"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.
PROSECUTORIAL HISTORY: In 897, at the “Cadaver Synod,” Pope Stephen VI appointed himself to prosecute the corpse of his dead predecessor, Pope Formosus. (Spoiler alert: He got a conviction.) In 2023, DHS has decreed that prosecuting cases in person before EOIR is no longer worth their valuable time. PAINTING: Jean-Paul Laurens (1870) —Public Realm
Provided by a veteran immigration practitioner:
DHS No Appear 1DHS No Appear 2
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Notably, the four categories of “mandatory appearance” described by the Deputy Chief Counsel apply to only an infinitesimally small percentage of the roughly 2 million cases currently pending before the Immigration Courts.
Compare this with the treatment of the private bar who experience:
* Aimless reshuffling and rescheduling of their already-prepared cases, often without notice or with inadequate notice of the new hearing date;
* Arbitrary and capricious denials by some Immigration Judges of reasonable motions to continue;
* Possible disciplinary referrals for failure to appear at a scheduled hearing when listed as counsel of record.
Would the DOJ submit a similar missive to U.S. District Court Judges unilaterally announcing that they would only “selectively appear” in criminal and civil cases where the U.S. Government is a party? I doubt it!
So, what’s an Immigration Judge who does not want to perform DHS’s job for them to do? Contempt of court, you say? After all, the IJ’s authority to hold any party or counsel in Immigration Court proceeding in contempt is right there in plain language in the INA. See, INA section 240(b)(1).
Ah, but there is a catch! A big one! Although the contempt provision was added by Congress more than a quarter of century ago, AGs of both parties have steadfastly refused to promulgate the necessary implementing regulations.
Evidently, the theory is that while IJs might be qualified to issue potential death sentences to migrants in Immigration Court, they can’t be trusted to fairly and reasonably use their contempt authority on lawyers who, after all, are mostly U.S. citizens and whose livelihood might be adversely affected. Essentially, the life of a migrant is worth less than a monetary fine for contempt to a U.S. lawyer.
Additionally, there apparently was a special concern about giving IJ’s authority to regulate the conduct of their “fellow Government attorneys” at INS, and later DHS. After all, that would be interfering with another Government agency’s “sacrosanct” authority to regulate and discipline (or not) its own employees.
In many ways, under Garland, the Immigration Courts are losing what limited public respect the might still have possessed and accelerating the move backwards to an “inquisitorial model” to replace the “adversary model” for decison-making. Ironically, this reverses over a half century of efforts by Congress, reformers, and sometimes the Executive itself to make Immigration Courts function as part of the adversary system — in other words, like “real” courts of law.
As one informed expert commenter stated upon learning of this latest development:
As we have all been saying, (1) EOIR doesn’t view itself as part of an ecosystem which also includes ICE, the private bar, non-profits, law school clinics, interpreters, USCIS, etc.; and (2) EOIR is run at it’s upper level by mindless, gutless people suffering from a complete lack of imagination existing in a bubble.
As a practical matter, I assume ICE is strategically choosing not to appear in hearings before IJs who deny everything? If not, it could actually work in your favor. In truth, the UNHCR model doesn’t envision asylum being heard in adversarial hearings; as Paul has articulately stated, it sees asylum as a collaborative effort between adjudicator and asylum seeker.
For a “practical application” of the “collaborative effort” model promoted by the UNHCR, see Matter of S-M-J-, 21 I&N Dec. 722 (BIAS 1997).
Joshua Mutshaila slept in a shelter when he first arrived in Portland. Now he is studying political science at the University of Southern Maine.
Claudette Ndayininahaze could only get a cleaning job during her first years in Maine, despite extensive work experience and a degree in business administration. Now she runs a nonprofit to try to smooth the transition for other immigrant women and families.
Apphia Kamanda was one of the first students at Common Threads of Maine, a nonprofit that teaches skills needed for textile jobs. Now she leads the sewing school and teaches classes in multiple languages.
David Ngandu worked as a doctor in the Democratic Republic of Congo. He’s trying to be one again here.
They are among thousands of African immigrants who – often at great personal risk – fled perils they knew all too well at home for an uncertain future in this country. They settled in Maine, a state with a population that is 94% white and the nation’s oldest, and where businesses are increasingly struggling to find workers. They got multiple jobs, but their skills were still underutilized. Slowly and painstakingly, they built new lives, while often looking for ways to help others who came after them. In turn, they brought new life to their communities.
The Press Herald talked to a diverse group of people who came here from Africa about how they see their futures in Maine – and Maine’s future with more immigrants in it.
. . . .
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Read Megan’s complete article (last in a series) at the link.
Immigrants are a key part of Maine’s present and America’s future. There is a really great, positive, uplifting story out here to be told. Too bad that Biden Administration has such little interest in leading, promoting, and leveraging immigrant (asylum seeker) success and contributions. Huge “missed opportunity” for Dems!
Donald M. Kerwin, Senior Research Associate, University of Notre Dame
In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:
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Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
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The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
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The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
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The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
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The absence of a statute of limitations for civil immigration offenses.
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Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
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The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
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The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
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A past record of temporary judge reassignments and government shutdowns.
The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
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This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.
So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?
I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.
It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.
This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.
If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!
“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”
[Hats off yet again to superlitigator Raed Gonzalez!]
When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?
The BIA’s approach to statutory interpretation under Chevron tends to be one-sided in favor of DHS Enforcement. IMAGE: Wikimedia Commons
BIA HEADNOTE:
(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute is overbroad and indivisible with respect to the definition of “building” under New York law.
(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25(1)(d) of the New York Penal Law necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another and therefore constitutes an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F).
FOR THE RESPONDENT: Yuriy Pereyaslavskiy, Esquire, Albany, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy, Associate Legal Advisor
BEFORE: Board Panel: GOODWIN and WILSON, Appellate Immigration Judges. Concurring and Dissenting Opinion: BROWN, Temporary Appellate Immigration Judge.
CONCURRING AND DISSENTING OPINION: Denise G. Brown, Temporary Appellate Immigration Judge
I respectfully dissent from that portion of the majority opinion that holds that second degree burglary under section 140.25(1)(d) of the New York Penal Law is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F) (2018). As an initial matter, I have reservations that this case is an appropriate means through which to establish binding precedent on this issue as the Immigration Judge did not reach it. While the parties have had an opportunity to address the issue through supplemental briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our role to “review” questions of law de novo, 8 C.F.R. § 1003.1(d)(3)(ii) (2023), but there is no underlying decision regarding whether the respondent was convicted of an aggravated felony crime of violence for us to review here.
Further, I disagree with the majority’s analysis by which it concludes that a violation of section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. Section 140.25(1)(d) provides that a person is guilty of burglary in the second degree:
when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when
. . . [i]n effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime
…
. . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .
N.Y. Penal Law § 140.25(1)(d) (McKinney 2017). A crime of violence under section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F), is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (2018).
I disagree with the majority that second degree burglary under section 140.25(1)(d) includes as an element the use, attempted use, or threatened use of physical force against another person. In my view, second degree burglary under section 140.25(1)(d) does not include any element that requires the presence of a person other than the defendant. In the absence of an element that requires the presence of a person, the majority’s conclusion that this offense is a crime of violence is unavailing. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (“The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual.”).
The majority’s analysis heavily relies on case law involving robbery to support its conclusion that second degree burglary under this subsection is a crime of violence. But under New York law, robbery always involves forcible stealing from a person and burglary does not. In United States v. Ojeda, 951 F.3d 66, 71 (2d Cir. 2020), the Court of Appeals for the Second Circuit rejected the defendant’s argument that it was possible to commit New York first degree robbery with the aggravating factor of the display of an
apparent weapon without the use, attempted use, or threatened use of physical force. The court held that the defendant’s argument ignored the foundational element being aggravated, i.e., forcible stealing, which is defined in New York to include the use or threatened immediate use of physical force upon another person. Id. at 72. Forcible stealing is an element for every degree of robbery in New York and “that element categorically requires the use of physical force.” Id. Thus, New York robbery always includes as an element the use or threatened use of physical force against another person, regardless of whether an apparent weapon is displayed. Accordingly, the New York robbery statutes are distinguishable from the burglary statute at issue here, and thus the case law relied upon by the majority relating to robbery is not persuasive in this context. For the same reason, the case law cited by the majority relating to assault is likewise unpersuasive.
The majority also relies on the definition of “display” in the New York model jury instructions to conclude that a display of an apparent weapon must be in front of a person. The majority concludes that “display” in the context of section 140.25(1)(d) necessarily means a conscious display of an apparent weapon to a victim. “Display” as described by the model jury instructions does not constitute the use, attempted use, or threatened use of physical force against another person because, as the Supreme Court explained in Borden, “against the person of another” means “in opposition to” and expresses “a kind of directedness or targeting” rather than being akin to “waves crashing against the shore.” Borden, 141 S. Ct. at 1825–26. However, the language of the model jury instructions—i.e., describing display to be “manifest[ing] the presence of an object that can reasonably be perceived” as a weapon—does not require the type of directedness or targeting described in Borden. N.Y. Crim. Jury Instr. & Model Colloquies, Penal Law § 140.25(1)(d) (May 2018). The language instead appears to contemplate that a person be “the mere recipient” of the display. Borden, 141 S. Ct. at 1826.
Even if the majority’s conclusion were correct that display of an apparent weapon necessarily contemplates the presence of a person to perceive it and that it necessarily involved conduct directed at another person as contemplated by Borden—a conclusion not supported by the actual language of section 140.25(1)(d)—there is nothing in the statute that requires the person perceiving the display to be the victim of the crime, rather than a bystander or another defendant.
The majority’s conclusion that an offense under section 140.25(1)(d) is categorically a crime of violence also assumes that the crime a defendant intends to commit is necessarily a “confrontational crime.” But there is nothing in the statute that connects the display of an apparent weapon with
the crime the defendant has “intent to commit [in the building],” and thus nothing in the statute that requires the crime a defendant has “intent to commit [in the building]” to be a confrontational crime, as the majority concludes. N.Y. Penal Law § 140.25.
For these reasons, I am not persuaded by the majority’s conclusion that an offense under section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. I would instead conclude that it is not and that therefore the respondent is not removable as charged.
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Thanks for speaking out, Judge Brown, against the BIA’s one-sided approach to statutory interpretation that almost always favors DHS over better and more reasonable interpretations offered by individuals. Then, the Article III Courts compound the problem by giving “Chevron deference” to the BIA’s one-sided jurisprudence!
Dissent matters!
Here’s Judge Brown’s official EOIR bio:
Denise G. Brown
Attorney General Merrick B. Garland appointed Denise G. Brown as a temporary Appellate Immigration Judge in July 2021. Judge Brown earned a Bachelor of Arts in 1992 from the University of Michigan, Ann Arbor, and a Juris Doctor in 1995 from the Catholic University of America. From July 2007 to July 2021, she has served as an attorney advisor, Board of Immigration Appeals, Executive Office for Immigration Review. During this time, from March to September 2019, she served on detail as a Special Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Virginia, and from January to July 2017, she served on detail as a temporary Immigration Judge at the Headquarters Immigration Court, EOIR. From December 1999 to July 2007, she served as an Associate General Counsel at the Office of General Counsel, Department of the Air Force. Judge Brown is a member of the District of Columbia Bar.
My long-time friend and former EOIR colleague, Peg Taylor, now Adjunct Professor of Law at Maryland Francis Carey School of Law writes:
As you may (or may not) know, ILS runs a fellowship for young diverse lawyers who have an interest in international law. The benefits this fellowship offers include: generous entree to ILS substantive programs and conferences — including an allowance for registration, travel, and lodging; waiver of Section dues; liberal publishing opportunities; and speciality-specific mentorships/sponsorships with experienced attorneys.
ILS is currently accepting applications for the Fellows Program. See attached information/application. It would be great, if you would share this information either on immigrationcourtside or with potentially interested young lawyers or both. Applications are due to Angela Benson, ILS Director of Membership, Meetings, and Marketing – angela.benson@americanbar.orgon or before Monday, June 26, 2023.
Thanks so much. Best. Peggy
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2023-2024 ABA International Law Section Diversity Fellowship
About the Fellows Program
The ABA International Law Section (ILS or Section) proudly sponsors a generous Diversity Fellows Program (“Program”). The Program robustly supports the ABA’s policy of active involvement and participation of diverse lawyers in the ABA, the Section, the profession, and the justice system. See ABA Goal III (to promote full and equal participation). The Program is for young barred lawyers (under 36 years old with five years or less of legal experience) who have an interest in international law and come from diverse backgrounds – including diverse races, ethnicities, sexual orientations, and abilities/disabilities.
The application period for the term running from September 2023 to August 2024 is now open. Among the opportunities available to the 3-5 selected Fellows will be:
· abundant entrée to ILS substantive programs and conferences – including an allowance for registration, travel, and lodging;
· waiver of Section dues;
· specialty-specific mentorships/sponsorships with experienced attorneys;
· membership in a close circle of Fellows and alumni of the Fellows program;
· appointments to Section leadership positions; and
· liberal publishing opportunities.
Fellows will be assigned to substantive ILS Committees. The Committee Chairs will engage Fellows in all aspects of committee membership, including projects involving policy formulation and program development. The ILS’ Diversity Officer and Membership Officer and their respective Deputies will also work with Fellows, monitoring their progress and providing periodic reports to ILS’ Administration Committee.
Fellowship Eligibility
Successful applicants will demonstrate that they work in the international legal arena and/or that they have a deep interest in international law. They will further show that they are 36 years old or younger and at least one year out of law school. Applicants will also document that they have been admitted to a bar and that their admission took place less than 6 years prior to the date of their Program application. In furtherance of its goal to make the Fellowships available to a diverse group of young lawyers, application reviewers will take information regarding applicants’ race, ethnicity, disabilities (if any), and gender/sexual identities into account. See ABA Goal III.
If an applicant is not a member of the ABA or the Section at the time of application, such applicant will be required to become a dues-paying member of the ABA upon a grant of the Program application. The Section will, however, cover Section dues.
Fellows’ Responsibilities
During their Fellowship, Fellows will be required to produce specific deliverables, as directed by the ILS Diversity Officer. At a minimum, Fellows will: engage in active Committee participation, as the Section requires of all Section Leaders; regularly communicate with their Committee Chair, the Diversity Officer, the Membership Officer, and their Section mentor and complete progress reports.[1] Fellows will be required to sign a Fellowship Agreement with ILS. Should a Fellow fail to comply with the terms of the Fellowship, the Section will automatically stop all support – including but not limited to financial support.
Application Requirements
Applicants for the Section Diversity Fellows Program must submit:
· a cover letter explaining why the Section should consider their application;
· a fully executed application, addressing all the application questions;
· two letters of recommendation; and
· documentation of the requisite bar membership.
Complete applications must be submitted to Angela Benson, ILS Director of Membership, Meetings, and Marketing at angela.benson@americanbar.org. on or before Monday, June 26, 2023.
2023-2024 ABA International Law Section Diversity Fellowship Application
Applicant Information:
Name:
Firm/Company:
Address:
City: State: Zip:
Country:
Email:
Area of Practice:
Are you an ABA member? Are you a member of any Sections?
Yes ____ No ____
Are you a member of the Section of International Law?
Yes ___ No ___
Describe your interest in being a Diversity Fellow of the Section of International Law and how you plan to accomplish your goals and be of service to the Section (Max 500 words).
Describe your Section of International Law activities including leadership roles, programs that you have organized, Section meetings attended. If you are not a Section member, then describe which committees you hope to join, how that will support the advancement of your career in international law, and how you are planning to achieve that goal through this Fellowship within the Section. (Max 500 words) http://www.americanbar.org/groups/international_law/committees.html
Describe your leadership and participation roles in other bar associations including state, local, minority or foreign bars and your involvement in international law related activities/practice/etc. (Max 500 words).
7. Please describe what diversity and inclusion and international law initiatives and programs you have been involved in and how, through this Fellowship program, you are planning to reach out to other lawyers of diverse backgrounds and have them involved in the Section of International Law. (Max 500 words).
Tina Turner, the raspy-voiced fireball who overcame domestic abuse and industry ambivalence to emerge as one of rock and soul’s brassiest, most rousing and most inspirational performers, died Wednesdayat age 83.
“Tina Turner, the ‘Queen of Rock & Roll’ has died peacefully today at the age of 83 after a long illness in her home in Küsnacht near Zurich, Switzerland,” her family said in a statement Wednesday. “With her, the world loses a music legend and a role model.” A cause of death was not immediately available, though Turner had a stroke and battled both kidney failure and intestinal cancer in recent years.
Starting with her performances with her ex-husband Ike, Turner injected an uninhibited, volcanic stage presence into pop. Even with choreographed backup singers — both with Ike and during her own career — Turner never seemed reined in. Her influence on rock, R&B, and soul singing and performance was also immeasurable. Her delivery influenced everyone from Mick Jagger to Mary J. Blige, and her high-energy stage presence (topped with an array of gravity-defying wigs) was passed down to Janet Jackson and Beyoncé. Turner’s message — one that resounded with generations of women — was that she could hold her own onstage against any man.
But Turner’s other legacy was more personal and involved a far more complex man. During her time with Ike — a demanding and often drug-addled bandleader and guitarist — her husband often beat and humiliated her. Her subsequent rebirth, starting with her massively popular, Grammy-winning 1984 makeover Private Dancer, made her a symbol of survival and renewal.
Born Anna Mae Bullock on Nov. 26, 1939, Turner grew up in Nutbush, Tennessee, a rural and unincorporated area in Haywood County chronicled in her song “Nutbush City Limits.” According to Turner, her family were “well-to-do farmers” who lived well off the business of sharecropping. Still, Turner and her older sister Ruby Aillene dealt with abandonment issues when their parents left to work elsewhere.
. . . .
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Read the complete obit at the link.
Cathy and I, along with friends, heard Ike & Tina Turner in concert in Madison, WI in 1971! Certainly one of the all-time greats!
This class will cover the constitutional and political framework for the U.S. Immigration System, enforcement and adjudication agencies, immigrants, nonimmigrants, removals and deportations, detention and bond, immigration hearings, judicial review, grounds for removal and inadmissibility, “crimmigration,” immigration reform, “Chevron” deference, refugee and asylum status and other international protections. It will also include analyzing major immigration cases like INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (well-founded fear) and Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (female genital mutilation).
A bipartisan duo of Hispanic women Tuesday introduced the most robust immigration proposal to date this Congress, a significant collaborationas a new generation of lawmakers pushes for meaningful reform of the nation’s immigration systemafter decades of failed attempts.
For six months, Reps. Maria Elvira Salazar (R-Fla.) and Veronica Escobar (D-Tex.) have been quietly negotiating on key issues where Republican and Democrats have previously sought changes, while leaning on their lived experiences as lawmakers representing border districts with majority Hispanic constituencies.
The result is a roughly 500-page bill called the Dignity Act that, among other things, would provide billions of dollars for border security measures, create pathways to citizenship for some undocumented migrants already in the United States, update the legal immigration process, and establish “humanitarian campuses” on the U.S. border that would process asylum claims in 60 days.. . . . .
Salazar and Escobar were joined at a news conference Tuesday by four original co-sponsors who are all women: Reps. Hillary J. Scholten (D-Mich.), Kathy E. Manning (D-N.C.), Lori Chavez-DeRemer (R-Ore.) and Del. Jenniffer González-Colón (R-Puerto Rico.). Rep. Michael Lawler (N.Y.), a vulnerable Republican representing a Democratic-leaning district, signed onto the measure late Monday and also attended. Rep. Adriano Espaillat (D-N.Y.) also signed on Tuesday.
. . . .
The bill’s introduction comes after House Republicans passed a border security bill this month along party lines; House Republican leaders have said since last year that consideration of a large-scale immigrationoverhaul would not happen until a border security plan had passed the chamber.
Asked whether broad immigration legislation could be considered this year, Majority Leader Steve Scalise (R-La.) appeared to suggest last week that it would not happen until a border security plan is signed into law.
“We’ve got to first start with border security,” he said, before adding that it would mean getting such a bill to the president’s desk. “If we get that done, then you can start talking about the interior problems that exist.”
. . . .
“Nothing is off the table,” Salazar said when asked about the prospects of a discharge petition, a procedural effort that would allow them to bypass the regular pathway for a bill to reach the floor.
Escobar then responded, “All it takes to make this happen is 218 people in the House of Representatives saying that they’re ready for a real solution.”
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Read the complete article at the above link.
The myth that “border security” is unrelated to taking a more practical, humane, and realistic approach to migration generally shows how determined GOP leadership is NOT to address immigration problems in a fair and constructive manner and to “tune out” those interested in a potential bipartisan solution.
For those who don’t already know her, Rep. Hillary Scholten is, to my knowledge, the only EOIR attorney ever elected to Congress and has, therefore, seen how broken and in need of reform our system is at the “grass roots level.” So, her support of this measure is very significant.
Here’s a summary of the bill, known as “The Dignity Act of 2023:”
I haven’t seen the full text of the bill. But, from my perspective, the most disappointing aspect of this effort is the apparent failure to deal with the #1 most “solvable” and long, long overdue aspect of due process and fundamental fairness affecting immigration and the overall U.S. legal system: Creation of an independent, Article I U.S. Immigration Court focused solely on due process, fundamental fairness, and best practices!
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
Executive Director Opening Plenary Remarks CLINIC Convening 2023
May 17, 2023
Good afternoon, dear friends. My name is Anna Gallagher and I have the honor of leading CLINIC as executive director. It is such a pleasure to be here with you all as we officially begin our first in-person Convening since 2019.
Looking out at the sea of faces in front of me, I am filled with gratitude to finally be able to come together to engage with one another, to listen, learn and gather strength for the work ahead in support of our immigrant brothers and sisters.
Even just being in your presence I feel a sense of renewed hope and energy. I am so looking forward to the next few days, and I am certain that you will be reignited to take on the important work ahead.
In a moment I will welcome our wonderful panel of Affiliate experts, but right now I want to take a moment to recognize this moment we’re facing and my hopes for this year’s CLINIC Convening.
You all, of all people, know that immigrant communities are facing truly unprecedented challenges – and I do not use that word, unprecedented, lightly.
With the lifting of Title 42, and the camps of men, women and children along the border desperate to find welcome on the other side; the proposed USCIS fee increases which threaten to put immigration benefits out of reach for many; the newly announced delays for foreign-born religious workers and special immigrant juveniles; and, perhaps above all, our warming planet and the outbreaks of violence which force many more people to migrate around the world – these are extremely challenging times for migrants in our country and around the world.
Several months ago, the New York Times featured an op-ed that has stuck with me, entitled, “The Rich World Has a Shockingly High Tolerance for Cruelty.”
It was about how rich nations are more willing than ever to let migrants languish at their borders in sub-human conditions rather than create safe pathways for migration or address the conditions causing people to flee.
It was about how the promises that nations made after World War II to respect the dignity and rights of those who are fleeing have been eroded and now, on a practical level, forgotten.
When I read this article, in my mind I was transported back to the time I spent in North Africa several years ago, working with migrants as a representative of Jesuit Refugee Services.
1
I interviewed migrants who had traveled for 18 months or more to try and find safety in these countries bordering Europe. I got to know some of the migrants, who called me “grandma” – a term of endearment, as my hair was grey.
While I was talking to some of them, they showed me their hands, which were scarred with wounds. When I asked them what happened, they said their hands were repeatedly pierced while climbing barbed wire to get through to safety.
Hearing this, my heart broke – as it has many times over the years.
The idea that we are using barbed wire to keep out our fellow human beings is inconceivable, yet true. Our immigrant brothers and sisters stand at our gates, begging for our aid, and we build barbed wire fences that pierce their hands.
Many wealthy nations are founded on a concept of all human beings being equal in dignity, but we do not act like it.
As we gather in Arizona, I know we are all mindful that these kinds of camps that the op-ed author is speaking of are just several hours away on the border. We also know that immigrant communities’ dignity is denied not only in these camps, but all over the country in the various places we’ve come from.
We must be clear, this is not an “other side of the world problem,” it is our problem. It affects all of us, in our integrity as people of faith and conscience, and as a reflection of our society.
And yet today, as I recall that New York Times op-ed, and the sense of frustration and despair I felt while reading it, I feel a surge of hope.
I want you to look around the room. Look at your neighbor to your left and right. YOU are the hope that fills my heart, and YOU are the hope that reignites me in our work.
As we gather here today, I am in a room full of people who DO act like all human beings are equal. Those who spend their precious time – often too much of their time, working long hours – trying to advance the truth that every person is precious, valuable, and deserving of a safe and dignified life.
That’s why being in your presence gives me such hope. I am reminded that the CLINIC network is full of holy people.
That is why our gathering here together, and throughout this week, is so powerful: we are, to borrow the words of Bishop Seitz of El Paso, working to be a “creative counterexample” to the culture of fear and hostility, to be a network that is slowly creating a new culture of solidarity and hospitality.
At CLINIC, we also are bolstered by our faith that we do not do this hard work alone. The spirit of God is inspiring us and pushing us forward, giving us strength and magnifying our efforts, especially when we are overwhelmed by the need in front of us.
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Our faith also acts as a mirror for us, forcing us to keep evaluating whether we are truly reflecting the gospel truth of God’s concern for all people.
To maintain this faith, and to maintain the energy to be this creative counterexample, we need one another. Our network is sustained through the support, advice, and solidarity we demonstrate to one another.
Throughout the next few days, we will take the time to step back, to reflect on our work and learn and share new strategies, information, and tips for the very practical day-to-day work of supporting immigrant clients and communities.
We know that this practical work – the forms, the bureaucracy, the nitty-gritty details – changes and saves lives. So how well we can do it matters, which is why we gather to learn and grow.
We also gather to enjoy one another – to laugh, share stories, and reconnect with beloved colleagues and friends.
So I also hope that over the next few days you will have some fun!
Thank you for coming here to CLINIC Convening and for your dedication to this work. I am so honored to be alongside all of you this week, and all days.
Now, I am pleased to introduce our panelists for our opening plenary, Preparing for the Lifting of Title 42: Key Insights from our Network. When we decided on “reunited and reignited” for our theme this year, we knew we wanted to do something different for our opening conversation.
This “Network Fireside Chat” will be an opportunity to highlight the work done by our network throughout the United States. During this conversation, you’ll hear how Affiliates in three distinct geographical regions are rising to meet the needs of our immigrant and refugee brothers and sisters – especially during this increased time of uncertainty.
From the Border region, Joel Enriquez-Cazarez will share about the work of Jewish Family Service of San Diego.
As a transit city, Carolina Rivera will share how Catholic Charities of Dallas assists our immigrant brothers and sisters.
And Yer Vang from Catholic Charities Archdiocese of Dubuque will give an interior city perspective of welcome.
Now please join me in welcoming our keynote panelists to the stage…
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Thanks, my friend, for a lifetime of service to due process, fundamental fairness, and social justice, and for speaking out as the “powers that be” and the “powers that wannabe” go into cowardly retreat and hide in fear from the needs and rights of humanity!
Except, perhaps, in Florida and other GOP-controlled “mini-reichs” where hate, censorship, and persecution of vulnerable populations have become official policy! Is this REALLY the way the next generations of Americans want to live and be remembered by history? PHOTO: Public Realm
Last Wednesday, Florida Governor Ron DeSantis — who is expected to announce his campaign for the presidency as soon as tomorrow — signed a gaggle of bills targeting LGBTQ youth.
In addition to those he had already signed into law — including a “Don’t Say Gay” measure barring teachers from mentioning sexual orientation or gender identity and another prohibiting gender-affirming care — his latest laws expand the state’s prohibition on classroom instruction about sexual orientation and gender identity, require that students use bathrooms associated with their sex assigned at birth, prohibit adults from taking children to see drag shows, and bar teachers from asking students about their preferred pronouns.
Another of the bills DeSantis just signed into law allows the state of Florida to take transgender minors away from parents who help them obtain gender-affirming care.
In raging against gender-affirming care, DeSantis lied that “they’re literally chopping off the private parts of young kids.” In fact, genital surgery is rarely, if ever, done under the age of 18. It’s not even all that common for adults. DeSantis is lying about it to scare people.
Meanwhile, the Republican presidential frontrunner has made it clear that trans people have no place in his vision of America:
“I will sign a new executive order instructing every federal agency to cease all programs that promote the concepts of sex and gender transitions at any age. I will ask Congress to pass a bill establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth.”
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My friends, these scare tactics are dangerous. Recent analysis found a 70% increase in hate crimes against LGBTQ Americans between 2020 and 2021, as the surge of these anti-LGBTQ bills began. And that’s only counting hate crimes that get reported. The years 2020 and 2021 each set a new record for the number of trans people murdered in America.
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The cruelest irony is that these Republican bills pretending to protect children are putting our most vulnerable children at greater risk.
LGBTQ kids are more than four times likelier than non-LGBTQ kids to attempt suicide, especially transgender young people.
Gender-affirming care reduces that risk. That is why it is life-saving.
“Don’t Say Gay” laws also strip away potentially life-saving support. A teacher who positively and respectfully discusses sexual orientation and gender identity won’t turn a straight kid gay. But such a discussion will make an LGBTQ student 23% less likely to attempt suicide.
The tragic truth is that “Don’t Say Gay” laws and bans on gender-affirming care are causing more young lives to be needlessly lost.
Laws that threaten to take transgender minors away from their families if they are receiving gender-affirming care will cause these young people even more trauma.
If they were really worried about children undergoing life-altering medical procedures, they wouldn’t pass abortion bans that force teens to give birth or risk back-alley procedures.
What the GOP’s vendetta against the LGBTQ community really is, is a classic authoritarian tactic to vilify already marginalized people.
This is how fascism takes root.
We need to see DeSantis’s bills and similar bills signed by Republican governors across the land for what they are — attempts to use bigotry and hate to elevate their political standing.
And we need to see this Republican attack on LGBTQ Americans for what it is: a threat to all of our human rights.
[My thanks to Allan Piper for work on a version of today’s letter.]
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Meanwhile, as Caleb Ecarma reports for Vanity Fair, Florida teachers have had enough:
“For the first time, I’ve actually started talking to my investment guy about retirement,” Michael Woods, a teacher who has spent decades working in exceptional-student education for public schools in South Florida, tells me. “I’m a 30-year veteran who showed up every day, hardly calls in sick, but now I don’t want to be a teacher in Florida.” Most troubling to Woods—a gay man who teaches science and biology courses—is the ballooning list of laws that police classroom material, discriminate against LGBTQ+ educators and students, and restrict sex education. “They’re all so vague,” he says of DeSantis’s new laws. “Even things that used to be easy like human reproduction [for ninth graders], I now have to check with my co-teacher and ask, ‘Is this okay? Are we still allowed to teach this?’”
On Wednesday, the governor rubber-stamped a batch of four bills restricting LGBTQ+ rights and expanding the Parental Rights in Education Act—or, as critics have dubbed it, the “Don’t Say Gay” law. The new measures, which will be enforced at public and charter schools, ban educators from discussing sexual orientation or gender identity in pre-K through eighth grade, and place new, vague restrictions on sex education, including that such instructions “be age-appropriate or developmentally appropriate for students in accordance with state standards.”
This latest salvo was a bridge too far for many teachers, according to Rebecca Pringle, the president of the National Education Association, the largest labor union in the US. “I just talked to one teacher yesterday who is leaving and she said, ‘I can’t teach like this,’” Pringle tells me. “‘I can’t teach while worrying that they’re coming after my license, or I’m committing a felony.’ They’re leaving in protest.” Pringle says she has tried to convince teachers to stay in Florida, given the dearth of teachers in the state. But that discussion has been difficult to have, she says, with teachers who are facing death threats or harassment.
Case in point: One fifth-grade teacher in West Florida said this month that she was placed under investigation by the Florida Department of Education for showing her class Disney’s Strange World, a children’s movie that features an openly gay character. Jenna Barbee, the teacher at hand, said she played the film to give students a post-exam “brain break.” But when a local school board member learned of the showing, Barbee said, she was reported to state officials. Barbee told CNN that she had already submitted her resignation before the incident, in protest of the “politics and the fear of not being able to be who you are” in Florida public schools.
It appears that no educator has yet been prosecuted or charged under Florida’s “Don’t Say Gay” law or its legislation restricting books in schools. But as fears mount over their future implementation, parents are already witnessing the effects of shorthanded schools and overcrowded classrooms. “Last year, I saw several teachers leave, and we had substitutes for three, four months of the year,” says Reagan Miller, a parent in West Florida whose two children attend public school. “We had a teacher who taught advanced math at our middle school for years and years—he just left to go be a 911 operator,” she tells me, “which blows my mind, that becoming a 911 operator would be less stressful than being a teacher.”
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My experience on the bench was that almost all the transgender individuals coming before me had attempted suicide on one or more occasions or expressed suicidal thoughts. To a person, they just wanted to be accepted, protected, and to live their own lives without harassment, interference, or fear. These are all things that today’s cowardly GOP “Brown Shirt Pols” would deny them.
The next generation is going to have to decide whether they want to live in a Nazi-inspired police “hate state” where individual freedoms are meaningless and cruelty, bullying, suppression, and betrayal are the norms. If not, then they had better get busy removing every GOP politico from every office — from local school boards and city councils to the Presidency.
How soon we forget the lessons of 1939! Perhaps that’s part of the GOP’s war on truth, education, and history!
The NAACP’s Board of Directors has issued a travel warning about Florida that accuses the state, and pointedly Gov. Ron DeSantis, of being “openly hostile toward African Americans, people of color and LGBTQ+ individuals.”
“Before traveling to Florida, please understand that the state of Florida devalues and marginalizes the contributions of, and the challenges faced by African Americans and other communities of color,” the notice issued Saturday states.
The civil rights organization specifically accuses DeSantis, a possible 2024 Republican presidential candidate, of aggressively attempting to erase Black history and “restrict diversity, equity, and inclusion programs in Florida schools.”
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Read Nina’s complete report at the link.
“Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873” — White Nationalist snowflakes like DeSantis feel diminished and threatened by the truth about American history and the role of race.
The “anti-woke agenda” touted by DeSantis is a very thinly disguised euphemism for “overtly racist!” That, decades after folks like Gov. George Wallace and Sen. Strom Thurmond unabashedly made hate, segregation, and racism the “centerpieces” of failed presidential bids, racists like DeSantis are openly campaigning on the same basic platform, and enacting it in their “mini-reichs,” should be deeply disturbing to younger generations of voters who will have to live with the stupidity, ignorance, cynicism, and hate promoted by these immoral GOP pols. It’s a race backwards and to the bottom that can only end in a complete catastrophe for our nation and the world!
Also remember: It all started with the dehumanization and false demonization of migrants. Many, including too many Dems, have been unwilling to stand up against it! That’s how the GOP’s “destroy America” agenda gains traction!
Women find “trial by ordeal” can be the order of the day at Garland’s BIA:
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-004160Woman 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
Dan Kowalski reports for LexisNexis Immigration Community:
CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.
“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”
Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!
When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Lindsay writes on Linkedin:
Barometer of whether an asylum system is functioning is not “keeping the numbers low” at the border. We expected as T42 ended to see a temporary uptick due to pent up demand, but seeing the opposite indicates new deterrence measures are making asylum inaccessible to those who need protection the most.
It is obvious to those of us on-the-ground that despite no “lines” at the ports of entry there are many people here in Tijuana desperate to seek protection in the US, as evidenced by crowd at our Immigrant Defenders Law Center legal clinic today. People want to avail themselves of a safe, fair and orderly system.
This is currently impossible.
There were more than 200 people at the shelter, mostly families with small kids. When we asked whether or not people had been able to register with CBPone, most raised their hands that they had. When we asked whether they had an appt, only four had successfully made one. 4 out of 200.
We encountered excruciating cases like this asylum seeking mom & her daughter w/ severe autism. She asked if there is a special process for ppl like her, given her daughter needs medical attn, but we have to tell her to just keep trying the app. She has been waiting for months.
We continue to encounter cases where asylum seekers are unable to register with CBPone app at all. We finally registered a mom traveling alone w/ 2 babies via one of our atty’s phones, and now she can try for an appt. She has family in Los Angeles area who are waiting for her.
For people suffering from PTSD & other mental health conditions related to the horrors they fled, the constant state of anxiety waiting for an appointment is hell. One of the moms told me that every night she & her daughter cry and pray that it will be the day they can finally get help.
I am immensely proud of our San Diego based cross border team for continuing to show up and keep fighting despite the odds.
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Well said, Lindsay! Thanks for all you and your colleagues do for due process in America!
James “Jim” Crow Symbol of American Racism — Why are the Biden Administration and some Dem pols embracing this guy when it comes to asylum seekers — primarily individuals of color, merely seeking to exercise their legal rights and to be treated fairly and with human dignity?
Border Lines has published one of the best analyses of the Title 42 charade and its ongoing impact on our Government’s cruel, lawless, and misguided border policies. Given the cosmic impact of bad border policies, they have made it available “outside the paywall.”
Ultimately, Title 42 has ended, but the asylum restrictionist approach that it was the apex of has clearly not. For now, there’s no return to normal Title 8 processing — which, as regular readers of our historical analyses know, has never been impartial or apolitical, but at least provided some semblance of access and cursory due process. Title 42 is dead. Long live Title 42.
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This version of the transit ban is also, like its predecessor, under acute legal jeopardy. The ACLU has already sued to stop it, and some legal analysts are predicting that, given the precedents and legalities involved here, the administration’s efforts to make it compliant — including the very limited exceptions — won’t be enough. The CBP One exception is, after all, just another version of metering, another policy that was struck down. If there’s an injunction or even a final ruling and the transit ban goes down, then what? There’s at least some likelihood that word will spread and the surge of arrivals that was expected in the immediate aftermath of Title 42 will actually materialize then. How does the administration respond? Does it rush to enact an overlapping asylum restriction, as the Trump administration so often did? It’s hard to say.
A federal judge in Florida recently issued a restraining order blocking a Biden policy that would have allowed the administration to issue parole to some arriving families and instruct them to check in with ICE instead of placing them directly in removal proceedings, removing another option to control the immigration court backlog and avoid detaining families. It seems relatively unlikely that the administration will be happy to accept a defeat of its asylum restrictions that will then force it back into the uncomfortable position of detaining more families. In the meantime, market analysis site Seeking Alpha has upgraded the stock of private detention conglomerate GEO Group to “strong buy” in anticipation of strong profits from growth in detentions, not to mention GEO’s piece of all sorts of surveillance technologies used in the administration’s alternatives to detention programs.
In the meantime, an eight-year-old girl died yesterday in Border Patrol custody after having what is vaguely described as a “medical episode.” The machine churns on.
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Read the complete article at the link.
There’s lots of of “disturbing stuff” here. But, perhaps the worst and most discouraging is the role of the Biden Administration and some Dem pols in aiding, abetting, and even encouraging this 21st Century version of Jim Crow.
The poor and superficial reporting of the “mainstream media” — which performed like an adjunct Fox News — also has had life-threatening consequences. Inaccurately and cynically treating the Title 42 farce as “the norm,” and the return to applying some semblance of the rule of law (the Refugee Act has been in effect for more than four decades) as some type of radical “change” also has contributed mightily to the human tragedy and carnage at the border. Highly irresponsible!
