"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.
Like the 1980 and 1994 boatlift crises, the present one may be in part tacitly encouraged by the Havana regime, which, like its allies in Managua and Caracas, is closely aligned with Russia.
It is in these governments’ interest to export dissent and stir political trouble for President Biden — as the boatlifts did for his Democratic predecessors Jimmy Carter and Bill Clinton.
Notably, the exodus from Cuba accelerated after its ally Nicaragua ended its visa requirement for Cubans, making it far easier for the latter to reach the Central American isthmus — and continue on to the border.
Cuba, Nicaragua and Venezuela do not take their citizens back if deported from the United States, which renders the Biden administration all but powerless to deter the flow.
All of the above should inform the debate about “root causes” of migration, which, like so many of its predecessors, the Biden administration has promised to address. There is a related argument over the United States’ own culpability in the plight of people living under the three left-wing regimes. Washington has sanctioned each one for gross human rights violations, the most recent being Cuba’s nightmarish crackdown on protests that broke out in July 2021 and a similar round-up of dissidents by President Daniel Ortega’s regime in Nicaragua.
Even when the United States targets them to limit collateral damage, these measures can affect ordinary people and not just the regimes; obviously, too, millions have left non-communist countries in Latin America for a better life in the United States.
What is nevertheless undeniable is the historic debacle represented by the departure of over 6 million from Venezuela, whose population peaked at 30 million in 2015, when the main phase of the exodus began. That is a fifth of the entire country.
For Cuba, 200,000 emigrants in a year represents nearly 2 percent of its 11.3 million population. In Nicaragua, the 200,000 who have left since Ortega’s crackdown began four years ago, mostly for the United States and next-door Costa Rica, amount to 3 percent of a 6.6 million population.
U.S. sanctions, under which — for example — this country was still Cuba’s second-largest supplier of food imports in 2020, cannot possibly account for so many people “voting with their feet” against the systems they live under. The foreseeable failure of subjecting the economy to top-down control and denying people basic freedoms can.
The exodus is thus a tremendous compliment to the United States and other democratic capitalist countries. We should appreciate it. Meanwhile, it imposes duties: to treat migrants humanely and incorporate as many of them as we lawfully and realistically can; and to oppose more effectively the despotism that is the root cause of their desperation.
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Read the complete article at the link.
Growing up in the 50’s and 60’s in Wauwatosa, WI, then a GOP bastion, I remember that the party of Ike and Nixon never saw someone fleeing from Communism or lefty dictatorships that they didn’t swoon over. East Germans, Hungarians, the “Chang Gang” from China, Cubans, Russians, all were welcomed and viewed not only as great assets to America (which they were) but also as strong empirical evidence of the superiority of democracy over left-wing dictatorships!
In elementary and high school, I had good friends whose families had fled East Germany and Hungary. They were all hard-working folks who left much behind but “reinvented themselves” in a new environment.
Now,the forces of xenophobia, hate, fear, and the hope of exploiting the foregoing for political gain have replaced more realistic and welcoming attitudes in MAGA land. It’s up to the rest of us to show that these “negative values and bad attitudes” don’t represent the real America!
Not to mention that even the Trump administration (the Trump administration!) found that refugees and asylees are a net positive for public budgets over the long run. That is, despite typically arriving penniless, these immigrants ultimately pay more in taxes than they receive in government benefits.
Contra DeSantis’s insinuations about immigrant moochers, these are people who want to work and become economically self-sufficient. That’s presumably why DeSantis’s own henchmen promised fictitious jobs to lure the asylum seekers onto flights.
. . . .
If Republican officials actually wanted to reduce the number of people coming to the border without advance permission, there are plenty of things these politicians could do. They could push for expansion of guest-worker visas, for instance. Or more funding for the refugee admissions program. Or really any other legal, orderly pathway to come to the United States.
After all, the main reason there is such a crush at the border — and why the asylum system in general is so overwhelmed — is that right now this is one of the very few legal ways to get to America.
Yes, I said legal: The families being hoodwinked and shipped around the country like chattel on chartered buses and flights are here lawfully, based on what’s been publicly reported. They turned themselves in upon crossing the border precisely so that they can apply for asylum, as is their legal right. The federal government has screened them, and granted them humanitarian parole while they pursue their asylum cases in court.
It’s not an ideal system. Or an especially fast one. It would be much better to fix the rest of our broken legal immigration system so that those other, more orderly pathways are available. Especially the pathways that offer quicker access to work permits, given America’s current massive labor shortages.
It’s true that Democrats have also put forth relatively little effort to fix these problems. In some cases Democrats seem fearful of appearing too pro-immigrant, having apparently bought into the GOP lore that deep down Americans are xenophobes. But even what little Democrats have tried to do they generally can’t do without 60 Senate votes. Which Democrats don’t have.
Democrats need Republicans to cooperate on immigration reform, and Republicans won’t. Even when those reforms are coupled with investments in border security that Republicans claim to want. The GOP would rather keep around a dragon they can perpetually promise to slay one day — and better yet, to taunt and torture for a while, in public, first.
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Read Catherine’s complete article at the link. Interesting that Catherine understands so much so well, while those in the Biden Administration charged with immigration and human rights policy are so clueless, timid, and inept!
In the meantime, the Dems have done little to make the current laws relating to refugees and asylum work. The much-hyped “asylum rule changes” at DHS have had little, if any, discernible positive impact. EOIR is a national disgrace — continuing the “death spiral” that accelerated during the Trump kakistocracy. The refugee system remains in shambles. The proposed 15,000 allocation of refugee admissions for FY 2023 to Latin American and the Caribbean is an insult and a “signal” to other receiving nations in the area that we are not serious about addressing the problem. There is no rational resettlement program for asylum seekers crossing the border, thus providing an unnecessary opening for the “performative cruelty” of clowns like DeSantis and Abbott.
None of these things are “rocket science” or “budget busters.” They just require knowledgeable leadership, values, and the courage to act on them. Apparently, faced with the cruelty and desecration of values by the “MAGA GOP,” the Dems think that “all they have to do is show up, smile, and mumble platitudes” to seem like the only choice for Americans who believe in democracy. Maybe — but I wouldn’t count on it!
I think that Catherine “hit the nail on the head” with this assessment of the spineless policy officials driving refugee and asylum policies in the Biden Administration: “In some cases Democrats seem fearful of appearing too pro-immigrant, having apparently bought into the GOP lore that deep down Americans are xenophobes.” Cowardice on immigrants, immigrants’ rights, and racial justice has become an endemic problem in the Democratic Party.
A.G. Merrick Garlands gratitude to America for accepting his family doesn’t extend to those suffering injustice in his wholly owned “Immigration Courts” — still churning our “Trump-era” restrictionist nonsense and “managed” in a way that promotes maximum dysfunction and inefficiency!
Attorney General Merrick B. Garland Administers the Oath of Allegiance and Delivers Congratulatory Remarks at Ellis Island Ceremony in Celebration of Constitution Week and Citizenship Day
New York, NY ~ Saturday, September 17, 2022
Remarks as Delivered
It is my great honor to welcome you as the newest citizens of the United States of America. Congratulations! Please be seated.
Just now, each of you took an oath of allegiance to the United States. In so doing, you took your place alongside generations who came before you, many through this very building, seeking protection, freedom, and opportunity.
This country – your country – wholeheartedly welcomes you.
I know that you have made sacrifices in order to be here today. You should be proud of all you have accomplished. I am proud of you.
You have made the decision to become Americans not only at an important time in our country’s history, but on an important day.
It was 235 years ago on this day, September 17, 1787, that 39 delegates to the Constitutional Convention representing 12 states signed their names to the Constitution of the United States.
Like you, those who signed the Constitution were relatively new Americans. In fact, America had only existed for 11 years at that point.
Like you, those Americans had great hopes for their own future – and for the future of their new country.
In the preamble of the Constitution, those Americans enumerated those hopes: to form a more perfect union; establish justice; ensure domestic tranquility; provide for the common defense; promote the general welfare …
And importantly – in their words – “to secure the Blessings of Liberty to ourselves and our Posterity.”
Like them, each of you has now made a commitment not only to this nation and your fellow Americans, but to the generations of Americans who will come after you.
In that commitment, you have given your posterity – and the posterity of all of us – a precious gift.
I know how valuable that gift is because it is the same one my grandparents gave my family and me.
I come from a family of immigrants who fled religious persecution early in the 20th Century and sought refuge here in the United States. Some of my family entered right here, at Ellis Island.
My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.
Two did not make it. Those two were killed in the Holocaust.
If not for America, there is little doubt that the same would have happened to my grandmother.
But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.
I am also married to the daughter of an immigrant who came through the Port of New York in 1938.
Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.
That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.
The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.
The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.
The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.
Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.
The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.
The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.
The United States is no stranger to what our Founders called the risk of faction. Alexander Hamilton and James Madison wrote about it in the Federalist Papers. George Washington warned against it in his Farewell Address.
Overcoming the current polarization in our public life is, and will continue to be, a difficult task.
But we cannot overcome it by ignoring it. We must address the fractures in our society with honesty, with humility, and with respect for the Rule of Law.
This demands that we tolerate peaceful disagreement with one another on issues of politics and policy. It demands that we listen to each other, even when we disagree. And it demands that we reject violence and threats of violence that endanger each other and endanger our democracy.
We must not allow the fractures between us to fracture our democracy.
We are all in this together. We are all Americans.
On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.
That we will honor and defend our Constitution.
That we will recognize and respect the dignity of our fellow Americans.
That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.
That we will do what is right, even if that means doing what is difficult.
And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.
I have often thought about what members of my family felt as they came through buildings like this. And I have often thought about what their decisions meant for my own life.
My family story is what motivated me to choose a career in public service. I wanted to repay my country for taking my family in when they had nowhere else to go. I wanted to repay the debt my family owes this country for our very lives.
My family members who immigrated here have now long since passed. I regret that I cannot express to them how grateful I am for the gift they gave me in choosing to come to this country.
So let me thank each of you.
Thank you for choosing America as your home. Thank you for the courage, dedication and work that has brought you here.
Thank you for all you will do to help our country live up to its highest ideals.
Thank you on behalf of a nation that is fortunate to call you as its citizens.
And thank you upon on behalf of the generations of Americans who will come after you. Thank you.
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The man lives in a “reality-free bubble” on the 5th Floor of DOJ. He must also “tune out” the many Circuit Court decisions lambasting the BIA’s sloppy decisions, anti-due-process “culture,” and wrong anti-immigrant legal rulings issued in his name. He seems incapable of understanding how the unfathomable mess he presides over at EOIR affects the health and welfare of those practicing before it!
I’m curious as to how denying access to counsel, denying reasonable continuances, failing to follow precedent, using improper “one judge” review, intentionally misconstruing “notice” statutes, and applying legally incorrect standards, all subjects of recent Circuit “blowbacks,” fit into Garland’s view of equal justice for immigrants in America. How does “Aimless Docket Reshuffling on steroids” fit in with his concept of due process and professional court administration?
Know a man not by his words, but by his deeds. In Garland’s case, it’s an ugly picture.
The phrase “America First” fell rapidly into disrepute during World War II, largely because the America First Committee (whose most prominent spokesman was Charles Lindbergh) had urged non-intervention and appeasement and been accused of anti-semitism and fascist sympathies. It was then consigned to temporary obscurity, but not everyone forgot. The slogan was periodically recalled to articulate resurgent right-wing nationalism, often explicitly white nationalism, from Gerald L.K. Smith, once known as “America’s most notorious antisemite,” who founded the America First Party in the 1940s, to Barry Goldwater, hailed by his supporters as an “America First” politician and described by the conservative National Review in 1963 as standing for “States’ Rights, strict construction, limited government, private enterprise, and America first, last and always.” It was used to describe David Duke and George Wallace, before being resuscitated by Pat Buchanan (“We are not isolationists. We simply believe in America first, last and always,” he declared in 2000) in his presidential campaigns. A certain Donald Trump flirted with making his own run under Buchanan’s Reform Party banner, then brought the phrase triumphantly back a century after Wilson popularized it.
[Competing visions of the American Dream are driving Democrats and Republicans apart]
Now the America First Policy Institute declares that its slogan is “America First, Always” and that its immigration policy will mean no longer putting “America last” — echoing the language of a March 1922 editorial from what was then the nation’s most popular weekly, the Saturday Evening Post, as it harangued its readers about the “immigration problem” caused by “our policy of putting the alien and his interests first, and America last.”
These “America First” initiatives go beyond attempts at excluding the “alien” that were already divisive, and futile, a century ago. One of the most prominent spokesmen for “America First” today is Nicholas Fuentes, a white Christian nationalist who organized the America First Political Action Conference earlier this year. Fuentes was also present at the storming of the Capitol, as were his “Groyper” followers, waving his “AF” flags. Fuentes declared: “It is the American people, and our leader, Donald Trump, against everybody else in this country and this world.” That is certainly what “America First” has meant in the past, as its leaders promise that only they can put America first, by inflaming divisions against nearly every other human being. But it is “America First” that endures, not its erstwhile leaders — and its history offers a pretty good indication of what to expect from Trumpism without Trump.
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I highly recommend that everyone read Sarah’s full article at the link.
Immigrants are almost always the first target of this “confederacy of cowards” — because they are most vulnerable. U.S. courts have traditionally been unwilling to effectively enforce the constitutional and legal rights of “the other.” But, as pointed out in the article, the hate and resentment continues to pour out against additional groups and individuals until “almost every other human being” becomes a target.
We see it today in Virginia Governor Glenn “Junkman” Youngkin’s recent cowardly and unconstitutional “targeting and bullying” of transgender school kids under the ridiculously bogus rubric of “parents rights.” Just where does the “right” of neo-fascist parents to bully the children of others come from?
The Fourth Circuit Court of Appeals in the Grimm case in 2020 already has found that “Junkman’s” scofflaw attempt to force transgender kids to use the wrong bathroom likely will be held unconstitutional. But, the Constitution and laws have never been anything but “convenient props” for America Firsters!” Compare the courage of the Grimm plaintiff with the ugly cowardice of the “Junkman” and his followers. (This following “Junkman’s” outrageous trip to Maine to campaign for notorious racist GOP gubernatorial candidate Paul LePage).
But, the Fourth Circuit might be an aberration. Often, getting reactionary judges who lack the character and guts to stand up against demonization of their fellow humans helps fuel and protect the “America First” movement from accountability. That’s certainly been at the core modern GOP mis-governance, and the Dems have been painfully “slow on the uptake” in countering it.You have only to look at Merrick Garland’s astounding mis-handling of the reactionary, weaponized, and totally dysfunctional Immigration “Courts” under his control to see just how slow!
In the end, it will be up to the upcoming generation to decide what kind of America they want to live in: An America that respects and honors the dignity, worth, and human potential of all of its inhabitants and serves as a model of tolerance and inclusion for the rest of the world? Or, an America where a minority of extreme right wing authoritarians are at war with the rest of us and, indeed, with humanity itself. Your choice!
The John McCutcheon version of Woodie Guthrie’s song “Deportees” shows how deeply ingrained “Dred Scottification” is in our country’s often unconstitutional, impractical, and sometimes immoral approach to immigration enforcement.“De-personification” of “the other’” — treating them as numbers, statistics, even “beds” or “apps” without names, faces or rights — and making up vile myths and lies about them, all whileexploiting their labor — is still at the heart of the anti-American White Nationalist agenda!
Social justice activism is an important multi-disciplinary endeavor — here we see how law, education, religion, civics, history, broadcast journalism, performance art, music, technology, political science, economics, language, culture, & communication all work together to thwart hate and lies;
More undergraduate institutions need to be making these links and insisting that the true history of American Immigration — with all its triumphs and warts — becomes a staple of education;
Many of those tone-deaf (or worse) politicos pushing the far right agenda of hate, lies, and racism reflected in the defeated amendments are elitists masquerading as “bogus populists” who got the benefit of education at some of the top law schools and universities in the nation. Whatever happened to the teaching of basic legal ethics and responsibilities to society? The Jim Crow agendas of today differ little from those of the pre-civil rights era of the 20th Century. These are NOT debates between legitimate “differing viewpoints,” but essentially questions of truth vs. lies, hate v. tolerance, integration v. exploitation;
The White Nationalist Right is taking over school boards and local governance in the false name of “parents’ rights” — actually meaning the rights of far right parents to impose their minority religious doctrines and false social doctrines on others. The fight for social justice begins at the local level where where teaching of truth and legitimate debates are being drowned out by disgruntled, anti-democracy, empowered White Nationalist theocrats who claim they want liberty but actually are trying to impose autocracy and minority rule;
But over the airwaves and online, another story is playing out: an absolute torrent of ads meant to frighten and anger voters about immigration.
A new report from the pro-immigration group America’s Voice seeks to document this ongoing phenomenon. One of its key conclusions: “Republicans have made their nativist narrative a top messaging priority.”
In the world of Republican campaign ads, very little has changed since the xenophobic Trump presidency, and some of what’s in these ads is truly repellent.
Three themes dominate these ads, the report finds, and they are all wildly inflammatory and profoundly dishonest: The Biden administration has created “open borders,” undocumented immigrants are responsible for fentanyl overdoses and a full-blown “invasion” is underway.
The borders are anything but open; the Biden administration is pursuing, arresting and deporting people seeking to come to the United States by the thousands. The vast majority of fentanyl that comes in is smuggled through ports of entry in cars, boats and planes, not carried by undocumented immigrants. And as for an “invasion,” that’s no more true now than it was when Trump warned that caravans were about to overrun the country.
But the Republican ads portray horror and chaos — usually with a non-White face. Some ads show pictures of young Black men walking through rivers on their way to “invade” America, with language suggesting this “invasion” brings “terrorists, drugs and crime.”
Other ads say the Biden administration is supposedly “importing 20 million illegals and giving them amnesty” (the image for that one is people in Haiti), which can only be stopped by “a declaration of invasion.”
In some ads it’s not just an open border but a “wide open border” — once again, illustrated with pictures of Haitians. In others we’re told that “human, sex and drug trafficking are out of control because of Democrat governance,” while Democratic candidates “refuse to oppose Biden’s open border policy.”
Of course, there is no open border policy, but why should the fact that it doesn’t exist stop Democrats from opposing it? That just shows how sinister they are, these ads say, because they “want to destroy this country.”
All of this captures something essential about this political moment. For months, Republicans were certain they could spread fears of chaos in order to ride to victory in the midterms. They’d run on crime and immigration, not just to excite the base but also to scare unsettled swing voters.
Yet the dynamic unexpectedly shifted, and now disorder and, dare we say it, crime — as in the potential crimes of Donald Trump and many Jan. 6 defendants — are not necessarily playing in the GOP’s favor. The overturning of Roe v. Wade has unleashed another form of chaos and a host of new dangers threatening women. And all of these things are energizing Democrats.
. . . .
“Republicans are indulging in the worst kind of White nationalist rhetoric,” Frank Sharry, the executive director of America’s Voice, told us. “And an issue they thought would win over swing voters is at best a base mobilizer for voters they already have.”
What makes this all really ugly, however, is that the messaging remaining under the radar — which Democrats bear some blame for, having gone quiet on the issue — allows it to continue mostly unexamined. This, even though its worst incarnations — such as “great replacement theory” — have inspired recent mass shootings.
Along these lines, it’s worth keeping an eye on Blake Masters, the GOP Senate candidate in Arizona. He has trafficked heavily in great replacement theory and has run truly vile ads on immigration, including one that features machine-gun fire at the border. Yet in a place President Biden won by a whisker that’s also a border state, Masters is trailing by a meaningful margin.
As Sharry told us, Masters’s whole “declare an invasion” line “is not working, in a state where one-third of the voters are independents and border security is a top issue.”
Yet whether it works with independents and swing voters, this foul sewage has been flowing unabated. And it will surely continue to do so.
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Read the complete article at the link.
The idea that individuals seeking to find a U.S. official who will listen to their asylum cases would be trucking along large amounts of fentanyl in their backpacks is facially absurd.
Ending scofflaw Trump failures to follow asylum and refugee laws at the border and beyond would not halt all illegal entries. No policy will do that, nor has there ever been one that even came close, although illegal incursions have risen and fallen over the years.
But, fair refugee and asylum programs that actually interpreted the applicable domestic and international laws correctly (instead of the “any reason to deny, no matter how wrong attitude” still widespread and tolerated at both Mayorkas’s DHS and Garland’s DOJ) and generously granted protection as was the intention behind the UN Refugee Convention in the first place would certainlyencourage large segments of those now forced to irregularly cross the border instead to apply abroad or at legal ports of entry.
It would also facilitate the USG working with NGOs, the UNHCR, states, and localities to get individuals needed assistance so that their legal claims could be processed in a fair, efficient, and timely manner. The latter objectives seem to have totally eluded both Mayorkas and particularly Garland. They continue to “blow off the experts” and flounder with mindless, “designed to fail,” “deterrence-focused” gimmicks. Talk about a lose-lose!
Also to state the obvious, if CBP were less focused on apprehending individuals who pose no real threat to the U.S., but merely want a fair shot at applying for legal protection — something our laws require that Trump annihilated, the Federal Courts have flubbed,and Biden has done a substandard job of re-instituting — they would have time to focus more resources on drug and human smugglers.
Instead, in perhaps one of the dumbest and most wasteful juxtapositions in recent American history, the CBP focus is on “apprehending” (a term I use lightly, since many individuals “want” to be “found,” so they can get access to the system otherwise improperly denied to them by CBP) thosemerely seeking to comply with the law! To do that, CBP ignores or misses many of those who actually pose threats. At the same time, both DHS and DOJ use methods, attitudes, and legal interpretations that themselves undermine fundamental fairness, the rule of law, and humanity itself.
Immigrants are America’s past, present, and future! Indeed, climate change, rising oceans, drought, starvation, transportation improvements, globalized commerce, wars, religious bigotry, pandemics, and other factors beyond the control of any one government will continue to drive worldwide migration.
Building walls, prisons, hate, resentment, and constructing bogus “invasion myths” will not change the reality of human migration and the necessity to adopt to and harness it in a smart, humane, realistic manner. Doing the opposite, will only diminish us as a nation and inhibit our own chances for future prosperity. But, in the end, it won’t stop human migration.
Isabela Dias Staff Writer, Immigration & Social Issues Mother Jones PHOTO: TwitterProfessor Andrew S. Rosenberg Assistant Professor of Political Science U of Florida PHOTO: Website
“Undesirable Immigrants: Why Racism Persists in International Migration”
. . . .
In the book, you dispute the assumption that the right to border control and to exclude foreigners is an inherent feature of sovereign states. Instead, you frame it as a “modern consequence of racism.” Why do you see it that way?
The nation-state is a relatively modern invention on the scale of human history. Today, we have this conventional wisdom floating around that it is the natural right and duty of nation-states as sovereign entities to be able to restrict foreigners and have these really hard borders—and that it’s that ability that makes a state what it is. Actually, if you go back in time and look at the international legal thought that emerged from the 15th through the 19th centuries on what it actually means to be a state, the commonly held assumption that people like the late Justice [Antonin] Scalia and others talk about, is actually an invention of the 19th century. In the 16th and 17th centuries, the great thinkers of international legal jurisprudence or of state theory either thought that states had a right or an obligation to be hospitable to foreigners and to allow them free passage into their territory or, at most, it was up for raucous debate. It was only in the 19th century, when immigrant-receiving countries like the United States began receiving a large influx of racially different outsiders like the Chinese, that this presumption that sovereign states have a right and an obligation that can be tied back to their status as sovereign states to restrict outsiders emerged.
People like Texas Governor Greg Abbott seem to invoke that supposed inherent right when they describe migrants at the border as an “invasion.”
Precisely. These types of “declarations of war” are one of the clearest examples of this ideology seeping into public debate, which leads everyday people to create this idea that migrants are undesirable outsiders who are not fit for, or are undeserving of reaping the benefits of living in the United States or participating in our society.
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Read the complete interview at the link.
The myth of the “undesirable immigrant” — at the heart of the anti-immigrant rabble rousing of Trump, Miller, Bannon, DeSantis, Abbott, Cotton, Hawley, etc. — has deep roots in American racial history.
I’ve said it many times: There will be neither racial justice nor equal justice for all without justice for immigrants (regardless of status). Laws like the Refugee Act of 1980, that very explicitly make arrival status irrelevant to access to a fair legal process, have been intentionally misinterpreted and misapplied by right-wing judges from the Supremes all the way down to the Immigration Courts.
Advocates for civil rights, womens’ rights, LGBTQ+ rights, voting rights, disability rights, and other fundamental rights that have been unlawfully restricted or diminished, usually, but certainly not exclusively, by the right, who continue to ignore the primacy of dealing with the intentional unfair, racially biased treatment of migrants do so at their own peril!
Between 2015 and 2020, about fifty bodies were recovered each year in Brooks County, according to an S.T.H.R.C. report. Then came Title 42, a policy enacted by the Trump Administration at the start of the COVID-19 pandemic that closed ports of entry and blocked most avenues for asylum claims, ostensibly for public-health reasons. The policy, which is still in place in a modified form, has increased business for smuggling cartels and spurred people to cross in more dangerous places. “Before Title 42, the calls we got used to be, like, eighty-per-cent apprehended, twenty-per-cent missing,” Canales said. “Now it’s flipped—it’s more like twenty-per-cent apprehended, eighty-per-cent missing.” So far this year, there have been nearly seventy recoveries of remains in Brooks County, putting 2022 on track to be the deadliest year on record.
. . . .
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Read Rachel’s entire report, directly from the border, at the link.
So, before the Trump Administration’s bogus, racist “invocation” of Title 42, 80% of migrants came to the border or were easily apprehended close thereto — most probably because they turned themselves in to seek asylum through the legal system. And, lets not forget, this was with an already badly broken, fundamentally unfair, asylum legal adjudication system intentionally biased and “loaded” against legitimate refugees seeking protection!
Smart, honest public policy would have improved asylum adjudication at USCIS and at EOIR to quickly recognize and grant, with the assistance of NGOs and legal assistance groups, the many cases of legitimate refugees so that they could take their rightful, legal places in our society.
Additionally, by taking refugees seeking legal determinations “out of the equation,” enforcement against those seeking to evade legal processing — certainly a much, much smaller “universe” than is “out there now” — would have been enhanced. Business would have declined for smugglers, as those seeking protection would have been motivated to use a humane, fair, functioning legal system rather than being forced into “do it yourself” refuge!
You don’t have a genius to figure this out — just not be motivated solely by racism like Stephen Miller and his Trump regime cronies! Better qualified — non-Jim Crow righty — Federal Judges would also produce more humane, honest, and rational results.
Additionally, by running a legitimate asylum system, and complementing it with an honest, robust, legal refugee system for Latin America, the Caribbean, and Africa, we would finally have sound data on how many of those seeking to enter at the Southern Border are entitled to immigrate as legal refugees and how many are non-refugees. That’s something on which we now have no reliable information— just myths and anecdotes, many provided by racist restrictionists and nativists with neither expertise in asylum law nor any real interest in the rule of law at the border.
As a result of Title 42, and the unqualified “Jim Crow” Federal Judges, GOP nativist AGs, and their apologists (including some in the media who repeat or republish, without critical examination, GOP racist lies about the border), we now have a deadlier than ever border; the legal immigration system at the border has been functionally abolished and replaced with an underground, extralegal system; the U.S. Government has ceded control of border migration policy to cartels and smugglers; and the job of the Border Patrol — forced to spend time apprehending legal refugees who seek only the protection to which they are legally entitled — has become impossible.
That’s what happens when we let GOP nativist pols, overt racists, and bad, right wing Federal Judges take over the immigration policies that were actually enacted by Congress — a key part of which are legitimate refugee and asylum systems and a fair, functioning, expert Immigration Court. Right now, we have NONE of the foregoing. And, innocent migrants at the border are too often paying the price — with their lives!
“Enforcing the law” does NOT mean unfairly, unwisely, and illegally abrogating the legal asylum system and fair adjudications in Immigration Court at the border. It means fixing the legal asylum system including USCIS Asylum Offices. Perhaps most of all, it means reforming and replacing where necessary the broken, dysfunctional, leaderless, and non-expert Immigration Courts and a BIA that continues to misinterpret asylum and protection laws on a daily basis. We need a BIA of real judges with the expertise and guts to establish fair, humane, correct, positive precedents and to rein in or remove from asylum cases those Immigration Judges who are “programmed to reject, not protect!”
I, along with many others, watched the Brittney Griner travesty unfold. I saw the irony. President Biden was rightfully blasting the outrageous “kangaroo court” show trial that passes for justice in Russia. But, at the same time, he, Harris, and Garland are basically running a farcical “Russian style” dysfunctional immigrant “justice” system at EOIR and calling it a “court!”
Perhaps, in addition to blasting the Griner farce, President Biden, VP Harris, and AG Garland need to take a closer look at the “Russian-style” justice being inflicted on migrants in their wholly-owned Immigration “Courts” — which particularly target women, children, and migrants of color seeking justice under US laws. Indeed, many are still being arbitrarily returned without ANY process at all! Others get “off the wall” denials of their valid claims. Its this REALLY any way for a self-proclaimed “nation of laws” to operate? https://www.flickr.com/photos/rasputin243/ Creative Commons License
Bill Russell of the Celtics guards Wilt Chamberlain of the 76ers in a 1966 game. PUBLIC DOMAIN
By Paul Wickham Schmidt
Special to Courtside
August 1, 2022
The 1950s. Black and white TVs. NBA coverage more or less an afterthought on winter weekend afternoons when nothing else was on. The eight team NBA, comprised of teams representing the East and Upper Midwest only — including such major Metropoli as Syracuse, Rochester, and Ft. Wayne. Even the introduction of the “shot clock” in 1954 failed to “jazz up” the game.
Mostly, it was played by a bunch of White guys named Clyde, Bob, George, Dolph, Paul, Dick, Easy Ed, Red, Carl, Cliff, and Larry. They were talented athletes, to be sure. But, mostly what they did was dribble and shoot. Some launched two-handed “set shots” — hard to fathom in 2022! Defense and athletic moves were an afterthought, at best. Competent, but fundamentally boring. Something you watched if you were stuck at your Grandmother’s or maiden aunt’s apartment in Milwaukee after lunch.
The major problem, of course, was integration — or more accurately the lack thereof! Although Alexandria, VA native Earl Lloyd had become the first African American to play in the NBA in the 1950, and helped the Syracuse Nationals win the NBA championship in 1955, Blacks remained woefully under-represented in terms of their talent. Indeed, many of the best African-American players chose to play with the “barnstorming” Harlem Globetrotters because of the ingrained racism of the NBA.
That changed in 1956 when future Hall of Fame Coach Red Auerbach of the Boston Celtics convinced his team to draft and sign Bill Russell, who had just won two NCAA Championships with the San Francisco Dons (they reached the “Final Four” only once since, in 1957) and an Olympic Gold. Suddenly, the distinctive parquet floor of the Boston Garden took life. Blocked shots, rebounds, and passes to teammates in green, as well as some close in hook shooting by the athletic 6-10 center became the “norm.”
The Celtics quickly became my favorite NBA team. The short-lived Milwaukee Hawks had decamped to St. Louis some years earlier. The Milwaukee Bucks of Kareem Abdul Jabbar and Oscar “Big O” Robertson were many years in the future. Interestingly, 6’8” Milwaukee Braves pitcher “Big Gene” Conley was a backup for the first few years of Russell’s Celtic career.
Behind Russell, the Celtics dominated the NBA for the next 13 years, winning championships in 11 of those seasons. He was the player-coach during the last three seasons of this run, becoming the first African American coach in the NBA.
In 1960, Russell’s “Modern Big Man” rival, Wilt “The Stilt” Chamberlain moved from the Globetrotters to the Philadelphia Warriors of the NBA. This set up one of the greatest individual matchups in American sports history. Although Wilt won many of the individual “statistical” battles, Russell won the “war” hands down. A Wilt-led team bested the Celtics only once for the NBA Championship during the Russell era — in 1967 when Wilt’s Philadelphia 76ers won it all. (Wilt would go on to win another ring with the LA Lakers in 1972, after Russell’s retirement).
Great as he was on the court, Russell’s impact was even bigger off it. At a time when the White sports ownership system wanted their “carefully metered” Black stars to win games, fill seats, smile, sign autographs, and remain silent about systemic racism in American society, Russell took a big “pass” on the last three! He recognized that true greatness wasn’t measured by willingness to “go along to get along!”
For that reason, out of the countless tributes to Russell published over the past two days, I have selected this one as most representative of the greatness and impact of this American hero: “Bill Russell, Activist For The Ages,” by Martenzie Johnson in “Andscape:”
Through our reporting, we exclusively learned that U.S. Customs and Border Protection quietly changed last year how they count deaths on the border to only include deaths in custody, during arrests or when agents were nearby and there were 151 such “CBP-related” deaths in the 2021 fiscal year.
We are still reporting on this and other issues of course, so please keep in touch with tips and story ideas!
Thanks, Mica. “Tune in” to the full “multimedia report” referenced by Mica at the above link to Reuters.
No amount of statistical hocus-pocus or nativist BS can hide the stain of these deadly, yet ultimately ineffective, border enforcement policies. It’s important that the names and actions of the politicos, bureaucrats, and bad judges who promote and encourage deadly violations of human rights, and their media apologists, be preserved and documented for history!
As we can see, there are, and will continue to be, concerted efforts to “cover up,” deny, and misrepresent the deadly effects of bad border policies! “Dehumanization of the other,” actively promoted by Trumpists and other White Nationalist GOP pols and their hand picked Federal Judges is a crucial first step!
Nobody should be surprised that the Supreme Court’s conservative justices on Friday jettisoned nearly 50 years of precedent upon precedent in overturning Roe v. Wade. Heck, they didn’t even honor their own precedent articulated 24 hours earlier.
In their opinion Thursday morning forcing New York and other densely populated states to allow more handguns in public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions — specifically, the 1328 Statute of Northampton — “has little bearing on the Second Amendment” because it was “enacted … more than 450 years before the ratification of the Constitution.”
Yet in their ruling Friday morning in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century (and cracking the door to banning same-sex marriage and contraception), the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake — and to women as property, “inferior” to men.
The right-wing majority’s selective application of history reveals the larger fraud in this pair of landmark rulings: Their reasoning is not legal but political, not principled but partisan.
Still, there is a commonality to the rulings. Both decisions foment maximum chaos and were delivered with flagrant disregard for the instability and disorder they will cause.
The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.
Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority. The spouse of a fourth — Ginni Thomas, Clarence’s wife — aggressively pushed state legislators and the White House to overthrow the election. Yet Thomas, the senior associate justice, has refused to recuse himself from related cases.
After decades of crocodile tears over imagined “judicial activism,” the conservative supermajority has shed all judicial modesty and embraced radicalism. The liberal justices, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer, wrote in their Dobbs dissent that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.”
Even Chief Justice John G. Roberts Jr., who joined the gun ruling, scolded fellow conservatives for blithely overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed,” Roberts wrote. The majority’s “dramatic and consequential ruling is unnecessary,” he said, “a serious jolt to the legal system” that could have been avoided with a narrower decision that would have been “markedly less unsettling.”
Alito, in his (characteristically) sneering opinion in the abortion case, dismissed Roberts as unprincipled and public opinion as an “extraneous” concern. He likewise dismissed the pain the ruling would cause, writing that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’ ” He washed his hands of answering the “empirical question” of “the effect of the abortion right … on the lives of women.”
. . . .
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Read the rest of Milbank’s op-ed at the link.
It would be tempting to breathe a “sigh of relief” that while off on their taxpayer-underwritten summer frolic, the “Gang of 6” can’t do any more damage to our Constitution, our nation, our institutions, or humanity. But, unfortunately, that’s not completely true. If and when their party calls on them, they can always go into “emergency session.”
So let’s hope that there will be no further “emergencies” this summer other than the disorder and divisions already caused by their disingenuous political decrees masquerading as (very thinly to tragicomically inept and inconsistent) “jurisprudence.”
Still, those who enjoy their humanity and their rights (other than gun rights)shouldn’t get too complacent. Vacation will end; the Supremes will be back at it in October — looking for more ways to turn back the clock and “Dred Scottify the other,” even though the majority of Americans actually are “some kind of other.” With a little help from their GOP friends, they will disenfranchise and dehumanize one group at a time until rights and political power look largely like they did in 1789 — when free White men of property ruled.
As for CJ Roberts, after years of trying to put a “genial spin” on the mockery of a fair, impartial, and qualified judiciary incubating at his Supremes, he has totally lost control of the far-right extremists appointed by his party and, in some cases, pushed through the process in a highly irregular manner. Hard to have much sympathy there.
Refugee and Forced Migration Studies, Grace School of Applied Diplomacy
Craig Mousin has been the University Ombudsperson at DePaul since 2001. He received a BS from Johns Hopkins University, a JD from the University of Illinois, Urbana-Champaign, and an M Div from Chicago Theological Seminary. He joined the College of Law faculty in 1990, and served as the Executive Director of the Center for Church/State Studies until 2001, Acting Director until 2003, and co-director from 2004–2007. Mousin co-founded and continues to participate in the Center’s Interfaith Family Mediation Program. He has taught in DePaul’s School of Continuing and Professional Studies, the Religious Studies Department, the Grace School of Applied Diplomacy, and the Peace, Justice and Conflict Studies program. He has also taught as an adjunct faculty member at the University of Illinois College of Law and Chicago Theological Seminary .
Prior to DePaul, he began practicing labor law at Seyfarth, Shaw, Fairweather & Geraldson in 1978. In 1984, Mousin founded and directed the Midwest Immigrant Rights Center, a provider of legal assistance to refugees which has since become the National Immigrant Justice Center. He also directed legal services for Travelers & Immigrants Aid between 1986 and 1990. The United Church of Christ ordained him in 1989. At that time, Wellington Avenue U.C.C. called him as an Associate Pastor. He was a founding co-pastor of the DePaul Ecumenica l Gathering (1996-2001). Mousin serves as a Life Trustee of the Chicago Theological Seminary. In addition, he is a member of the Leadership Council of the National Immigrant Justice Center, a member of the Leadership Council of the Marjorie Kovler Center for Survivors of Torture, a former President and member of the Board of the Eco-Justice Collaborative, and a former President and Board member of the Immigration Project of downstate Illinois. Mousin is a current member of the ABA Dispute Resolution Section Ombuds Committee.
Craig writes:
Comment: Paul,
You might be interested in a short interview I did with Chicago FOX news on World Refugee Day. I tied the celebration in with the honoring of Juneteenth. See:
Also, I do not know if you subscribe to my podcast, Lawful Assembly, but my last post tied together censorship of books in public schools with anti-immigrant sentiments. You can listen at:
Today’s WashPost Outlook Section contained a highly relevant article by author Dave Eggers about how far-right zealots — many with no real stake in our public schools — have taken over at local levels and apply extreme censorship — even to books and concepts that have been successfully and routinely taught for years. https://www.washingtonpost.com/outlook/2022/06/24/dave-eggers-book-bans-south-dakota/
In this case, it’s driving experienced teachers who believe in truth, freedom, and individual rights to flee in droves. So, what we’re really seeing is a shocking “dumbing down” of American education, libraries, and public discourse driven by far right fear-mongers seeking to impose their lack of values and intolerance on others.
We have seen this week how far-right activist extremists, from the Supremes to local politicians and school boards, have elevated guns that kill while gutting the individual rights to free speech, equal protection,and fundamental fairness guaranteed by the 1st, 5th, and 14th Amendments.
Justice Clarence Thomas is certainly a horrible jurist. But, in this instance he might be the only honest GOP appointee on the Supremes.
When Thomas says that immigrants’ human rights, gay rights, right to conception, marriage rights and most other meaningful individual rights guaranteed by the Constitution are on the chopping block, progressives had better believe him. Remember how “leaving things to the states” worked out for African Americans and other minorities attempting to exercise their fundamental rights, even after the Civil War and the 13th, 14th, and 15th Amendments. And, remember all those paeons to precedent and “not to worry” about Roe statements under oath from GOP Supremes’ candidates before they actually took their seats on the Court and started scheming to undo abortion rights for political, not legal, reasons!
“Social Justice Warriors” like Craig have been fighting the good fight for decades. But, at this point, it’s going to depend on the NDPA and other young progressive groups to take on the extremist right at the ballot box and to take back their individual rights — really all of our individual rights.
Otherwise, they will find themselves as a disempowered counterculture, hiding out and trying to keep ahead of Ray Bradbury’s firemen in Fahrenheit 451!
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
“Nexus? What nexus? These “just happen to be” women facing a little “random violence!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
With credible testimony and harm that rises to the level of persecution for a woman in El Salvador, who was the victim multiple rapes, on its face, this should have been an easy grant for a competent IJ.
Essentially, this judge argues that harm rising to the level of persecution — multiple rapes — inflicted on a woman in El Salvador, where femicide and misogyny run rampant, has nothing to do with her being a woman. Such a conclusion is unlikely — some experts would say facially absurd!
Indeed, the IJ’s apparent view that multiple rapes had nothing to do with a gender-based protected ground of being a woman would be totally “off the wall” for any experienced asylum adjudicator who truly understood the well-documented nature of violence against women as a widespread form of persecution worldwide!
According to the UN Handbook for Determining Refugee Status, adjudicators should give credible applicants “the benefit of the doubt.” “It is therefore frequently necessary to give the applicant the benefit of the doubt.” (Par. 203). That’s not what this IJ did!
Also, in the remand order, the BIA specifically rejected the IJ’s finding that this gross harm to the respondent was “individualized” and “personalized” and therefore not a basis for an asylum claim — something not mentioned by the IJ in his “certification.”
Counsel for the applicant is well aware of this “better analysis” and could have argued it.But, in his snarky haste to prejudge and deny needed protection, this Houston IJ didn’t even give the parties a chance to participate in his “return to sender” (“certification”) nonsense.
A better functioning expert BIA would have long ago provided precedential guidance granting cases like this — adopting and amplifying the rationale of the IJ in the Honduran case.
Additionally, the BIA remand instructed the IJ to inquire of the DHS as to whether this victim of multiple rapes with no apparent criminal record or other adverse factors was and “enforcement priority” under applicable DHS guidelines — something that the IJ contemptuously and improperly did not do! Indeed,he didn’t seek any input from the parties despite being instructed to do so.
Unquestionably, being an El Salvadoran woman is a) immutable or fundamental to identity; b) highly particularized, and c) socially visible, as recognized by the Salvadoran government and everyone in El Salvador, thereby clearly qualifying as a “particular social group.”
There is also plenty of reliable evidence that El Salvador, like the rest of the Northern and Triangle Governments, is basically a failed state — something publicly admitted by some Administration officials, including Special Envoy to the Northern Triangle Ricardo Zuniga. https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A (“democracy, the rule of law and the security situation continue to deteriorate”). The Salvadoran government is neither willing nor able to provide a reasonable level of protection to women like this applicant. Indeed, there is likely sufficient evidence for a better BIA to establish a “rebuttable presumption of failure of state protection” in El Salvador and the rest of the Northern Triangle.
Temporary Appellate Immigration Judge Gabe Gonzalez, author of the remand, is one of the better BIA judges. But, his remand could have been even stronger. He could have reversed this IJ and granted asylum on this record. Why “beat around the bush” on grantable cases that are being mishandled by “chronically over-denying IJs” below? At this point, removal of this particular judge from the case would be more than justified. Cases like this certainly raise the legitimate question of why IJs who sit around inventing reasons to deny relief to those in need of protection are on the Immigration Bench in the first place. There are certainly better-qualified judicial choices — many of them located in Texas — who could bring legitimacy, quality, and efficiency to Garland’s dysfunctional courts!
“Bogus lack of nexus” is one of the most overused grounds for improper denials of protection by EOIR judges at all levels. It’s part of the “any reason to deny” approach enabled by EOIR’s current “anti-asylum culture” — one that was overtly encouraged and promoted by the Trump DOJ.
Inexplicably selecting Houston as one of the “test locations” for the new asylum regulations is “built to fail.” Without expert, positive guidance from qualified IJs in Houston (and the BIA) on granting asylum — something that this “denial centered court” simply doesn’t possess — there is every reason to believe that asylum seekers will not receive professional treatment or correct decisions from either the Asylum Office or the Immigration Court in Houston. And, relying on the BIA or, worse yet the “over the top” 5th Circuit,” to guarantee fairness and justice for asylum seekers? That’s a sick joke under current conditions!
8) Poorly reasoned, legally incorrect asylum denials and frivolous actions like the IJ’s “certification” in this case are a major factor in generating a 1.8 million case EOIR backlog and enabling a lawless, non-expert, anti-immigrant “culture of denial” at EOIR. Many grantable asylum cases languish in the backlog, are subjected to “Aimless Docket Reshuffling,” and then are wrongfully denied by poorly performing judges at both levels of EOIR.
9) EOIR suffers from poor leadership, a poorly performing BIA that overall lacks the expertise and courage to grant the large number of deserving asylum cases currently languishing in the EOIR backlog, and to set proper legal standards that will guide Immigration Judges and Asylum Officers in efficiently granting deserving cases at the first level of the system.
10) Garland should remove or reassign the “under-performers” and “non-performers” at EOIR and replace them with qualified experts committed to best practices and “guaranteeing fairness and due process for all” (EOIR’s now long-forgotten and dishonored mission).
11) Lives and the future of democracy are at stake here! America simply can’t afford the “institutionalizednonsense” still rampant at EOIR as illustrated by this case!
12) Also, EOIR’s performance in this cases is inconsistent with almost every sentence of the recent “LA Declaration.” Issuing statements of principle that are directly contradicted by your actual practices is a bad idea!
This has been a bad week for individual rights and particularly the rights and humanity of women in America. Garland can’t fix the out of control, “fringe-right,” Supremes’ majority. But, he can fix EOIR! And, that would be a long overdue and desperately needed first step toward fixing the entire broken and foundering Federal Court system. Start “at the retail level” with what you have the power to fix and work from there!
Garland’s Dedicated Courts: Deny and deport, deny and deport, deny and deport, deny and deport . . . . .” Creative Commons License
Transactional Records Access Clearinghouse
5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few Are Granted Asylum
During the last six months, over 5,000 asylum seekers have been required to remain in Mexico under the current implementation of the Migrant Protection Protocols (MPP)—also known as MPP 2.0—while awaiting their Immigration Court hearings. Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
As a result of low representation rates and accelerated hearings, just 27 people out of the 5,100 asylum seekers in MPP 2.0 so far, have received asylum or some other form of relief. These 27 cases account for just 2.4 percent of the 1,109 MPP 2.0 cases which have been completed to date. By contrast, during the same period of FY 2022, fully half of all Immigration Court asylum decisions decided for people inside the United States resulted in a grant of asylum or other relief.
While MPP 1.0 under Trump had also been designed to attempt to expedite processing of these asylum cases, MPP 2.0 is intended to speed case completions even further. Under current guidelines, cases assigned to MPP should be completed within 180 days. The Biden administration has been largely successful in meeting this deadline. During December 2021, a total of 129 asylum seekers were assigned to MPP 2.0, which means that most of these cases are reaching their 180-day deadline now (or soon). For these initial 129 cases, over eight out of ten (81%) were completed at the end of May. Nonetheless, it may be difficult for the Court to maintain this same processing pace as the monthly total of new MPP court filings has steadily grown to over 2,000 in May 2022.
MPP 2.0 cases have not been evenly spread among hearing locations. Cases added to MPP 2.0 in December were primarily heard by the El Paso Immigration Court which received 109 cases. The El Paso MPP court currently has 923 cases assigned to it. By contrast, the MPP Brownsville Immigration Court has now been assigned 2,752 new cases—more than half (54%) of all MPP 2.0 assigned cases as of the end of May. The MPP Laredo, Texas (Port of Entry) Immigration Court has been assigned 404 MPP cases, and an additional 76 cases have been assigned to the Laredo Immigration Court. The MPP Court San Ysidro Port has received 386 cases so far.
It is still early in the implementation of MPP 2.0, and TRAC’s report on MPP 2.0 should be understood as a preliminary analysis However, these findings do raise concerns similar to MPP 1.0. Further detailed analysis will be warranted as more cases are added to the current implementation of the Migrant Protection Protocols.
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
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Garland’s performance on EOIR is disgraceful. Question is, what will advocates do about it?
Curiously, going into difficult midterms where every vote supposedly counts, the Biden Administration appears to have decided that they don’t need the support and votes of their base. They might well be following “Miller Lite” or “Miller Genuine” policies of abusing asylum seekers. But, I doubt they will be getting any votes from the “Miller Right!”
An interesting “strategy” to be sure. We’ll see how it works out!
