☠️END MISOGYNY 🤮@ EOIR, NOW! — Gorelick & Miller-Muro Are Right, But Abused Refugee Women’s Lives⚰️ Can’t Wait For Congress! — Judge Garland Must Bring Justice ⚖️ To Dysfunctional EOIR Now! — It’s Not Rocket Science! 🚀

Woman Tortured — Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Jamie Gorelick
American Lawyer & Public Servant
PHOTO: Creative Commons

Layli Miller-Muro
Founder & Executive Director, Tahirih Justice Center
PHOTO: Creative Commons

https://www.washingtonpost.com/opinions/2021/04/07/us-asylum-law-must-protect-women/

Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.

With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.

To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.

This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.

It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.

In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.

But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.

. . . .

This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.

. . . .

***************************

Read the full op-ed at the link.

The Rest of the Story

I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.

Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.

The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).

In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!

In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.

Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!

Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.

“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women.

In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent – a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland.

Judge Merrick Garland — Judge Merrick B. Garland
Official White House Photo
Public Realm

Yeah, I’ve read about the Judge’s “difficulties” in getting his “A-Team” on board at the DOJ. https://www.washingtonpost.com/opinions/2021/04/07/us-asylum-law-must-protect-women/. So what!

Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”

“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Please, Pick Up The Phone & Your Pen, Judge Garland!

Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.

First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)

Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.

Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.

Finally, sign this order:

All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)

Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)

In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”

See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle.

It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!

It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

04-09-21

🇺🇸⚖️STRAIGHT TALK FROM HON. JEFFREY S. CHASE: “[F]or decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that ‘this is not their world.’ The time has come to finally put an end to this sad substitute for true administrative appellate review.”

https://www.jeffreyschase.com/blog/2021/4/6/the-bias-mansplaining-of-gender-based-asylum

Blog Archive Press and Interviews Calendar Contact

The BIA’s Mansplaining of Gender-Based Asylum

“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”

Rebecca Solnit, Men Explain Things to Me

On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:

Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.

But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”

Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.

When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.

Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.

It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.

Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.

Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.

In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.

In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.

Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4

When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?

The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.

Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.

It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.

Notes:

Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).

Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).

Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).

Matter of A-B-, 27 I&N Dec. 316, 339 (A.G. 2018).

22 I&N Dec. 906 (BIA 1999).

Kaur v. Wilkinson, No. 18-73001, __ F.3d __ (9th Cir., Jan. 29, 2021).

Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).

Copyright 2021, Jeffrey S. Chase. All rights reserved.

Republished by permission.

***************************

Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.

https://immigrationcourtside.com/2021/04/06/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8fbias-misogynistic-anti-asylum-ignore-the-experts-the-evidence-approach-%f0%9f%a4%ae-rebuked-again-9th-cir-slams-bia-big-time-in-rodriguez/

And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.

COURTSIDE HISTORY: LEST WE FORGET: THE “ASHCROFT PURGE” AT THE BIA IN 2003 DESTROYED THE PRETEXT OF JUDICIAL INDEPENDENCE AT EOIR FOREVER – HERE’S HOW! — Read Peter Levinson’s 2004 Paper: “The Facade Of Quasi-Judicial Independence In Immigration Appellate Adjudications”

In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow. (We are now in the “New Era of Jim Crow.”)

Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?

🇺🇸⚖️🗽Due Process Forever!

PWS

04-07-21

⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!

Here’s the letter to Chair Zoe Lofgren of the House Subcommittee on Immigration:

FIJC

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera

***********************

Thanks to Professors Benitez and Vera for the great work for the NDPA that they are doing and the values they are instilling in their students. Just think what due process could look like in the Immigration Courts if all judges, trial and appellate, reflected those same values!

The concepts are actually very straightforward.

The Attorney General is a litigant before the Immigration Court. He or she can insert themselves in the process if they choose, to represent the Government as a litigant. But, the Attorney General should be treated as any other litigant — at arm’s length.
Individuals appearing before the Immigration Court are entitled to a fair and impartial independent adjudicator. As long as the Attorney General exercises control over the selection of judges, evaluates their performance, and can review and arbitrarily change their decisions, on his or her own whim, the system will remain unconstitutional and fundamentally unfair.

Interesting that law students see so clearly, recognize, and can articulate what Federal Judges, all the way up to the Supremes, legislators, and our Attorney General all fail to acknowledge and act upon. Hope for the future! But without better-qualified legislators, judges, and Executive Branch officials, will our justice system survive long enough to get to the future? Not without some very fundamental changes!

Every day, individuals have their constitutional, statutory, and human rights stomped upon, mocked, and abused by the broken Immigration Courts. Sometimes, Circuit Courts intervene to provide some semblance of justice in individual cases; other times they turn a blind eye to injustice and fundamentally unfair decision-making in the totally dysfunctional Immgration Courts.

But, nobody, but nobody, except members of the NDPA appears to be willing to recognize and act on the overall glaring constitutional and operational defects in the current Immigration “Courts” — that don’t resemble “courts” at all. That’s something that should concern and outrage every American committed to racial justice, equal justice for all, fundamental fairness, and constitutional due process!

EOIR and the U.S. Immigration Courts are an ongoing national disgrace — a festering sore upon democracy!🤮 Every day, they inflict unnecessary pain and suffering on those humans being abused by their fundamental unfairness and institutionalized chaos.!

How many ruined human lives ⚰️ and futures ☠️is it going to take for someone in the “power structure” to wake up and take notice!

🇺🇸⚖️🗽Due Process Forever!

PWS

04-05-21

⚖️🗽WATCH, LISTEN TO PROFESSOR GEOFFREY HOFFMAN OF U. OF HOUSTON LAW DELIVER THE 2021 SKELTON LECTURE: “What Should Immigration Law Become?”

https://youtu.be/GvwuahGzZQ8

*****************

A few “takeaways” from one of America’s leading “practical scholars:”

Think about a new start with a “clean slate;”
Deportation is “state violence;”
Immigration Courts are constructed to provide Gov. with an unfair advantage;
No rules, no due process, no justice;
Kudos to the NDPA & the Round Table;
Trump Administration spent inordinate effort improperly skewing the law to insure everything is denied and remove equible discretion from IJs;
Good provisions that provided discretion in the past to alleviate hardship and injustice have been eliminated by Congress: suspension of deportation, JRAD, 212(c), 245(i), registry (not repealed but now virtually useless b/c of 1972 cutoff date).

👍🏼🗽Thanks, Geoffrey, and Due Process Forever!

PWS

03-04-21

👩🏻‍🎓HISTORY WE SHOULD HEED: Professor Julia G. Young On Why Politicos & Their Wrong-Headed Unilateral Cruel Enforcement Programs Have Failed At The Border — “Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.” — Vice President Kamala Harris Isn’t The First Political Figure To “Take On The Border” — Could She Be The First To Get It Right?

https://apple.news/AgbanNxVvSxGEHNVvJ1hFaw

Professor Julia Young in Time Magazine:

With the U.S. “on pace to encounter more individuals on the southwest border than we have in the last 20 years,” as Homeland Security Secretary Alejandro Mayorkas said in a statement March 16, immigration at the U.S.-Mexico border has emerged as one of the toughest challenges facing the Biden Administration. Last week, President Biden put Vice President Kamala Harris in charge of “stemming” the flow of migrants, Biden was questioned about the immigration situation at his first official press conference, immigrant detention centers began to fill up once again, and lawmakers from both sides of the aisle made trips to the border to publicize the issue and propose solutions.

Biden’s attempts to address immigration may be new, but the issue is one that has dogged his predecessors for decades. Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.

There’s a reason why the U.S. government has failed for so many years to “control” the border: none of these policies have addressed the real reasons for migration itself. In migration studies, these are known as “push” and “pull” factors, the causes that drive migrants from one country to another.

Today, the countries sending the most migrants to the U.S.-Mexico border–especially the Central American countries of Guatemala, Honduras and El Salvador–are experiencing a combination of push factors that include poverty and inequality, political instability, and violence. And while the current situation may be unique, it is also deeply rooted in history.

Get your history fix in one place: sign up for the weekly TIME History newsletter

Many countries in Central America have struggled with poverty since the time of independence from Spain in the early 19th century. While they are beautiful countries that are rich in culture and history, that colonial past has meant they have historically been home to large, landless, poor, rural populations, including many indigenous people of Mayan descent. In the years after Spanish control, they were typically ruled by small oligarchies that disproportionately held wealth, land and power, and their economies were primary export-dependent, which brought great riches to landowners but also exacerbated and perpetuated inequality and the poverty of the majority. Those dynamics have carried forward to today. More recently, climate change–in particular, drought and massive storms–has forced the vulnerable rural poor out of the countryside.

. . . .

And while many Central Americans could indeed qualify for asylum based on their experiences of persecution, the previous administration made every effort to limit their ability to obtain it. Now the Biden Administration must decide whether to restore the asylum framework, which has become the only possible path to legal migration (as well as safety and security) for Central Americans and other migrants who—due to these combined push and pull factors—are desperate to come to the United States.

Given the complicated and deep-rooted reasons behind migration, lawmakers cannot control or “solve” the ongoing crisis at the border by simply pouring money and resources into ever more militaristic border theater. It’s no wonder that decades of such policies have done little to change the underlying dynamics.

Instead, if Americans are serious about changing the situation at the border, we need to address the push and pull factors behind Central American migration. We need to acknowledge the reality of the U.S. economy (in particular, that it demands immigrant labor to work low-wage jobs) and work to construct new legal frameworks that reflect that reality. We need to target financial and logistical support to encourage Central American countries to address the poverty and inequality that fuel migration, rather than cutting foreign aid, as the Trump Administration did. We need to do all we can to end the pervasive gang violence that pushes so many migrants out of their homelands. And of course, we must continue to evaluate our own historical and contemporary role in creating the longstanding problems that are pushing Central Americans to migrate.

**************

Read the rest of Julia’s article at the link. One key truth: many more Central American migrants would qualify for asylum and be legally admitted to our society under a fair application of our asylum laws directed and supervised by real expert judges who scrupulously enforce due process and best practices on a now biased, unfair, and dysfunctional system!

“Stemming the tide” might be neither realistic nor possible at this time. But, controlling it, managing it humanely and legally, and regularizing it, while lessening the “push” factors should be achievable.

It would, however, require bold actions:

Recognizing the primacy of humanitarian protection laws and insisting on due process in implementing them;
Putting experts in humanitarian situations, due process advocates, diplomats, labor economists, and demographers in leadership positions; and
Embracing much larger levels of legal immigration, particularly from Latin America.

Vice President Kamala Harris — Vice President Kamala D. Harris
Vice President of the United States
(Official Senate Photo)

Unfortunately for Vice President Harris and the rest of us who want humane, realistic immigration policies, there are reasons for our half-century of overall failure on the border.

Bloated government bureaucracies, powerful corporate interests, nativist politicians, and even foreign leaders are heavily invested in expensive and guaranteed to fail “uber enforcement” gimmicks. Failure basically creates a never-ending demand for more: more enforcement agents, “civil prisons,” jailers, deporters, cars, trucks, guns, boats, ammo, walls, fences, technology, courts, judges, prosecutors, lobbyists, “baby jails,” processing centers, foreign aid that goes largely into the pockets of corrupt leaders and their cronies, and a never-ending supply of underground, low-wage, politically neutered workers.

Additionally, we now have an entire political party with an agenda of overt institutionalized racism, dehumanization of the other, and fear-mongering White Nationalist myths driving its bogus populist narrative.

None of these “architects and enablers of border failure and institutionalized racism” are going “quietly into the night.” They will fight tooth and nail to defend their sinecures, profitable empires, and politically useful White Nationalist myths.

The politician who finally breaks the deadly cycle of failure and human misery at our border, while harnessing and realizing the positive power of human migration, will become a hero for future historians and undoubtedly merit a chapter in a new edition of Profiles in Courage.

Sadly, such recognition and adulation is likely to come long after she is gone from the scene. Long term vision and moral courage are not necessarily rewarded with short-term political popularity. Just ask the few Republicans who voted in accordance with the overwhelming, basically uncontested, evidence of Trump’s “high crimes and misdemeanors!”

That’s why it’s a tough challenge even for someone of Vice President Harris’s undoubted intelligence and abilities. It’s up to those of us who believe in a better America to keep her from getting sidetracked and co-opted by the vested interests of failure and White Nationalist myth-makers and purveyors.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-04-21

☠️⚰️POLITICOS, MEDIA CONTINUE TO GET THE BORDER WRONG — By Mary Giovagnoli In MS — “For the present, we must stop pretending that the U.S. can pick and choose when people will leave their countries and ask for asylum at our border.”👎🏻

Mary Giovagnoli · Senior Legal Counsel, Strategy and Special Programs at Kids in Need of Defense (KIND)
PHOTO: Medium.com

The Misery Trump Left at the Border Is Finally Being Revealed – Ms. Magazine
. . . .

Trump supporters and hangers-on boast the “success” of Trump’s immigration policies, demonstrated by the supposed drop in illegal entries. But this is merely an “out of sight, out of mind” approach to managing a very real problem. It was a giant sleight of hand which hid the actual number of people seeking entry into the U.S. Biden’s policies have pulled back the curtain and like so many other aspects of Trump’s administration, it is clear that the claims of success are nothing more than fantasies.

And yet the Biden administration is not off the hook. While it did agree to permit unaccompanied children to enter the U.S. despite the Title 42 ban, it did so following a preliminary injunction issued by a federal court last November. DHS continues to expel families, as well as single men and women, under the existing Title 42 order.

. . . .

Despite the clear moral and legal imperatives to stop Title 42 expulsions, the Biden administration is clearly worried that returning to pre-pandemic processing of asylum seekers will overwhelm the system. It is also clear that they fear a political backlash if critics are able to characterize the border as out of control.

Taking these final steps takes courage and political will. Those of us who support the rights of asylum seekers have to let the administration know that doing the right thing will not tarnish its reputation and that we will work even harder to ensure that making good on humane immigration policy is not political suicide.

Protecting asylum seekers is a woman’s issue of the first order. We must encourage and challenge both the administration and Congress to live up to U.S. obligations. We must turn out at the voting booth to support candidates and elected officials who act on behalf of asylum seekers. And we must push back, every way we can, against those who hope to weaponize the border in a callous effort to turn following the law into a political liability.

*****************

Read Mary’s complete article at the link. Many thanks to Judge Alex Manuel of the ABA’s National Conference of the Administrative Law Judiciary for passing this along.

Surprisingly, “forced migration,” is exactly what it says it is: “FORCED migration” — not optional! As I have pointed out before: “We can diminish ourselves as nation (and are doing so), but it won’t stop human migration.”

Refugees come, because that’s what refugees do. They often come when the world is in crisis, because that’s one of the primary reasons why refugees flee. They seldom come in an orderly manner because flight to save your life doesn’t lend itself to “regularity.” How many Jews perished in Nazi-controlled areas before and during WWII waiting for visas that were never going to come?

And, what brings refugees to our borders actually has little to do with inane statements of politicos, bureaucrats, border cops, and the media. One of the main consequences of illegally “closing the border to asylum seekers” is that large numbers simply enter between ports of entry. Those who used to turn themselves in to the Border Patrol are encouraged by our short-sighted policies and unwillingness to follow our own laws just to keep on going.

We’d certainly do much better if we “canned” all the Trump-era illegal, racist nonsense, reopened border ports to asylum seekers, and encouraged them to apply there or in locations abroad. But, to make that happen we would also have to review their claims in a timely, fair, and humane manner — not “rocket science,” yet something that largely has eluded our nation, particularly since 2014.

It’s achievable. But not without much better leadership coming from experts who actually know how to deal with refugee situations in a humane and effective manner. Failed bureaucrats and grandstanding politicos, those who usually “drive the train heading for a wreck,” can’t do the job! That’s been proved time and again! Why do we insist on repeating all our mistakes? Cruelty and threats simply aren’t effective.

To emphasize Mary’s concluding point about women’s concerns, Jeff “Gonzo Apocalypto” Sessions and Neo-Nazi Stephen Miller made misogyny a focus of their vicious attack on people of color seeking asylum. It started with Sessions’s atrocious decision ignorantly and unlawfully targeting women refugees in Matter of A-B- and continued through Miller’s now-enjoined effort to unlawfully eradicate gender-based asylum grants. Never mind that women form the largest group of clearly identifiable refugees in the world and that femicide and violence against them driven by sexual antipathy and issues of control are rampant worldwide, particularly in the Northern Triangle.

But, a large problem here is that more than two months into the Biden Administration, Attorney General Merrick Garland has yet to repudiate Matter of A-B- and the other debilitating racist and misogynist “precedents” and grotesquely illegal anti-asylum policies of Sessions and Barr. Worse yet, he has neither stood up for the reinstatement of asylum laws and compliance with Constitutionally-required due process at the border, nor has he removed and replaced “his” Board of Immigration Appeals and taken steps to curb those of “his” Immigration “Judges” who are still engaged in furthering the Sessions/Barr White Nationalist, misogynist, anti-asylum agenda!

Interesting lack of action from a distinguished former Federal Judge who several months ago claimed great gratitude that his ancestors were given refuge from harm by the U.S. Is there some reason that those people of color and others now arriving at our borders and claiming legal protections under our laws are less deserving of fair, generous, and humane treatment?

🇺🇸🗽⚖️Due Process Forever!

PWS

04-03-21

🤮☠️⚰️👎🏻HISTORY OF HATE: Misogyny, Vilification, Racist Hate Directed At Asian Women Has Deep Roots in U.S. Law! — Jessica Pearce Rotondi in History!

Jessica Pearce Rotondi
American Freelance Writer & Editor
PHOTO: Facebook

Before the Chinese Exclusion Act, This Anti-Immigrant Law Targeted Asian Women
The 1875 Page Act was one of the earliest pieces of federal legislation to restrict immigration to the United States.
Jessica Pearce Rotondi Mar 19, 2021
The Chinese Exclusion Act of 1882 is often seen as the first major law to restrict immigration in the United States. But there is an earlier law that was used to effectively prevent Chinese women from immigrating to the United States: The Page Act of 1875.
Chinese Immigration in America
The first Chinese immigrants began arriving in the United States in the 1850s. Many were fleeing the economic consequences of The Opium Wars (1839-42, 1856-60), when the British fought to keep opium trafficking routes open in defiance of China’s efforts to stop the illegal trade. An ensuing series of floods and droughts drove members of the lower classes to leave their farms and seek new work opportunities abroad.
When gold was discovered in California in 1848, more and more Chinese immigrants traveled to the West Coast to join the Gold Rush. Some worked on American farms or in San Francisco’s growing textile industry. Others were employed as laborers with the Central Pacific and Transcontinental railroads—railroads which would speed up Westward expansion and facilitate
https://www.history.com/news/chinese-immigration-page-act-women?c…21-0329-03292021&om_rid=&~campaign=hist-inside-history-2021-0329 Page 1 of 7

Before the Chinese Exclusion Act, This Anti-Immigrant Law Targeted Asian Women – HISTORY 3/29/21, 11:35 PM
the movement of troops during the Civil War.
Despite their pivotal role in building the infrastructure of the United States, racism directed at Chinese immigrants was a constant from the moment they arrived on American shores.

. . . .

Both European and Asian immigrants came to the United States seeking to improve their economic well being, explains Dr. Melissa May Borja, assistant professor in the Department of American Culture at the University of Michigan. But Chinese immigrants were regarded as a bigger threat.
“They were seen as a racial threat to a pure white America. They were seen as an economic threat to free white labor. They were depicted as a disease threat—a lot of anti-Chinese rhetoric hinged on portraying Chinese people as filthy and disease-ridden. They were also seen as a religious and moral threat as heathens who threatened a Christian America.”

. . . .

Chinese women were perceived as a particular type of threat: A sexual one. “They were stereotyped as promiscuous, as prostitutes,” says Borja.
While there were Chinese women working in the sex industry in the mid-19th century, they were singled out from their white peers: “Chinese women were specifically accused of spreading sexually transmitted diseases. They were scapegoated. That sexualized stereotype stuck,” says Dr. Kevin Nadal, professor at the City University of New York and vice president of the Filipino American National Historical Society.
Did you know? The earliest known Chinese woman to immigrate to America, Afong Moy, arrived in New York from Guangzhou in 1834. She had bound feet and was exhibited as a curiosity across the United States, first by traders Nathaniel and Frederick Carne and later by American promoter and circus founder P. T. Barnum.

. . . .

********************

Read the full article at the link.

The ugly history of abuse, vilification, sexualization, and racism directed at Asian American women has deep roots. It’s the history of the “real America” — essentially a “white’s only” sociopolitical structure engrafted on a national economy and culture built on the backs of black, Asian, Hispanic, and immigrant labor. The history that today’s GOP both doesn’t want you to learn while they generate hate directed at people of color and strive to repeat the mistakes and “reprise” the false racist narratives of the past.

PWS

03-31-21

🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!

*********************

The answer to the question posed is actually simple. As of today, DHS Enforcement and politicos at the DOJ “own” the so called Immigration “Courts” lock, stock, and barrel!

That’s an overt violation of the clear Fifth Amendment requirement that those whose lives and property are at stake be judged by a fair and impartial adjudicator — by definition one who is an expert in asylum law, human rights, and has demonstrated the ability to conduct fair hearings.

That’s also bad news for the Hispanic Community, because for the last four years those wholly owned “courts” have been operating with a clear bias against the civil and human rights of people of color, with Hispanic migrants and asylum seekers being a particular target — one that has adversely affected, even terrorized, Hispanic communities throughout the U.S. Hispanics are also grossly underrepresented among the “Immigration Judiciary” at both the trial and appellate levels, as well as on the Article III Bench — despite there being scores of Hispanic and other lawyers of color out here who would be head and shoulders above many of those currently holding these critical “life or death” judgeships!

The real questions are:

1) What can we do about it, and

2) How can we get Judge Garland and others in the Administration to listen, put an end to “Dred Scottification,” and get started on the task of bringing due process and fundamental fairness to a totally dysfunctional and dangerously biased system?

Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

03-29-21

🛥🤮🤡CRUZIN’ WITH THE CANCUN COWBOY — Texas Insurrectionist Sen. Bravely Faces Down Unarmed Asylum-Seeking Women & Children From CBP Gunboat! — Man & His Party — Devoid Of Constructive Ideas — Audition For Comedy Documentary, As Real Threats To America From Their “Magamoron” Comrades Multiply & Folks Who, Unlike Cruz, Seek To Contribute To Our Society Are Left In Danger!

https://www.theguardian.com/us-news/2021/mar/27/ted-cruz-us-mexico-border-immigration?CMP=Share_iOSApp_Other

Erum Salam reports for The Guardian:

The Republican senator Ted Cruz has drawn criticism for taking a trip to America’s southern border as the conservative Texan politician once again became the butt of internet jokes and memes.

In the style of a wildlife documentary, Cruz captured his experience with the help of professional photographers and shared his recent journey to the US-Mexico border Thursday night on social media, where he aimed to shed light on what Republicans have dubbed a crisis.

Ted Cruz

@tedcruz

Live footage from the banks of the Rio Grande.

#BidenBorderCrisis

2:15 AM · Mar 26, 2021

20.8K

17.7K

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Sporting a dark green fishing shirt and matching baseball cap with the Texas flag, Cruz spoke at a press conference where he sought to paint a dramatic picture of his experience: “On the other side of the river we have been listening to and seeing cartel members – human traffickers – right on the other side of the river waving flashlights, yelling and taunting Americans, taunting the border patrol.”

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Despite his claims that the border situation is a direct result of the Biden administration’s immigration policies, residents in the Rio Grande Valley have said no such crisis exists. In fact, the number of border crossings under the Biden administration largely mirror those under the former Trump administration. Cruz was accompanied by 18 other Republican senators including John Cornyn, Susan Collins and Lindsey Graham.

After claiming he ran into heckling cartel members and saw a dead body floating in the Rio Grande, Cruz was derided by many, including the former congressman Beto O’Rourke who said: “You’re in a border patrol boat armed with machine guns. The only threat you face is unarmed children and families who are seeking asylum (as well as the occasional heckler).”

. . . .

**********************

Read more at the link about the GOP’s complete farce — while much more courageous individuals, asylum seekers, are forced to risk their lives because the U.S. is incapable of administering our own asylum laws in a fair, responsible, and competent manner. Cruz & co apparently view this as a “photo op.” Actually, it’s a human tragedy for which history will hold Cruz and his racist party largely responsible, even if the voters fail to do so.

The best solution is to hire experts from the private/NGO/academic sectors; build a functioning asylum and refugee system that will process applicants fairly, generously, predictably, and efficiently; reopen legal ports of entry; establish a robust “on site” refugee program for the Northern Triangle; and work with the international community to alleviate the causes of forced migration. Figure out how new arrivals who qualify for legal status can help rebuild our economy moving forward. Develop a humane program for returning those who don’t qualify without endangering their lives, health, and safety.

An absolutely essential part of the solution is a new, “reimagined” EOIR, staffed with real judges who are experts in asylum, human rights, and due process. An EOIR that will “through teamwork and innovation, be the world’s best courts, guaranteeing fairness and due process for all.” Judge Garland, where are you in American justice’s hour of dire need?

Imperfect as our current laws may be, they cover all of the foregoing. What we really need to do is follow our own laws with common sense, humanity, and a sense of urgency!

What we don’t need is more inane walls, more border enforcement directed against asylum seekers, and more cruel and illegal schemes to return refugees to back to danger without any due process. And, we certainly don’t need any more photo ops from Cruz and his GOP cronies.

🇺🇸🗽⚖️Due Process Forever!

PWS

03-29-21

🧑🏽‍⚖️👨🏻‍⚖️⚖️BIDEN & WARREN BELIEVE IN A DIVERSE, PROGRESSIVE FEDERAL JUDICIARY — JUDGE GARLAND CONTROLS PERHAPS THE MOST IMPORTANT FEDERAL JUDICIARY NEXT TO THE SUPREMES — So, What’s He Waiting For? — Will He Reverse The Dems’ Maddening Failure To Grasp & Act On The Cosmic Importance & Game Changing Potential Of A Progressive Immigration Court, That Gets Beyond The Often White, Male, Enforcement, “Go Along To Get Along” Stereotypes & Showcases Diverse, Progressive “Practical Scholars,” Many Of Them Women & People Of Color?

https://www.huffpost.com/entry/elizabeth-warren-professional-diversity-federal-judges_n_605cbde5c5b67ad3871d9095o

Jennifer Bendery in HuffPost:

The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.

For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.

“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”

Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.

If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.

At last, the times are catching up with Warren.

President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.

“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”

. . . .

****************

Read the complete article at the link.

Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now!

At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿‍♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay!

Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!

Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.”

Grim Reaper — G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law.

Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, they are condemned to endless litigation to vindicate their rights in a system intentionally rigged against them.

Star Chamber Justice — “Justice”
Star Chamber
Style

Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!

The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”

Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!

During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum.

Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience.

In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮

Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary.

Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!

PWS

3-28-21

🏴‍☠️CLOSING THE BORDER TO LEGAL ASYLUM SEEKERS IS A VIOLATION OF BOTH DOMESTIC & INTERNATIONAL LAW — It’s Neither Something To Tout (Biden Administration) Nor A Solution (GOP) (Except, Perhaps, In The “Hitlerian” Sense) — Our Inability To Solve A Humanitarian Situation By Acting Lawfully, Sensibly, & Humanely Is A Sign Of Gross National Weakness Spurred By Unwillingness To See The Human Tragedies We Are Promoting! — And The Lousy, Misleading, & Tone-Deaf Reporting By The Some Of The “Mainstream Media” Is Making It Worse! — Leon Krauze & Suzanne Gamboa With Simple Truths About Human Migration That Neither Pols Nor Nativists Want You To Hear! — PLUS BONUS COVERAGE: Friday Mini-Essay: “Degrading Ourselves As A Nation Won’t Stop Human Migration”

https://www.washingtonpost.com/opinions/2021/03/24/border-crisis-migrants-media-biden/

Leon Krauze in the WashPost tells us what’s really happening at the border. WARNING: It has little to do with the myths and false narratives being peddled by the GOP, the Administration, and the media.

The current emergency at the border has found the U. S. media at its most solipsistic. Coverage seems more focused on whether the emergency should be called “a crisis” (it should) and what the political fallout for the Biden administration will be. With few exceptions — like the remarkable work of MSNBC’s Jacob Soboroff or Politico’s Sabrina Rodriguez — many news outlets seem utterly uninterested in the stories of the migrants themselves.

This is wrong because it fails to provide one crucial piece of the puzzle: the very concrete context of human suffering.

. . . .

This by no means excuses the stories of anguish and confinement that have emerged over the last few weeks from within the facilities set up by the Biden administration to deal with the number of young migrants crossing the border, nor does it absolve the president himself from delivering on his promise of a humane immigration system, diametrically opposed to Trump’s cruel policies, designed in collaboration with unapologetic racist xenophobes like Stephen Miller.

The Biden administration can and should do better. But the current debate cannot ignore the very concrete despair facing thousands of immigrant families who, under the direct threat of violence or abuse, chose to push their young children to the United States, in search of safety.

If the alternative was famine, gang violence, kidnapping, rape or sexual slavery, wouldn’t you bet it all on the journey north? If more people understood this, the political debate and the coverage surrounding the crisis would be much more empathetic and we would get closer at delivering concrete, humane solutions.

Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:

https://www.nbcnews.com/news/latino/americas-immigration-impasse-self-inflicted-doesnt-rcna485

America’s immigration impasse — an endless loop across different administrations — is largely self-inflicted, because Congress has repeatedly failed to acknowledge one simple thing: Immigration happens.

Accordingly, immigration laws must be continually adjusted, reformed and revised, experts say.

“People will always want to come to the U.S., and the U.S. will always need people,” said former Commerce Secretary Carlos Gutierrez, who was a top immigration adviser to President George W. Bush.

Until there is a system that allows enough legal immigration to meet the economy’s needs, there will be illegal immigration, Gutierrez said.

“That’s just part of how our economy is set up. It’s part of demographics,” Gutierrez said. “Our birthrate is not high enough to be able to fill the needs of our economy.”

The coronavirus pandemic reinforced the importance of immigrant labor to the American economy, including labor by the undocumented.

It opened many Americans’ eyes to the precariousness of the U.S. food supply, which depends on immigrant and undocumented farmworkers and meat plant workers, as well as to other immigrants’ roles as essential workers, such as home health care aides, nurses and paramedics.

All of those people and many other immigrants, including young immigrants — often called “Dreamers” based on never-passed proposals in Congress called the DREAM Act — will play a key role in helping the economy recover from its pandemic bust.

But immigration requires periodic calibration, and the economics and the changing patterns are lost in the politics.

“People are going to move — as they are all around the world — where they think they can find places to better feed their children. That’s the bottom line, and that’s the history of migration to the United States,” said Luis Fraga, director of the Institute for Latino Studies at the University of Notre Dame.

. . . .

*******************

Everyone should read the rest of the stories at the above link.

Degrading Ourselves As A Nation Won’t Stop Human Migration

By Judge (Ret) Paul Wickham Schmidt

“Courtside” Exclusive

March 26, 2021

Notwithstanding the endlessly disingenuous and self-centered alarmist rhetoric coming from all directions on the border mess, often mindlessly regurgitated by the press (not just Fox News), the real “crisis” involves the human lives at stake and the unnecessary human misery we are causing by failing to establish, professionally staff, and fairly and competently operate the legal refugee and particularly asylum systems required by law. This “due process crisis” actually has devastating and debilitating practical effects, starting with the dysfunctional immigration, refugee, and asylum system and the beyond dysfunctional Immigration Courts.

Heck, we don’t even pretend to comply with Constitutionally-required due process of law for asylum seekers who present themselves to us seeking life-saving refuge. Most of those who show up at legally-established border ports are told that the border is “closed” and that there is no way for them to apply. OK, so they attempt to cross between ports and immediately present themselves to the Border Patrol. But, they also are told there is no way to apply and are orbited back to some of the most dangerous countries in the world without any process whatsoever, let alone due process of law. Who are we kidding with all our dishonest pontificating about “the rule of law?”

It’s a strange way to implement the statutory command that any foreign national “irrespective of . . . status, may apply for asylum,” along with a constitutional guarantee that “No person shall . . . be deprived of life, liberty, or property without due process of law.” Gee, you don’t even need one of those fancy Ivy League law degrees to understand that language. You just have to be able to read, comprehend, and act.

What you do have to do to get where we are today is to view asylum seekers and other migrants (predominantly people of color) as less than human — “non-persons” in a constitutional sense. It’s what some of us call “Dred Scottification of the other” and it has accelerated over the past four years — not just in immigration.

The whole idea of a “court system” being run by the Executive who also is the chief of enforcement is beyond constitutionally preposterous. It’s a “negative tribute” to the Supremes and other Article III life-tenured judges who have grown so distant from their own humanity and immigration stories as to become willfully blind to the ongoing farce that constitutes “justice” and “due process of law” for asylum seekers and other immigrants in the U.S.

Today’s nearly non-existent “asylum system” is a deadly and illegal “catch 22,” with the Supremes sitting in their marble palace refusing to do the primary task that justifies their continued existence: enforce the Constitution against Government misbehavior and in favor of the “little guys” and the “vulnerable.” No thanks, not up to the job!

The real tragedy is that there are plenty of folks out here with the knowledge, integrity, courage, and ability to establish a legal system that would actually comply with out laws, our Constitution, and further offer the hope of constructively addressing some problems before refugees arrive at our borders. But, they remain “benched,” even by the Biden Team. So the “good guys”are going to keep attacking the corrupt and broken system in court and at the polls for as long as it takes to get some course correction — years, decades, centuries — ask most African Americans how long it takes to achieve the true justice that America promises to all, but historically has only delivered to some.

In the long run, a fair system would undoubtedly accept many more legal refugees and asylum seekers. That’s what happens in refugee situations — it’s the core of what we call “forced migration” — when you sign on to international conventions intended to prevent the “next holocaust,” and you fairly and humanely apply the rules meant to protect refugees and those who face torture. And, as they have in the past, the overwhelming number of refugees and asylees, like the overwhelming majority of immigrants (essentially all of us, except Native Americans) will adapt, fit in, and contribute to the health, wealth, and future of our nation. They will change, but so will we — ultimately for the better!

Sure, America wouldn’t be as white, “Christian” (to the extent that adherence to a nominal Christian denomination, rather than actually performing Christ’s extremely difficult, self-sacrificing, risky, compassionate mission, defines Christianity), and nominally heterosexual as it was when White Nationalist myths and whitewashed history ruled the roost. But, it would be a better nation — one that actually has a chance of prospering, realizing the full potential of all its residents, and leading the world in the 21st century. A nation that could devote more human, natural, and monetary resources to building and exporting greatness, rather than to an endless stream of cruel, inhuman, stupid, and wasteful enforcement and deterrence gimmicks.

Bottom line, folks are going to come to America, as they have throughout history. Some will stay, some won’t. But, come they will, unless and until those like Trump and the GOP create such a mess that our own people start fleeing to foreign shores. Immigration, regardless of status, is a sign of strength. Xenophobia a sign of fatal weakness.

Our real choice isn’t whether we want to “close” borders, bar refugees, and abuse children as the Cottons, Cruzes, Millers, and Hawleys advocate. It’s whether we create a robust, orderly, rational legal system to screen, regulate, and distribute the inevitable flow or whether, as we have for the past decades, we force millions to reside and work underground — part of an “extralegal” or “black market” system that pols of both parties and those who profit from that underground system have created.

Sprawling mismanaged enforcement bureaucracies, dysfunctional “courts,” armies of publicly-paid lawyers defending the indefensible, for-profit civil prisons, big agriculture, hospitality giants, loads of upwardly mobile professionals who need child care to pursue careers, communities that live off of marketing ethnic culture, meat packing conglomerates, architects and construction firms who are “building America,” even news media fixated on hyping the problem rather than fixing it (see, e.g., yesterday’s Biden press conference), the list of those who profit from a talented, hard working, reliable, loyal, yet politically and socially disenfranchised, workforce is endless.

Even the GOP’s “Cotton-Cruz crowd” benefits from having an imaginary enemy to rant and rail and gin up hate against — safe in the knowledge that the tanking of our economy, upheaval of society, and possible threat to their privilege that would result from realizing their disingenuous call to boot the entire undocumented population will never happen. Their kids and grandkids can continue to reap the privilege that comes from exploiting an essential, yet politically neutered, workforce. It’s really more about institutionalizing racism to maintain economic and political power over the eventual non-white majority that drives their bogus and ugly narratives.

We can degrade ourselves as a nation, but it won’t stop human migration!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! It’s a vision based on a written promise, not a “pipe dream!”

PWS

03-26-21

WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

Gabe Gutierrez reports for NBC Nightly News:

https://www.nbcnews.com/nightly-news/video/on-the-ground-along-the-texas-border-amid-surge-108780101899

****************

Reminds me of the essay I recently posted from my friend, Don Kerwin at CMS:

The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…

The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.

https://immigrationcourtside.com/2021/03/18/%e2%9a%96%ef%b8%8f%f0%9f%97%bdmore-truth-about-the-southern-border-from-one-of-americas-%f0%9f%87%ba%f0%9f%87%b8-leading-human-rights-experts-real-needs-not-fictitious-crises-accou/

Donald M. Kerwin
Executive Director
Center for Migration Studies

It also echoes the words of veteran journalist Marc Cooper, posted by my friend Dan Kowalski over on LexisNexis Immigration Community:

When I was in Mexico reporting on the exodus, I would talk with dozens of migrants who were just a an hour or two away from starting their trek and, to a person, not one of them said they paid any attention to new US laws and regs as they were determined to cross no matter what. And no matter the sacrifices.

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/the-border-news-is-not-new

Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Even the WashPost editorial page writers “get” the reality of human migration in a way the nativist fear-mongers never will:

Yet despite fearmongering by Republicans, the current influx is neither a public health emergency nor a national security threat. The vast majority of those allowed to enter the country will join relatives here while their asylum claims plod along. That wait is too long — it can stretch to three years or more — and the administration insists it will shrink the backlog. It has also earmarked $4 billion in aid from the pandemic relief bill for Central America — with strings attached to prevent its misuse — to attack the conditions that make life miserable there and drive migrants to seek refuge in this country.

https://www.washingtonpost.com/opinions/the-influx-of-migrants-isnt-a-crisis-but-it-could-become-one-without-careful-management/2021/03/19/bced56ba-874d-11eb-8a8b-5cf82c3dffe4_story.html

Trump Dumping Asylum Seekers in Hondiras — Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license

Still, sadly, facts and reality seem largely irrelevant here.

Despite denials from Secretary Mayorkas, the Biden Administration appears to be believing Kevin McCarthy’s BS on some level.

Thursday, the Administration basically negotiated a “lite version” of Trump’s “Let ‘Em Die in Mexico” — essentially trading AstroZenica vaccine (which wasn’t approved for use in the U.S. anyway) for Mexico’s agreement to step up harsh enforcement measures against migrants crossing their Southern Border and to warehouse families arbitrarily rejected without due process by the U.S. under our bogus CDC directive. We already have seen how well that works out!

https://www.washingtonpost.com/podcasts/daily-202-big-idea/biden-will-send-mexico-surplus-vaccine-as-us-seeks-help-on-immigration-enforcement/

Remain in Mexico — A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung

Any way you cut it, the realities of human migration, the lives of the desperate individuals involved, the views of human rights experts and advocates, and our supposed commitment to international conventions, the rule of law, and Constitutional Due Process take a back seat when the “bogus border debate” shifts into high gear.

There is actually a very simple truth here: “Forced migration” is not “optional!” In fact, a number of forced migrants prefer “death in the attempt” to “death in place.”

Therefore, all the “deterrents,” “border militarization,” “Baby Jails,” and “stay home statements” won’t ultimately stop the inexorable flow (although they might temporarily divert, modulate, or vary it — usually just enough for the “powers that be” to declare “victory at sea” as a result of their failed policies while ignoring the human carnage and lost opportunities they leave behind).

Professor Philip G. Schrag
Georgetown Law
Co-Director, CALS Asylum Clinic, Author of “Baby Jails”

Sure, there is a timing factor. Weather, the “business plans” and propaganda of smugglers (Trump’s “enforcement only” policies have been a boon for them in more ways than one, not only boosting their fees, but diverting enforcement resources away from the “real” law enforcement problems at the border involving drugs and human exploitation), and Biden’s pledge to restore humanity and the rule of law to America all factor into the equation in some way.

But, they are not the the primary causes of forced migration, except to the extent that climate change (ignored and worsened by Trump and the GOP) has aggravated the poverty and economic disorder in the Northern Triangle by destroying the livelihoods of many farmers and making their land essentially worthless.

Tone-deaf GOP politicos like McCarthy and Sen. Rob Portman (R-OH) apparently think the solution is to continue to mock the rule of law, violate the Constitution, and simply declare the Southern Border closed forever, al a Stephen Miller. Let families and children “die in place” in their home countries, die on the journey at the hands of other governments, or rot forever in Mexico — “Out of sight, out of mind.” As long as it isn’t happening in our country and being covered by our news outlets, who cares about human lives? That was certainly the Trump approach!

That’s hardly a “solution,” except in neo-Nazi or Soviet-era terms. The harshest and most inhuman approaches will, as they have in the past and continue to do, fail to stop desperate humans who want to survive from doing what’s necessary to save their lives and preserve their families’ futures, even when that interferes with the GOP’s “whitewashed” version of “American greatness.”

The solution involves following Constitutional due process, re-establishing the rule of law (including a radical “reform and replace” of our dysfunctional Immigration Courts), and adhering to our international obligations, both in letter and spirit. It also requires an expanded, much more robust, legal immigration system that reflects the demands of our economy, the needs of migrants, and the realities of human migration, particularly from Latin America. Like it or not, there will be more immigration.

As I have said before: “There are many ways in which we can diminish our own humanity, but none of them will stop human migration.”

Contrary to the GOP blather, immigration, voluntary, forced, coerced, legal, extra-legal, white, non-white, Christian, non-Christian, is what the real America is all about, for better or worse. Overall, immigration is a positive force for America.

Here’s a great essay on the positive nature of immigration by Pedro Gerson on Slate. Pedro is the director of the Immigration Law Clinic at the Louisiana State University Law Center, and a former immigration staff attorney at the Bronx Defenders. The latter organization has been home to a number of notable members of the NDPA.

https://slate.com/news-and-politics/2021/03/border-immigration-crisis-laws-citizenship.html

As Pedro says, human migration to America will continue notwithstanding GOP xenophobes. The only question is whether we will have the wisdom and courage to work with and take advantage of its power in constructive, creative, forward looking ways, rather than trying to “recreate Jim Crow!”

Or, will we continue, as GOP restrictionists urge, to squander resources, goodwill, and human potential on futile efforts to eradicate what is perhaps the oldest and most fundamental phenomenon of human existence?

🇺🇸🗽⚖️Due Process Forever! Restore the rule of law! Fix The Disgraceful, Dysfunctional Immigration Courts, Judge Garland! End White Nationalist racism!

PWS

03-19-21

👎🏻☹️GARLAND GETS OFF TO SHOCKINGLY BAD START AT JUSTICE: Progressive Candidates, Immigration Experts, Asylum Advocates Stiffed Again, As New AG Continues Tradition Of Appointing Prosecutors Without Immigration Experience Or Apparent Judicial Qualifications To Important Immigration Judge Positions!

Dan Kowalski at LexisNexis Immigration Community sends in the following item from the Coast Dispatch (Ocean City, MD):

https://mdcoastdispatch.com/2021/03/18/wicomico-prosecutor-appointed-fed-immigration-judge/

Wicomico Prosecutor Appointed Fed Immigration Judge

Mar 18,2021 by Shawn Soper

William McDermott

NOW HILL — Former Worcester County prosecutor and Wicomico County Deputy State’s Attorney William “Billy” McDermott has been appointed as a federal immigration judge by the U.S. Attorney General.

U.S. Attorney General Merrick B. Garland has appointed McDermott, 35, a resident of Girdletree, as a federal immigration judge assigned to the New York City Court effective March 28. McDermott, a Worcester County native who graduated from Snow Hill High School, served as deputy state’s attorney under former Worcester County State’s Attorney Beau Oglesby.

When Oglesby was appointed to the Worcester County Circuit Court bench in January 2018, McDermott, his top prosecutor, was appointed Ad Interim State’s Attorney for Worcester County. He announced he was running for the office full-time, but lost a narrow election to current Worcester County State’s Attorney Kris Heiser later in 2018.

McDermott was immediately picked up by the Wicomico County State’s Attorney’s Office, where he has served as lead prosecutor ever since before his appointment as a federal immigration judge this week. As deputy state’s attorney for Wicomico County, McDermott has prosecuted many important cases over the last few years, including the Jamel Gould homicide trial, the Brendon Fields homicide trial, the Jonathan Megee homicide trial, the Barbara Pilchard animal abuse trial and the Salisbury University hate crime graffiti case, for example.

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Outside the courtroom, McDermott has assisted in the creation of the new Prosecution Integrity Unit. He has also testified in Annapolis on several pieces of important public safety-related legislation and led the first annual Wicomico County State’s Attorney Summer Camp for youth.

“We are incredibly excited and proud of Billy’s appointment,” said Wicomico County State’s Attorney Jamie Dykes. “This may by the opportunity of a lifetime for him and his family, and we know that our country will be well-served by those qualities that will make him an excellent judge.”

. . . .

*********

Read the complete article at the link.

Short “honeymoon!” Most disappointing from an Administration and AG who claim a commitment to justice for asylum seekers and other migrants!

Nothing personal against Judge McDermott. He sounds like a decent guy. He might be well-qualified to be a U.S. Attorney, an official in the DOJ’s Criminal Division, or for dozens of other positions in the Federal Bureaucracy. He might even prove to be better than some of the Immigration Judges now on the bench.

But, the idea that he is the best qualified individual to be a U.S. Immigration Judge is facially absurd. Most of us could think of dozens of much better qualified candidates, just in the NY area.

As I always say, first impressions are lasting impressions. Sadly, Judge Garland has chosen to start by thumbing his nose at those of us committed to immigrant justice and a better Immigration Judiciary. I see no excuse for this tone-deaf appointment.

It looks like the only way the NDPA and the forces of equal justice will get Garland’s attention is by continuing to sue, sue, sue, resist, agitate, and win until we can force change! Sure, it’s dumb and counterproductive on the part of the Biden Administration. Sure, we expected better from Judge Garland.

But, hey, what else is new? If Democratic politicos ever took the time to understand EOIR and its potential for good or evil, we wouldn’t have the unmitigated mess we have today! And, there is no viable plan in place to fix it, nor have we seen the type of consciousness about the ongoing mockery of justice at EOIR necessary to start fixing the American justice system!

🇺🇸🗽⚖️Due Process Forever. A “Built to Fail” Immigration Judiciary, Never!

PWS

03-18-21

⚖️🗽MORE TRUTH ABOUT THE SOUTHERN BORDER FROM ONE OF AMERICA’S 🇺🇸 LEADING HUMAN RIGHTS EXPERTS: “Real Needs, Not Fictitious Crises Account For The Situation at US-Mexico Border,” By Donald Kerwin Center For Migration Studies

In a new essay for the Center for Migration Studies of New York (CMS), CMS’s Executive Director Donald Kerwin writes:

The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…

The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.

READ MORE

*************

Thanks Don for speaking out against the scandalous GOP complete “border BS,” all too often parroted by the so-called “mainstream press.” Read the rest of Don’s essay at the link.

Don has spent his entire career solving migration and human rights problems. The Biden Administration and everyone who believes in American democracy should listen to “practical experts” like Don, rather than ignorant, racially-motivated GOP politicos and White Nationalist nativists spouting the “same old, same old” myths, fear-mongering, and unhelpful “non-solutions.”

If xenophobic rhetoric, cruelty, officially-sanctioned child abuse, evading our own legal and humanitarian responsibilities, and “enforcement only” were the “solutions,” the “problem at the Southern Border” — which has existed in one form or another for over a half century, would long ago have been solved. We can’t solve humanitarian situations that create forced migration with unilateral law enforcement gimmicks and cruelty toward the humans fighting for their lives. Human migration long pre-existed the formation of nation states and establishment of national boundaries.

Administration after administration, of both parties, have squandered time and taxpayer money on unsuccessful efforts to “enforce their way” out of forced migration situations. Contrary to GOP blather, Democratic Administrations have been almost as fixated as the GOP with unsuccessfully “detaining, deterring, and enforcing” their way out of human problems that demand more thoughtful human solutions.

All Administrations at some point prematurely claim that their efforts have “succeeded.” None actually have succeeded in addressing the causes of the migration. Therefore, none of these “false solutions” proves “durable.”

Significantly, Don is one of the few commentators to fully grasp the integral connection between the Trump regime’s complete destruction of the integrity of the Immigration Courts and its lawless, yet highly ineffective, border policies.

Real solutions don’t kill, harm, and maim refugees and forced migrants, encourage criminal cartels and corrupt foreign officials to prey on them, and stack up desperate humans in dangerous conditions just across the border because US Government officials were too biased and incompetent to operate under any semblance of the rule of law.

We can abide by our own laws, international norms, our Constitution, human decency, and common sense. It isn’t rocket science.

But, it does require a combination of expertise, courage, humanity, and practical problem solving that has been conspicuously absent from our governing structure since 2017, and severely undervalued before that.

Also, it’s certainly not that the Biden Administration has suddenly re-established due process and the rule of law at the border. Far from it!

The vast majority of those arriving at the border, even those who are applying at legal ports of entry, are unceremoniously and summarily removed without any process at all, let alone due process of law. This is all based on a largely bogus Trump-initiated exercise of authority by the CDC to use COVID-19 as a pretext to suspend the rule of law and constitutional due process at the border.

Moreover, we shouldn’t forget that even with the Biden Administration’s gradual efforts to re-establish a legal process for asylum seekers, unaccompanied children are still being held in Government detention for far longer than the 72-hours permitted under law. This problem won’t be solved, as some GOP nativists incredibly suggest, by dumping kids back across the Mexican Border, returning them to danger in their home countries without regard to their individual situations, or forcing them to turn to smugglers to make their way to relative safety in the interior of the U.S.

Nor will it be solved by long-term detention in disgraceful and inhumane “Baby Jails!” Ask my Georgetown Law colleague and author Professor Phil Schrag of the CALS Asylum Clinic about that!

Interestingly, some of the biggest complainers spreading the “open borders myth” are Greg Abbott and other Texas GOP politicos who have prematurely “reopened their state” in the middle of a pandemic in blatant contravention of best medical and public health advice. So, you can summarily dismiss their “crocodile tears” and bogus “hand wringing” about public health and safety.

That’s particularly true since the GOP is just coming off a massive example of how their incompetent mis-governance of Texas caused unnecessary misery and loss of life among Texas residents as a result of a highly predictable and long-foreseen “weather emergency.” Why does the mainstream media often continue to treat these “political hacks,” who couldn’t “govern” their way out of a paper bag, as credible spokespersons on anything, let alone human rights situations of which they have no expertise whatsoever?

🇺🇸🗽⚖️Due Process Forever! Re-Establish The Rule Of Law, Including Full, Robust Humanitarian Protections At The Border & In Our Disgracefully Dysfunctional Immigration “Courts.”

PWS

03-18-21

☹️MEDIA SHOULD STOP GIVING GOP TOTALLY UNWARRANTED “FREE PASS” ON “BORDER BS!” — “The situation under former president Donald Trump was substantially worse from a humanitarian and a pragmatic governing perspective: worse for the migrants, worse for the rule of law and worse for our country.” — Greg Sargent @ WashPost sets the record straight!

Greg Sargent
Opinion Writer
Washington Post

https://apple.news/Axz03Bes6T3ODoCivCDQ96g

Republicans are convinced that attacking President Biden’s border policies will win them the midterms. House Minority Leader Kevin McCarthy (R-Calif.) has gleefully labeled the situation there “Biden’s border crisis.”

In this, Republicans are benefiting from a media debate that has gone off the rails.

There’s a huge hole in this GOP attack, but it’s rarely described clearly in news reports and commentary. You can read endless headlines warning of a “crisis.” But even if that’s so, a crisis relative to what, exactly ?

What’s missing is a serious comparison with the pre-Biden status quo. It’s as if the current situation exists in a vacuum: Before there was no crisis, and now there’s a crisis .

That’s absurd. The situation under former president Donald Trump was substantially worse from a humanitarian and a pragmatic governing perspective: worse for the migrants, worse for the rule of law and worse for our country.

Biden is cleaning up Trump’s mess

It’s true that child and teenage migrants are overwhelming our facilities.

Because they can’t get released alone, they must be held at Border Patrol facilities for 72 hours before getting transferred to the Office of Refugee Resettlement, which places them with relatives or guardians. The ORR facilities are jammed, backlogging border facilities.

This is a terrible situation. But it’s happening in large part because Biden is undoing a Trump policy that should be undone.

Due to covid-19, the previous administration turned away most asylum seekers — without hearings — under a legal provision allowing a temporary block on noncitizens from entering to protect public health.

Biden is no longer applying this provision to unaccompanied children and teenagers (while keeping it for adults), helping fuel child backlogs. But that’s a move in the right direction, both from a humanitarian and rule-of-law perspective.

Coronavirus will be tamed before long, and we have a legal obligation to allow migrants to exercise their right to seek asylum. And as David Bier notes, that provision is not for controlling migrant flows outside a genuine public health rationale. If anything, expelling adults abuses it.

So continuing to use this tool is not a tenable long-term solution to the humanitarian problem, and it’s not in keeping with the rule of law. That requires letting in the kids, and we will have to allow more adults to apply for asylum. The question is how we manage it.

. . . .

******************

Read Greg’s full op-ed at the link.

I understand why Fox News, Breitbart, and the rest of the “truth averse” right wing media shills promote the GOP’s racist, xenophobic “border crisis” myths.

What I don’t get is why the so-called “mainstream media” doesn’t do its homework on the real situation on the border and the Trump-created mess facing Biden in restoring some sense of order and lawful behavior to an intentionally broken and dysfunctional system.

A few journalists like Greg, his WashPost colleague Arelis Hernandez, Cindy Carcamo (LA Times), Nicole Narea (Vox News), and Priscilla Alvarez (CNN), to name some, have taken the time to get it right (or close to right). But, far too many reporters who should know better just repeat the Abbott, McCarthy, GOP disingenuous nonsense without critical analysis or pushback.

And, what’s sorely missing is the perspective of those at the heart of this situation: the kids and families faced with such a desperate situation in their home countries that they are willing to seek mercy and refuge in a country that proudly advertises its lack of respect for their humanity, our own laws, and international norms that are supposed to insure fair and humane treatment.

They aren’t numbers, stats, bar graphs, and trend lines — they are human beings. They assert rights to apply for refuge under international norms that the U.S. has written into laws – laws we have unilaterally decided not to follow.

The overwhelming majority seek not to “evade” authorities, but to turn themselves in to our legal system: A system that functionally no longer exists at our Southern Border thanks to Trump and, to some extent, the Supremes. This is neither a “law enforcement” nor a “national security” crisis — it’s a fundamental breakdown in our legal system and a betrayal of humane values.

That’s the real problem here. It originated long before the Biden Administration. To date, no GOP politico has offered any type of constructive solution. And, too few journalists have held the GOP nativists accountable for their racist-inspired lies, misrepresentations, myths, and lack of any semblance of constructive proposals for rational, lawful, governance — real solutions for problems aggravated by their own toxic, inhumane, and often illegal policies!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-17-21

“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”

It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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👍🏼🗽Thanks, Geoffrey, and Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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🇺🇸🗽⚖️Due Process Forever!

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Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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🇺🇸🗽⚖️Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!

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Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:

Degrading Ourselves As A Nation Won’t Stop Human Migration

By Judge (Ret) Paul Wickham Schmidt

“Courtside” Exclusive

March 26, 2021

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🇺🇸🗽⚖️Due Process Forever! Restore the rule of law! Fix The Disgraceful, Dysfunctional Immigration Courts, Judge Garland! End White Nationalist racism!

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🇺🇸🗽⚖️Due Process Forever. A “Built to Fail” Immigration Judiciary, Never!

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🇺🇸🗽⚖️Due Process Forever! Re-Establish The Rule Of Law, Including Full, Robust Humanitarian Protections At The Border & In Our Disgracefully Dysfunctional Immigration “Courts.”

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🇺🇸⚖️🗽Due Process Forever!

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