrants
The Biden administration’s decision to deport thousands of Haitians under such circumstances drew opprobrium around the world, and prompted the US envoy to Haiti to resign in protest. Haiti is “a country where American officials are confined to secure compounds because of the danger posed by armed gangs in control of daily life”, he wrote in his resignation letter. “Surging migration to our borders will only grow as we add to Haiti’s unacceptable misery.”
Last week, the world was shocked by images of police officers on horseback charging at desperate Haitian migrants near a camp of 12,000, set up under the Del Río-Ciudad Acuña International Bridge. Delva was on his way to buy food and water for his family when the cavalry charge sent him and dozens of his compatriots running in a frenzy.
“We were rounded up like cattle and shackled like criminals,” he said, having spent the six-hour flight from San Antonio with his hands and legs tied.
“They treated us like animals,” added Maria, his wife.. “We’ll never forget how that felt.”
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David K.Shipler American Author PHOTO: Twitter
David Shipler does a great job of exposing the hypocrisy and intellectual dishonesty of Mayorkas and other Biden Administration immigration officials.
America’s Callous Border
By David K. Shipler
Several years ago, a gray-haired passport control official at Heathrow Airport in London, noting “writer” under “occupation” on my landing card, asked me what I wrote. I was finishing a book on civil liberties, I told him, with a chapter on immigration. That caught his interest. He leaned forward, glanced around, lowered his voice and said, “I loathe borders.”
Funny line of work you’re in, I said. We shared a chuckle, he stamped my passport, and I crossed the border that he loathed.
We have nation states, and so we have borders. Dictatorships need them to keep people in, lest their countries be drained of the talented and the aspiring. Democracies need them to keep people out—often those with talent and aspiration who are fleeing to safety and opportunity. So far, the United States is lucky enough to be the latter. So far.
When desperate fathers and mothers are drawn with admiring naïveté to the beacon of America, when they carry their children through months of torment by mountain jungles and predatory gangs, when their courage and towering fortitude set them apart from the masses, shouldn’t they be embraced when they reach the final border of a nation of fellow immigrants that touts its compassion and humanity?
Cut through the crazy tangle of immigration laws, regulations, and inconsistent enforcement to the essential ethic, and the answer is an obvious yes. But the obvious is not obvious in the White House or in the Department of Homeland Security or in the ranks of the beleaguered Border Patrol, whose horsemen scramble, as if herding cattle, to intercept frantic Haitians wading from the Rio Grande onto the banks of freedom and promise.
Instead, a new torment is found: Haitians with enough grit to leave their country a decade or so ago and build lives on the margins in Brazil, Chile, and elsewhere are taken from their first steps onto U.S. soil and summarily—summarily, without due process—deported. And where to? To Haiti, a failed state where many have long since lost family or work or even places of shelter. To Haiti, which has collapsed into such violence and disarray that the State Department warns Americans on its website: “Do not travel to Haiti due to kidnapping, crime, civil unrest, and COVID-19.”
What is wrong with the air in the White House? Is there not enough oxygen? What accounts for the impaired thinking that seems to transcend administrations, from Republican to Democratic. Where is the regard for human dignity? Why is it so often absent in the calculations that create policy?
Donald Trump wore callousness on his sleeve and was proud of it. His base hooted its applause at his vilification of Mexican immigrants as rapists and drug dealers. By contrast, Joe Biden wears a badge of empathy. His mantra is compassion. “Horrible” and “outrageous” were the words he found to describe the photographed attacks on Haitians from horseback. He halted the use of horses and vowed that agents responsible “will pay.” He also said, “It’s simply not who we are.”
But it is who we are. The images have been compared to old photos of white overseers on horseback commanding enslaved Blacks in the fields. The Border Patrol in cowboy hats have been compared to Texas Rangers “who were celebrated for their excellent ‘tracking skills’ that were put to use to hunt and capture enslaved people,” said historian Monica Martinez of the University of Texas.
These are compelling analogies with painful resonance. They are also flawed as parallels, for the Black migrants at the border are not slaves. They are clamoring to be here, crossing illegally, seeing the border as a threshold. They were not brought here in chains against their will. Some are being removed in chains against their will.
Nevertheless, in a sense they are enslaved by their blackness. If white Canadians tried this up north, does anybody truly believe that they would be treated as the Black Haitians are? Animating America’s conscience should not require reaching back to the sin of slavery. The present ought to be enough.
Our borders always put our split personality on display: We are cruel and welcoming, hateful and helpful, defined by doors closed at times to entire ethnic groups and then opened to invigorate the nation with willing hands and vital contributions.
In fact, if the country is not sufficiently moved by simple morality, then it might consider self-interest. The U.S. population growth rate has been falling steadily since 2008, dropping to a mere 0.58 percent from 2020 to 2021. Many regions lack skilled workers, as homeowners and small business owners and even hospitals can testify from trying to hire carpenters, plumbers, electricians, welders, mechanics, and nurses. We should have winced when one Haitian deportee was quoted as describing himself as a welder and carpenter.
Using abuse to manipulate determined people did not work under Trump—a lesson that Biden and his advisers might have learned. Trump’s administration separated children from their parents at the border, his aides reasoning that families heading north would get the message and—what?–abandon their fortitude and survival instincts, turn around, and head back to life-threatening misery?
So, too Biden officials are reportedly figuring that tossing Haitian expatriates into Haiti’s maelstrom will dissuade others from coming. In other words, don’t be humane, and folks will give up. But they won’t give up. They will still roll the dice, because there’s always a chance, especially since some are being allowed to stay, at least for a while, pending proper examination of their asylum claims as the law requires. When your ship has sunk, you don’t stop clinging to a piece of flotsam just because some shipmates have slipped off into the sea.
What the Biden White House needs is somebody in an influential position who has made this journey, who has shepherded family and children through jungles and ganglands to reach this supposedly promised land. That official might bring to the Oval Office a glimmer of understanding and respect for the force of personality and perseverance that drive a person toward our callous border.
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Something about the DHS Secretary job seem to require checking honesty, common sense, historical perspective, and humanity at the door, not to mention the true “rule of law.”
“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”
The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.
“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”
The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.
Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!
Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:
While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal
Country Reports on Human Rights Practices for 2020
United States Department of State • Bureau of Democracy, Human Rights and Labor
LIBYA 7
facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.
Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.
Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist!
One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!
How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!
Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!
Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!
The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.
This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.
Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place.
This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts ofpro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!
Garland indifferent to wrong torture decisions from BIA? Photo by David R. Badger, Creative Commons
I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).
Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, andmany public speaking, writing, and other public information and educational functions.
While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.
It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!
Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮
Obviously, THESE are the practical scholar/immigration experts who belong on the BIA:
Kit Johnson Associate Professor of Law University of Oklahoma Law SchoolProfessor Geoffrey Hoffman Immigraton Clinic Director University of Houston Law Center
The Board of Immigration Appeals has issued a decision in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:
(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.
(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).
I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is “defective” under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.
Now the waiting game for SCOTUS intervention begins again. I’m hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.
-KitJ
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INA section 239(a) defines a Notice to Appear, the document used to initiate a removal proceeding in Immigration Court, as including, among other statutory requirements: “G)(i) The time and place at which the proceedings will be held.” Could not be clearer!
The requirements of section 239(a) are hardly onerous. Indeed, several decades ago, the Government had developed an “interactive scheduling system” that allowed DHS to specify the exact time, place, and date of a respondent’s initial Master Calendar hearing in Immigration Court.
However, rather than expanding and improving that system, DHS and EOIR decided to cut corners to accommodate the “uber enforcement” agendas pushed by Administrations of both parties over the past two decades. Their “haste makes waste, good enough for Government work approach” led them to ignore the requirements for a proper NTA and instead issue “piecemeal notices.”
This, of course, increased the unnecessary workload for already-stressed, overwhelmed EOIR Immigration Court clerks, resulted in many more defective notices, more unnecessary bogus “failures to appear,” more improper “in absentia removal orders,” more Motions to Reopen those wrongfully issued orders, and more appeals from improper failures to grant such motions. It also sent more of these preliminary matters into the Circuit Courts for judicial review.
Basically, it’s a microcosm of how an unconstitutional, non-independent “wholly owned court system” “pretzels itself” to accommodate DHS enforcement, misconstrues the law, and attempts to legitimize “worst practices” to please its political overlords, thereby creating endless and largely avoidable case backlogs — now at an astounding 1.4 million cases!
Even worse, when the backlogs finally capture public attention and “hit the fan,” EOIR, DHS, and DOJ disingenuously attempt to shift the blame and the consequences for their failures onto the VICTIMS: respondents and their long-suffering, often pro bono, attorneys! The incompetents at EOIR then cut even more corners and issue more bad precedents misconstruing the law in an attempt to cover up their own wrongdoing and that of their political masters. The latter’s understanding of how to run an efficient, due-process oriented, fair and impartial court system could be put in a thimble with space left over!
The vicious cycle of unfairness, injustice, and incompetence at EOIR continues endlessly, toward oblivion.
As Kit cogently points out, better interpretations, ones that complied with the statute and could be tailored to achieve practical solutions were available and actually submitted to the BIA. The BIA, as usual, brushed them off in favor of trying to please DHS and avoid both the statutory language and the Supremes’ clear direction.
So, something that a properly comprised BIA, composed of true progressive immigration experts and practical scholars, could have solved in a legal and practical manner, will undoubtedly head to the Supremes for a third time. We might not know the result for years, during which the BIA’s bad interpretation will generate additional potential backlog as well as unjust removals.
Attorney General Merrick B. Garland Announces Appointment of David Neal as Director of the Executive Office for Immigration Review
WASHINGTON – Attorney General Merrick B. Garland today announced the appointment of David L. Neal as the Director of the Executive Office for Immigration Review (EOIR) at the Department of Justice.
“The Justice Department’s commitment to a fair and efficient immigration court system, governed by due process and the rule of law, is exemplified by recent policy changes and our pursuit of significant additional resources,” said Attorney General Garland. “David Neal brings invaluable experience that will help further EOIR’s mission.”
The EOIR director is responsible for the supervision of the Chairman of the Board of Immigration Appeals (BIA), the Chief Immigration Judge, the Chief Administrative Hearing Officer and all agency personnel. EOIR has more than 2,300 employees in its 69 immigration courts nationwide, at the BIA and at EOIR headquarters in Falls Church, Virginia. As provided in the President’s Budget Request for FY 22, EOIR anticipates increasing its immigration judge corps from 535 today to 734 by the end of the next fiscal year.
Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations. Mr. Neal served in multiple other capacities at EOIR, including as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge and Assistant to the Director.
Prior to his tenure with EOIR, Mr. Neal served in the U.S. Senate Judiciary Committee as chief counsel of the Subcommittee on Immigration. Mr. Neal began his legal career as the Director of Policy Analysis at the American Immigration Lawyers Association and also worked for a law firm in Los Angeles, representing immigration cases before the former Immigration and Naturalization Service, the State Department, the Department of Labor and EOIR.
Mr. Neal received his Bachelor of Arts from Wabash College in Crawfordsville, Indiana, Master of Divinity from Harvard University’s School of Divinity and his Juris Doctor from Columbia Law School. Mr. Neal is a member of the District of Columbia and New York bars.
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David thus becomes the first EOIR Director to have served as both BIA Chair and Chief Immigration Judge, as well as briefly as an Immigration Judge.
Congratulations and good luck to David in his new position! It’s going to take a monumental effort, extraordinary management ability, creativity, and lots courage and determined due-process-best-practices-oriented leadership to straighten out the godawful legal, professional, and administrative mess in America’s most unfair and dysfunctional court system, now running a largely self-created 1.4 million case backlog.
Will he be able to hold off the politicos at DOJ and finally put an end to the DOJ-generated “Aimless Docket Reshuffling” (“ADR”) that has been the major cause of the 1.4 million case backlog at EOIR that has gown up over the last two decades of mismanagement at DOJ and EOIR? Will he be able to end the reprehensible officially-sanctioned “victim shaming” and cowardly “blame shifting” that has been heaped by the DOJ and EOIR on those suffering from its defective administrative practices over the past two decades?
If, as Garland claims, 200 new Immigration Judge positions will be added by the end of FY 2022, will David be able to institute merit-based Immigration Judge hiring that 1) involves public input from those who actually practice before the Immigration Courts, e.g., the private bar; 2) gives appropriate credit to “practical scholars” in immigration, human rights, and civil rights with clearly-established records of independent thinking and unswerving commitment to due process for individuals; 3) appropriately honors and weighs experience gained actually representing individuals, particularly asylum seekers, in Immigration Court, and 4) removes demeaning “production quotas,” limitations on docket management, and unnecessary restrictions on public scholarship, writing, and teaching which have made the job intentionally unattractive to many of the “best and brightest” progressive candidates from the private immigration and human rights sector. Will he actually go out and actively recruit a broader, more diverse, and more representative candidate base for IJ hiring, rather than using “insider procedures” that don’t reach or encourage many of the best candidates for these important jobs?
HINT: More “gimmicks,” like “dedicated dockets,” continued “Mickey Mouse” 🐭 uber enforcement “production quotas,” and appointments of judges who have never represented an individual in Immigration Court won’t do the trick! That is being proved every single day, beyond any reasonable doubt!
Nor will being at war with the National Association of Immigration Judges (“NAIJ”) and their leadership further due process. NAIJ leaders are the only ones at EOIR who have been providing meaningful professional training over the past four years of darkness and ignorance at EOIR.
They, along with the Private/NGO/Clinical Bar and OPLA Assistant Chief Counsel have the best and most practical ideas on how to fix EOIR! David would be wise to give them all “seats at his table,” and listen carefully to their views, rather than attempting to “lock them in a dark cellar,” as was the practice of the Trump immigration kakistocracy that effectively destroyed EOIR!
Since “built to fail” enforcement-generated non-solutions are the things EOIR appears “wedded to,” David is going to have to persuade Garland and his lieutenants to radically change course. Can he get them to treat Immigration Courts as “real courts,” controlling the lives of “real human beings,” folks like you and me, in dire need of real judicial administration and real progressive expert judges, to get out of EOIR’s current “death spiral.”☠️ Or, will we see a continuation of “Dred Scottification” of women and people of color, along with substandard trial judging, defective appellate review, and lousy biased precedents that end up creating more problems than they solve? 🤮 Only time will tell!
Hon. Andrea Saenz Appellate Immigration Judge, BIA PHOTO: immigrantarc.org
Here’s Andrea’s bio:
Andrea Sáenz
Andrea Sáenz [was] Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services. NYIFUP is New York’s first-in-the-nation immigration public defender program representing detained immigrants facing removal. Prior to joining BDS in 2016, Andrea was a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, teaching, litigating, and working on the advocacy that grew NYIFUP at the city and state levels. Andrea has previously worked as an Immigration Staff Attorney at the U.S. Court of Appeals for the Second Circuit, a judicial law clerk at the Varick Street Immigration Court in Manhattan, an Equal Justice Works Fellow at the Political Asylum/Immigration Representation (PAIR) Project in Boston, and a high school ESL teacher. She teaches and trains widely on criminal immigration, detention, and litigation issues. Andrea graduated from Harvard Law School cum laude in 2008 and received her B.A. in English from the University of California, Los Angeles in 2002.
KEY QUOTE:
Andrea Sàenz, Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services
“Our platform calls for universal representation of immigrants facing deportation, because when the stakes are often literally life, death, or permanent family separation, no one should be deported simply because they couldn’t afford an attorney. We need to change, shrink, and defund the deportation system and reinvest in our communities. ICE enforcement, detention and other cruel immigration policies tear apart families, and we urge the Biden administration and the new Democratic majority congress to listen to our neighbors’ voices.”
Congratulations, Andrea! As one of my esteemed Round Table colleagues said: “Incredibly great news. I couldn’t think of anybody better and more deserving!” Nor can I!
This is great news for American Justice and for the NDPA. It’s even better news for the long suffering victims of perverted justice at EOIR and their courageous attorneys, like members of the NDPA, who have fought in the trenches for due process, human rights, and human dignity against an intentionally rigged and gamed system designed to deny all three of the foregoing. Andrea also has “EOIR creds,” having been a JLC at the Varick Street Immigration Court.
Finally, someone who has witnessed the waste, unfairness, illegality, and human carnage of failed policies enabled by EOIR’s feckless, tone deaf, careless, and complicit performance of their life-determining quasi-judicial duties. This breaks the scandalous two-decade plus exclusion of the “best and brightest” progressive expert judges from the BIA, the nation’s highest immigration and human rights tribunal, that has helped reduce due process and justice for women and people of color before EOIR to a “sick joke!”
I know that’s it’s impossible for any one person, no matter how brilliant, hard-working, and dedicated, to change the anti-asylum, anti-due process, anti-gender-fairness “culture” encouraged @ EOIR by the past Administration and, to date, not effectively repudiated by Garland. But, it is important that the voice of reason, practicality, due process, fundamental fairness, and humanity once again be heard at EOIR!
We all hope and trust that others will follow in your footsteps, Andrea, and eventually form the “new majority” of a much, much better Immigration Judiciary: That the properly generous, sensible, and humane view of asylum law established in Cardoza-Fonseca and Mogharrabi will again become the guiding lights of immigration jurisprudence rather than being parroted (but not followed), mocked, and dishonored by those whose job it is to protect individual Constitutional, legal, and human rights from Government overreach: That “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” once again becomes the vision of our Immigration Courts at all levels!
Speaking in behalf of the NFPA, we all appreciate the dedication, hard work, consistent excellence, and intellectual and moral courage it took for Andrea to put herself forward and be a pioneer for the better Immigration Judiciary of our future! On behalf of a grateful NDPA and an appreciative Round Table, thanks, congratulations again, and may the forces of due process guide you and be with you forever!
The Biden administration has condemned abuses at the border – while maintaining the policies underlying these abuses. That’s beyond cynical
Published:
06:22 Thursday, 23 September 2021
Follow Moustafa Bayoumi
You’ve probably seen a photograph haunting the internet this week: a white-presenting man on horseback – uniformed, armed and sneering – is grabbing a shoeless Black man by the neck of his T-shirt. The Black man’s face bears an unmistakable look of horror. He struggles to remain upright while clinging dearly to some bags of food in his hands. Between the men, a long rein from the horse’s bridle arches menacingly in the air like a whip. The photograph was taken just a few days ago in Texas, but the tableau looks like something out of antebellum America.
The image is profoundly upsetting, not just for what it portrays but for the history it evokes. What’s happening at the border right now puts two of our founding national myths – that we’re a land of liberty and a nation of immigrants – under scrutiny. To put it plainly, we don’t fare well under inspection.
US border patrol agents on horseback search for migrants trying to enter the United States along the US-Mexico border. Photograph: José Luis González/Reuters
. . . .
Without review, it’s impossible to know who is facing real threats of persecution when returned to Haiti. The United Nations human rights spokesperson, Marta Hurtado, said that the UN “is seriously concerned by the fact that it appears there have not been any individual assessments of the cases”. Why does the Biden administration not share her concern?
One has to wonder if the same policies expelling Haitians from the US today would be in effect if those arriving at the border were Europeans or even Cubans. If history is any guide – for decades, the US privileged Cubans over Haitians and other Caribbean peoples in immigration matters – the answer is no.
It’s one thing for the Biden administration to condemn abuses conducted by its own government that recall the worst parts of our national history. But it’s quite another to do so while maintaining the policies that enable those abuses. That’s not just cynical. It’s despicable.
Moustafa Bayoumi is the author of How Does It Feel to Be a Problem?: Being Young and Arab in America
Foote’s sudden departure leaves a void in U.S. policy toward Haiti and adds another prominent, critical voice to the administration’s response to Haitians.
AP By Joshua Goodman and Matthew Lee, September 21, 2021
The Biden administration’s special envoy to Haiti has resigned, protesting “inhumane” large-scale expulsions of Haitian migrants to their homeland wracked by civil strife and natural disaster, U.S. officials said Thursday.
Daniel Foote was appointed to the position only in July, following the assassination of Haiti’s president. Even before the migrant expulsions from the small Texas border town of Del Rio, the career diplomat was known to be deeply frustrated with what he considered a lack of urgency in Washington and a glacial pace on efforts to improve conditions in Haiti.
Foote wrote Secretary of State Antony Blinken that he was stepping down immediately “with deep disappointment and apologies to those seeking crucial changes.”
“I will not be associated with the United States inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti, a country where American officials are confined to secure compounds because of the danger posed by armed gangs to daily life,” he wrote. “Our policy approach to Haiti remains deeply flawed, and my policy recommendations have been ignored and dismissed, when not edited to project a narrative different from my own.”
Two U.S. officials with direct knowledge of the matter confirmed the resignation on condition of anonymity because they were not authorized to discuss it publicly.
One official, who was not authorized to publicly discuss personnel matters and spoke on condition of anonymity, said that Foote had consistently sought greater oversight of Haiti policy and that the administration did not believe his requests were appropriate.
Foote’s sudden departure leaves a void in U.S. policy toward Haiti and adds another prominent, critical voice to the administration’s response to Haitians camped on the Texas border. The camp has shrunk considerably since surpassing more than 14,000 people on Saturday – many of them expelled and many released in the U.S. with notices to report to immigration authorities.
The White House is facing sharp bipartisan condemnation. Democrats and many pro-immigration groups say efforts to expel thousands of Haitians without a chance to seek asylum violates American principles and their anger has been fueled by images that went viral this week of Border Patrol agents on horseback using aggressive tactics against the migrants.
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Goodman reported from Miami, Lee from New York on the sidelines of United Nations General Assembly meetings.
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Read the complete article at the above link.
And, there are more “strange happenings” within the flailing Biden immigration/human rights bureaucracy.
Over at ICE, “Immigration pro” John Trasviña is out at OPLA after only a few months in office:
The Biden administration has appointed seasoned Boston immigration attorney Kerry Doyle to become its immigration enforcement agency’s top prosecutor.
U.S. Immigration and Customs Enforcement officials confirmed to GBH that Doyle, previously of Graves & Doyle, will be its principal legal advisor. The office she will lead is the largest legal program within the Department of Homeland Security, with over 1,250 attorneys and 290 support personnel.
The Office of the Principal Legal Advisor sends its prosecutors to litigate deportation cases before the Executive Office for immigration Review, the body that oversees the nation’s immigration courts.
Doyle has been an outspoken critic of the agency and has led many lawsuits against it.
She is a graduate of the American University Washington School of Law, and George Washington University. She started her career as a legislative assistant to former U.S. Rep. Bob Wise (D-W.Va.), and became an attorney for Legal Services for Vietnamese Asylum Seekers in 1993. She was managing attorney for the International Institute of Boston from 1998 to 2001, before founding Graves & Doyle with partner William E. Graves Jr.
The Boston-based firm handled a breadth of immigration issues, from citizenship, to business and family immigration, federal litigation, asylum, and deportation cases.
Doyle took the case of Iranian student Mohammad Shahab Dehghani Hossein Abadi, who was enrolled at Northeastern University and deported because it was assumed by Logan Airport border patrol agents that he would remain in the U.S. beyond the time frame of his student visa. She co-authored an op-ed in The Boston Globe about Abadi’s case, entitled “Customs and Border Protection gone rogue.”
Doyle has also been particularly outspoken against ICE on Beacon Hill, including one appearance in January 2020, where she called ICE “out of control” during a hearing over the Safe Communities Act, which would limit how state and local municipalities interact with federal immigration enforcement.
Doyle declined to comment on her appointment, asking GBH to speak with ICE’s media office, which did not return requests for comment.
Susan Church of Demissie & Church has known and worked with Doyle for over two decades.
“She actually taught me much of what I know about immigration law,” said Church. “I can’t imagine a better, more knowledgeable attorney to run that agency because she knows the immigration system in and out.”
Church and Doyle co-filed a 2017 federal lawsuit against former President Donald Trump with the American Civil Liberties Union after he banned entry to the U.S. from seven Muslim-majority countries.
The Office of the Principal Legal Advisor has control over whether immigrants are released from detention, what financial amounts — or bonds — are set for them to be released, or whether a lawsuit gets postponed.
“There will be a tremendous opportunity to craft policy procedures, rules and the like to make sure that immigrants receive a fair day in court and a fair hearing and have a fair shot at getting a life in the United States,” said Church.
Biden’s Department of Homeland Security has been criticized for continuing to keep immigrants detained with high bond amounts, but Church thinks Doyle’s appointment shows there may be a shift.
“I think it’s clear that the Biden administration is following the path of the progressive district attorney and installing somebody in charge who cares about safety issues, but also cares deeply about the rights and the protections for immigrants,” she said, referring to the recent nomination of Suffolk County District Attorney Rachael Rollins to be the U.S. attorney.
Carol Rose, executive director of the ACLU of Massachusetts, also applauded the pick. “We hope Kerry Doyle’s outstanding track record of fighting for immigrants’ rights continues in her new position at ICE,” Rose said. But, she added, “the ACLU remains committed to holding this and other government agencies accountable.”
The former principal legal advisor John D. Trasviña announced his retirement at the beginning of September.
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On one hand, Kerry Doyle is well qualified and presumably will work to restore professionalism, common sense, and humanity to what had been a misdirected, counterproductive, and totally out of control agency under Trump and his toadies.
But, there has to be more to Trasviña’s “retirement” than meets the eye. One does not normally accept a senior level policy position in a new Administration while planning to “retire” within a few months.
So, something else is going on here. Many of us had applauded the appointment ofTrasviña, a high profile, nationally respected, experienced expert in immigration, civil rights, human rights, and racial justice, at OPLA. During his short tenure, he issued helpful memos and guidance expanding the use of prosecutorial discretion (“PD”) at ICE. More aggressive and sensible use of PD is critical to controlling and eventually eliminating the largely Government-created 1.4 million case Immigration Court backlog.
Best wishes to Kerry in her new position!
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Immigration and human rights are a mess because Biden and his advisors ignored expert advice to move quickly and aggressively to restore robust refugee and asylum systems and to institute long overdue progressive reforms and personnel changes at EOIR. Right now, there appears to be neither an overall plan nor the dynamic progressive leadership and better Immigration Judiciary to carry it out.
It’s going to take more than a few intellectually dishonest expressions of “outrage” from Biden Press Secretary Jen Psaki and a bogus “investigation” of Border Patrol Agents who were only carrying out the cruel, inhumane, and racist policies developed and approved at the highest levels of the Biden Administration, to wipe out the images of the abuse of asylum applicants at our border and the deep-seated racial prejudices and biases it represents. 🏴☠️It’s all about dehumanization and continuing “Dred Scottification” of the “other”🤮☠️ — predominantly courageous, yet vulnerable, people of color!
