"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
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Thanks to Professors Benitezand 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!
Anti-Chinese Poster Public RealmSkeleton in the Closet Public RealmJessica 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.
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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.
President-elect Joe Biden will roll out a sweeping overhaul of nation’s immigration laws the day he is inaugurated, including an eight-year pathway to citizenship for immigrants without legal status and an expansion of refugee admissions, along with an enforcement plan that deploys technology to patrol the border.
Biden’s legislative proposal, which will be sent to Congress on Wednesday, also includes a heavy focus on addressing the root causes of migration from Central America, a key part of Biden’s foreign policy portfolio when he served as vice president.
The centerpiece of the plan from Biden and Vice President-elect Kamala D. Harris is the eight-year pathway, which would put millions of qualifying immigrants in a temporary status for five years and then grant them a green card once they meet certain requirements such as a background check and payment of taxes. They would be able to apply for citizenship three years later.
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The focus on Central America reflects the message that Biden has relayed to senior officials in the region: that he will advocate for policy changes aimed at what drives scores of migrants there to come to the United States illegally to seek safe harbor.
“Ultimately, you cannot solve problems of migration unless you attack the root causes of what causes that migration,” one official said, pointing to the various reasons — from economic to safety — that drive migrants to flee their home countries. “He knows that in particular is the case in Central America.”
Transition officials are aware of recent reports of the increased numbers of migrants at or heading to the border in anticipation of the end of Trump’s presidency, and urged them to stay in their home countries. They emphasized that newly arriving immigrants would not qualify for the legalization program that Biden proposes.
Biden wants to move the refugee and asylum systems “back to a more humane and orderly process,” the official said. But “it’s also been made clear that that isn’t a switch you flip overnight from the 19th to the 20th, especially when you’re working with agencies and processes that have been so gutted by the previous administration.”
Biden hopes to reinstate a program granting minors from Central America temporary legal residence in the United States. The Trump administration terminated the program in August 2017, officials said. The administration also wants to set up a reunification program for Central American relatives of U.S. citizens that would allow those who have been already approved for U.S. residency to be admitted into the country, rather than waiting at home for an opening. The program would be similar to ones that existed for Cubans and Haitians but also were ended by the Trump administration.
The Biden proposal also would put in place a refugee admissions program at multiple processing centers abroad that would better help identify and screen those who would qualify to be admitted as refugees into the United States.
As for border enforcement, the plan calls on the Department of Homeland Security to develop a proposal that uses technology and other similar infrastructure to implement new security measures along the border, both at and between ports of entry. Biden has long vowed not to expand the border wall Trump has marginally extended.
“This is not a wall; this is not taking money from [the Department of Defense],” a transition official said, referring to how Trump helped to finance his wall after pledging Mexico would pay for it. “It’s a very different approach.”
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Read the complete article at the link.
This is a welcome change from the poorly conceived, often ill-informed approach to immigration by the Obama Administration. It appears that Biden and Harris have actually “listened to the experts” and acted a accordingly.
The concentration on addressing the reality of Central American migration and dealing honestly and constructively with its root causes in a sensible and humane way is also refreshing. Using intelligence and technology to address real border security issues (as opposed to squandering resources on politically manufactured ones) also shows promise.
Julia Edwards Ainsley NBC Correspondent Justice & DHS Outside Justice Dep’t Photo: Victoria Pickering https://www.flickr.com/photos/vpickering/
Many of the latter wereenergized by the Trump/DHS program of White Nationalist racist fear-mongering and intentionally false anti-immigrant, anti-due-process narratives. That’s what “applied malicious incompetence” looks like — DHS and EOIR are two of the most egregious examples in a regime that raised it to an “art form.” It will take an aggressive and far-reaching “house cleaning” to get these agencies that have abandoned the common good and now operate “on the dark side” back on track.
The immediate “knee-jerk opposition” to rational, practical, fact-based immigration reform by notorious White Nationalist racist Sen. Tom Cotton (R-ARK) shows that Team Biden is on the right track to disavow the toxic institutionalized racism and biased policies of the Trump regime and move America along the path to racial justice and realistic, progressive immigration policies that will further the national interest and lead to a better future for all!
It’s a great, if long overdue, start to getting beyond Jim Crow and “Dred Scottification” and saving and enhancing our democracy! But, the proof will be in the results!
Biden, of course, will also face the formidable challenges of dealing with the human carnage left behind by the Trump regime’s disastrous mis-handling of COVID-19, economic inequality, the environment, racial justice, and foreign policy where American “prestige” has plummeted to levels not seen since the days of the Barbary Pirates.
He also must address a failing Federal Justice System that, particularly at its appellate levels, did not effectively stand up to the Trump regime’s unrelenting assault on human decency and American democracy. Indeed, Justice Sonia Sotomayor, a consistently competent and courageous Justice among our failing Supremes, offered this final harsh but true assessment of her GOP colleagues’ malfeasance in a death penalty case: “This is not justice.”https://www.nbcnews.com/news/latino/not-justice-justice-sonia-sotomayor-offers-fierce-dissent-death-penalty-n1254554
You could say that about almost everything in the departing, defeated White Nationalist regime!
I’ll note for the record that among other things, the Supremes’ tone-deaf majority has been responsible for letting bona fide asylum seekers rot in squalor in camps in Mexico while waiting for non-existent “due process,” and also authorized the imposition of potential death sentences and torture on asylum seekers within our jurisdiction without any whit of due process.
The GOP majority’s disgraceful failure to stand up for voting rights of African Americans, Latinos, and other voters of color has also deepened racial injustice in America and helped usher in a horrible “Jim Crow Revival” pushed, incited, and enabled by the GOP, “The Party of the Failed Insurrection.”
Any competent first-year law student might ask “How could this happen in America?” That’s a question that Roberts and his gang of fellow Trump enablers and apologists will have to answer before the “court of history!”
Thanks to our leading “Warrior Queen” Ilyce and her team of knightesses and knights who took the lead on this phase of the never ending battle for “truth, justice, and the American way.”
I trust that it will take more than another pathetic “Alternative Fact Sheet” 🤥 to save the sorry bunch @ “EOIR’s Clown Tower”🤡🦹🏿♂️ in Falls Church from accountability for their sycophancy, false narratives, and constant assaults on due process, the rule of law, truth, and human decency. 👎🏻🏴☠️☠️⚰️🤮 https://www.justice.gov/eoir/page/file/1161001/download
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Indicative and very telling that as justice further deteriorates, backlogs mushroom, productivity drops, public outrage grows, chaos reigns, (already rock bottom) morale plummets, and vulnerable humans suffer, the “malicious incompetents” 🤡🦹🏿♂️ at EOIR spend time and public resources on this nonsense!
There will be neither racial justice nor social justice in America without “radical due process reform” that ends forever the disgraceful “Dred Scottification” of “the other” (particularly migrants of color, women, families, and, most disgustingly, children) by the EOIR Clown Courts!🤡🦹🏿♂️☠️ To paraphrase Rev. King, “Injustice to one is injustice to all.”
Due Process Forever!⚖️🗽🇺🇸👍🏼 EOIR’s Assault On Asylum Seekers, Never!👎🏻🏴☠️
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:
The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.
In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.
Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.
The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.
The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.
Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.
Packing the Board of Immigration Appeals
The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.
The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.
The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.
A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.
Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)
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Read Gregory’s complete article at the link.
Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)
According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:“In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”
With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!
Enough of the malicious incompetence, institutionalizedracism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing“crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.
The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!
There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!
This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?
By Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Nov. 12, 2020
I. INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE
In Matter ofKasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.
Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.
Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.
Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.
How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?
I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!
II. BACKGROUND
To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.
Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.
This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.
Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.
Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.
This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.
It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.
Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.
It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.
Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.
Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.
These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).
Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.
Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”
III. CROSSHAIRS
Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”
Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.
In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.
Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.
IV. THE ATTACK
While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.
First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.
He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.
Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.
For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.
Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.
Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.
They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.
Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”
V. THE UGLY RESULTS
Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.
Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”
However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.
At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”
VI. WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?
The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.
The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.
Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.
Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!
That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”
The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.
In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.
The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.
Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.
I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”
For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!
The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.
Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!
It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!
So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!
Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!
No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!
The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!
Due Process Forever! Complicity & Complacency, Never!
WASHINGTON — President Donald Trump‘s senior adviser Stephen Miller has fleshed out plans to rev up Trump’s restrictive immigration agenda if he wins re-election next week, offering a stark contrast to the platform of Democratic nominee Joe Biden.
In a 30-minute phone interview Thursday with NBC News, Miller outlined four major priorities: limiting asylum grants, punishing and outlawing so-called sanctuary cities, expanding the so-called travel ban with tougher screening for visa applicants and slapping new limits on work visas.
The objective, he said, is “raising and enhancing the standard for entry” to the United States.
Some of the plans would require legislation. Others could be achieved through executive action, which the Trump administration has relied on heavily in the absence of a major immigration bill.
AUG. 25, 202005:51Some of the plans would require legislation. Others could be achieved through executive action, which the Trump administration has relied on heavily in the absence of a major immigration bill.
“In many cases, fixing these problems and restoring some semblance of sanity to our immigration programs does involve regulatory reform,” Miller said. “Congress has delegated a lot of authority. … And that underscores the depth of the choice facing the American people.”
Miller, who serves in a dual role as an adviser in the White House and to Trump’s re-election campaign, stressed that he was speaking about second-term priorities only in his capacity as campaign adviser.
Immigration has been overshadowed by surging coronavirus case numbers and an economy shattered by a nearly yearlong pandemic, but it was central to Trump’s rise to power in the Republican Party, and Miller has been a driving force for the administration’s often controversial policies to crack down on illegal migration and erect hurdles for aspiring legal immigrants.
Miller has spearheaded an immigration policy that critics describe as cruel, racist and antithetical to American values as a nation of immigrants. He scoffs at those claims, insisting that his only priority is to protect the safety and wages of Americans.
And he said he intends to stay on to see the agenda through in a second term if Trump is re-elected.
In the near term, Miller wouldn’t commit to lifting the freeze on new green cardsand visas that’s set to expire at the end of the year, saying it would be “entirely contingent” on governmental analysis that factors in the state of the job market.
Asked whether he would support reinstating the controversial “zero tolerance” policy that led to families’ being separated, Miller said the Trump administration is “100 percent committed to a policy of family unity,” but he described the policy as one that would keep families together in immigration detention by changing what is known as the Flores settlement agreement.
Over the past year, the administration has sought to amend the Flores agreement, which says children can’t be held over 20 days in Immigration and Customs Enforcement detention. If it succeeds, immigrant families could be detained indefinitely as they await their day in immigration court.
On Trump’s watch, asylum grants have plummeted. Miller wants to keep it that way. He said a second-term Trump administration would seek to expand “burden-sharing” deals with Honduras, Guatemala and El Salvador that cut off pathways to the U.S. for asylum-seekers.
“The president would like to expand that to include the rest of the world,” Miller said. “And so if you create safe third partners in other continents and other countries and regions, then you have the ability to share the burden of asylum-seekers on a global basis.”
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Read the complete report at the link.
Kids in cages, refugees returned to torture and death, ethnic communities terrorized, lives destroyed, an economy and a society (make no mistake about it, immigrants will be essential to America’s recovery, future prosperity, and competitiveness) in tatters, tens of millions wasted on unnecessary and counterproductive Gulags, walls, and cruel enforcement while the Gruppenfuherer and his fellow human rights criminals remain at large and and an existential threat to our nation and our world!
To state the obvious, this has little or nothing to do with protecting American workers. Trump has shown that he couldn’t care less about the health, safety, and welfare of American workers (or frankly anybody except himself) except at election time. Immigration and immigrants create jobs and economic prosperity for America.
Also, even Miller couldn’t possibly believe that the Democratic House will pass any part of this racist manifesto. Truth is, Trump failed to pass any meaningful immigration legislation in four years, even when the GOP controlled all the political branches! In fact, Miller’s nativist legislative game-plan “poisoned the well” and was soundly defeated in both Houses of Congress! So, he intends to use Executive misrule, bureaucratic corruption, and a fascism-enabling, racially tone-deaf GOP Supremes’ majority to rule without Congress (as has been the case for the last four years.)
But make no mistake: the real “Reichsplan” here is directed at further institutionalizing racism, spreading hate, and targeting Americans of color. That’s what the regime’s “Dred Scottification” is really about. Reducing or eliminating YOUR Constitutional rights! Immigrants are the “usual suspects.” But, by no means will they be the only victims of Gruppenfuhrer Miller’s White Nationalist, racist, hate extravaganza.
As reported at the link above, The Biden-Harris campaign immediately and forcefully condemned the Gruppenfuhrer’s plans for “ethnic cleansing:”
“We are going to win this election so that people like Stephen Miller don’t get the chance to write more xenophobic policies that dishonor our American values,” Molina said. “Unlike Trump, Vice President Biden knows that immigrants make America stronger and helped build this country.”
America is immigration! It’s our past, present, and future! When we deny those truths, we deny ourselves and betray our own humanity!
Get out the vote for Joe, Kamala, and the Dems! Top to bottom of the ballot! Our lives and the future of American Democracy depend on it! Don’t let Gruppenfuhrer Miller and his neo-Nazi agenda, the GOP’s dark vision of the future, destroy our democracy! Vote the party of corruption, hate, and neo-fascism out!
The Government appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J.), granting Carlos Alejandro Velasco Lopez’s petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. His habeas petition challenged the procedures employed in his bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk. We hold that the district court correctly granted the petition, and provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that Velasco Lopez was either a danger or a flight risk.
KEY QUOTE:
The irony in this case is that, in the end, all interested parties prevailed. The Government has prevailed because it has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community. Velasco Lopez has prevailed because he is no longer incarcerated. And the public’s interest in seeing that individuals who need not be jailed are not incarcerated has been vindicated.
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Judge Parker is correct insofar as he cogently states what should be a “win-win-win” under a functioning Government. I wholeheartedly join lead counsel Julie Dona of the Legal Aid Society, NY, in appreciating and recognizing Judge Parker’s understanding of the grim realities of today’s mal-functioning Immigration Courts and the important Constitutional rights being abridged by DHS & EOIR (essentially one and the same under the Trump kakistocracy).
But, that statement of how Government should be functioning glosses over the unfortunate reality of the Trump regime’s lawless, White Nationalist, nativist immigration agenda. The Trump regime doesn’t seek to create “win-win-win” situations! Instead, they seek to make political statements, dehumanize and degrade “the other,” and promote the biases of their “base” over sound public policy that benefits the common good.
The purpose of imprisonment in the Trump Gulag all too often has little or nothing to do with the legal criteria of danger to the community or flight risk. Rather, detention in the Gulag is used by the Trump regime’s DHS, with the connivence of the DOJ and often the courts, to punish individuals who choose to assert their legal rights; make it more difficult for them to obtain effective representation; and to coerce them into abandoning viable claims for relief, appeals, and judicial review. It’s all about punishment and deterrence, not mainly about the public interest, which is ill-served by most of Trump’s biased and counterproductive immigration policies.
DHS detention in the Trump era primarily serves Trump’s political interests and the interests of those running the for-profit prisons comprising much of Trump’s New American Gulag. Any time Trump’s policies match up with a legitimate national interest, it’s purely happenstance, not part of some overall plan to govern in the public interest.
Miller’splans are so explosively ugly, overtly racist, and anti-American that they are being kept under wraps (for now) because of a (quite legitimate) fear that they could drive the small, yet potentially significant, minority of voters of color that Trump needs to have any chance of extending his rule to do something rational and in their self-interest: Vote for Biden-Harris. Look for things like eliminating birthright citizenship, eradicating all refugee and asylum laws, making it difficult or impossible for family members and people of color to immigrate legally, a wave of summary deportations, deporting “Dreamers,” and exterminating every last ounce of compassion and humanity from our laws. If you think that Black Lives don’t matter much to Trump and his cronies, just wait until he turns the Gruppenfuhrer loose! Think the Federal Courts will stop him? Just look at Trump’s “wholly owned and proud to brag about it” Supremes’ majority! And, he’s also “stacked” — effectively “packed” — the lower Federal Courts with loyalist ideologues.
America can no longer afford life-tenured judges who treat Trump as “normal” and are unwilling or incapable of “connecting the dots” among the dehumanization and demonization of migrants, institutionalized racism, and the end of American democracy. Immigrants’ rights are human rights; human rights are Constitutional rights; dehumanization of “the other” dehumanizes us all!
It’s past time that America stopped granting the privilege and responsibilities of life-tenure to those who won’t publicly adhere to those fundamental truths! Not rocket science! Just basic Constitutional law and human decency! Better judges for a better America! It all starts with a better President and a better Senate! That’s why this election might be our final chance to take back our country and preserve our democracy!
Tal Kopan Washington Reporter, SF ChronicleHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)
Justice Department cancels diversity training, including for immigration judges
WASHINGTON — The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.
The memo, dated Oct. 8, is in response to an executive order issued by President Trump last month that labeled racial bias training as “offensive and anti-American race and sex stereotyping and scapegoating.” It was issued by Lee Lofthus, the assistant attorney general for administration.
“To ensure compliance with requirements specific to Diversity and Inclusion (D&I) training for employees, DOJ Components are instructed to suspend all D&I related training, programs, activities, and events that employees are required or permitted to attend while on Government-paid time,” Lofthus wrote.
Any new diversity training must be approved by the federal Office of Personnel Management, Lofthus said. He offered no timeline for resuming training.
The suspension applies to all divisions of the Justice Department, but could be of particular importance to the immigration courts.
Unlike the independent federal judiciary, immigration judges who hear the cases of asylum seekers and others trying to stay in the U.S. are employees of the Justice Department, hired by the attorney general.
Those cases often include some of the most sensitive stories of trauma from around the world, including many from women who say they have been raped, trafficked or abused in countries that frequently do not punish men who commit such acts. Asylum seekers also include people who say they have been persecuted because of their religious beliefs and LGBTQ individuals from countries where such identities are criminalized.
The Justice Department did not immediately respond to a request for comment.
Rep. Zoe Lofgren, D-San Jose, who chairs the House Judiciary subcommittee on immigration, said the Justice Department, like other workplaces, “should always aim for more diversity, not less.”
“The suspension of this training will also apply to our nation‘s immigration courts and could lead to less inclusive and fair-minded judges,” Lofgren said in a statement to The Chronicle. “This is yet another reason why the immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.”
The union that represents immigration judges noted that they interact with a diverse group of people in court, which it said makes such training important.
“The National Association of Immigration Judges values diversity and inclusion in the workplace as it ensures that the Immigration Judges can meet the needs of the diverse group of stakeholders with whom we interface.” Mimi Tsankov, the chair of the group’s committee on gender equity and a judge in New York, said in a statement. “Immigration Court workplace training on diversity and inclusion reflects a commitment to its importance and ensures a judicial bench ready to respond to the needs that our cases demand.”
President Trump’s attorneys general have paid particular attention to the immigration courts as part of their efforts to restrict immigration to the United States, by implementing policies that have reduced judges’ discretion and made it harder for immigrants to claim asylum.
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Those with access should go to the above link for the full article. It also gives Tal a boost from the “hits.”
Glaring, intentional lack of diversity on the bench along with racial, gender, religious, and ethnic insensitivity have become an endemic problem at EOIR. But, given a regime and a DOJ that pride themselves on racism, misogyny, xenophobia, along with disdain for professionalism, expertise, ethics, humanity, and the Constitution, that’s not surprising.
Representative Lofgren and the NAIJ’s Judge Tsankov are absolutely correct. It’s time to put an end to the disgraceful abomination at EOIR and create a real, independent court system dedicated to due process, fundamental fairness, and promoting human dignity!
Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!
Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”
Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”
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Read the full article at the link.
Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’smismanagement and misuse of the Immigration Courts.
Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.
Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!
Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.
Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!
First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.
Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.
It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.
In March 1876, Bradley and his fellow Supreme Court justices decreed that he was correct in rescinding the convictions of William Cruikshank and the other white defendants, ruling that although the 14th Amendment gave the federal government authority to act against violations of civil rights by state governments, it did not apply to acts of racist violence by private citizens against other citizens. Furthermore, the court ludicrously declared, the prosecution failed to show that crimes against the murdered Black men were committed “on account of their race or color.” All 98 defendants escaped accountability, emboldening white supremacists across the land.
The Cruikshank decision reinforced a grotesque judicial precedent that severely limited the power of the federal government to prosecute violent crimes against the formerly enslaved. Given free rein by the Supreme Court, white supremacists continued their coordinated campaign of terror against Black people, hastening the demise of Reconstruction. By 1877, every Southern state had been “redeemed,” and they would remain under the control of their white redeemers for decades.
By eviscerating crucial protections of the 14th Amendment, the Cruikshank ruling ensured that the most basic constitutional rights of Black citizens would be denied well into the 20th century. The crabbed, inhumane logic of Cruikshank provided legal cover that allowed systemic racism to flourish and denied civil rights to millions of Americans, perpetuating what John Lewis called a “soul-wrenching, existential struggle.”
A straight line can be drawn from Colfax and Cruikshank to the race riots in East St. Louis in 1917 and in Omaha, Chicago and other cities two years later; to the abhorrent crimes committed in the 1921 Tulsa race massacre; to the criminal brutality unleashed on African-Americans in Selma and Birmingham, Ala., in the 1960s; to the present-day instances of police and white nationalist violence in Ferguson, Mo., Charlottesville, Va., and now Kenosha, Wis.; to the shameful, plain-sight attempts to suppress the Black vote in the 2020 elections. Lest we forget that white supremacy and racial injustice are still endemic in America, we need to remember Colfax and the lasting harm it wrought.
William Briggs is an emeritus professor of mathematics at the University of Colorado, Denver, and author of “How America Got Its Guns: A History of Gun Violence in America.” Jon Krakauer is the author of numerous books, including “Into Thin Air” and “Missoula.”
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Read the full article at the link.
I’ve previously highlighted the Colfax Easter Massacre and theSupremes’ disgusting historical ties to racism, White Supremacy, and the suppression and murder of people of color on Courtside!
It’s an ugly and disturbing story. But, the worst part is that the ugliness is being repeated in the bogus, White Supremacist friendly jurisprudence of the Roberts’ Court’s GOP majority!
Great deference is given to the illegal and overtly racist schemes of Trump, Miller and their cronies. By contrast, short shrift is given to the voting rights of African Americans and Hispanic Americans. The rights and lives of asylum seekers and other migrants are treated as beyond the realm of humanity. Who cares what abuses the scofflaw regime heaps on them. After all, they aren’t really “persons” entitled to exist.
Pulling out a few toenails? Hey, A-OK with the JR Five just as long as it’s not their toenails and their exalted positions protect them from having to hear the screams of the tormented or get blood and gore all over their pristine black robes!🤮⚰️☠️👎🏻
It’s called “Dred Scottification” or “dehumanization of the other.” It has no place in 21st Century America. And, neither do the public officials and complicit Justices and judges who enable rampant racism and inhumanity. The “JR Five” would have felt right at home on the “Cruikshank Court.” They are masters at finding disingenuous legal gobbledygook to avoid protecting the rights and lives of people of color from invidiously Executive tyranny and abuse!
Had enough? If we want equal justice under law in America, we must start by taking back control of our nation at the ballot box. Get enough voters and even the Trump regime and the GOP Supremes won’t be able to suppress the results and keep the majority from exercising political power.
This November, vote like your life, our nation, and the world’s future depend on it! Because they do! And, this may be our last chance to save our sinking Ship of State!
She was one of the most recognizable activists in Nicaragua, protesting a government that has jailed and killed its opponents. Her photo ran in national newspapers; one called her the “face of the rebellion.” Her video of police firing at student protesters went viral. Her confrontations with the government were cited by the U.S. State Department.
Valeska Alemán, 22, paid a price for that notoriety. She was detained twice. Interrogators pried off her toenails. When she decided to leave the country, the United States seemed a natural destination: The Trump administration has been vocal in its opposition to Nicaragua’s crackdown — and its support of the country’s young protesters.
But by the time Alemán arrived at the U.S. border in July, the administration had launched a pandemic-era policy that sends Nicaraguans directly back to their country without letting them apply for asylum. Seventeen days after crossing into Texas, she was put on a plane back to Managua with more than 100 other Nicaraguans, almost all of them opponents of President Daniel Ortega.
Her backpack was full of documents to show U.S. immigration officials that the government appeared ready to kill her. The officials wouldn’t look at them. When she landed back in Nicaragua, it felt as if she was carrying a ticking bomb, proof that she was trying to flee and accuse the government of abuse.
“I thought, ‘Okay, so they’re going to throw me straight back in jail,’ ” Alemán said. “ ‘I’m going to be tortured all over again.’ ”
Another expelled asylum seeker, Moises Alberto Ortega Valdivia, 38, swallowed five pages of his asylum paperwork, panicked that Nicaraguan police would find it.
Since taking control in 2017, the Trump administration has narrowed the pool of people who qualify for asylum and sent tens of thousands of applicants back to Mexico to await their hearings from squalid tent camps and shelters.
During the coronavirus pandemic, the administration has gone further, effectively shutting the asylum system down. Most Central American applicants are simply escorted back to Mexico. But Nicaraguans — including political protesters to whom the United States has given rhetorical support — are flown back to the country they tried to escape.
The administration is using a public health order known as 42 U.S.C. that cites “the danger to the public health” of migrants to justify the asylum system’s closure. Mexico has agreed to accept Salvadorans, Guatemalans and Hondurans. Other nations, such as Cuba and Venezuela, have refused to accept chartered U.S. deportation flights of their own citizens.
In the case of Nicaragua, the United States is sending asylum seekers back to a country the State Department describes as violently repressive.
“Throughout Nicaragua, armed and violent uniformed police or civilians in plain clothes acting as police (‘para-police’) continue to target anyone considered to be in opposition to the rule of President Ortega,” the department says in a travel warning. “The government and its affiliated armed groups have been reported to arbitrarily detain pro-democracy protestors, with credible claims of torture and disappearances.”
U.S. Customs and Border Protection did not respond to multiple requests for comment. In a statement, the State Department said it “condemns all forms of political oppression, especially that orchestrated by the corrupt Ortega regime.” But it would not comment on the expulsion of Nicaraguan asylum seekers.
Alemán traveled with a family of Nicaraguan asylum seekers to the Texas border. All were university graduates and students of international affairs. Before they left, they reviewed the asylum laws on a U.S. government website.
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Read the rest of Kevin’s article at the link.
Section 208 of the Immigration & Nationality Act says:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
Very clear. What happened to refugee Valeska Alemán and other asylum seekers at the hands of the Trump regime was totally illegal (not to mention immoral); essentially a “crime against humanity” for which Trump, Miller, Wolfman, and the other “perps” should be held accountable.
But, this is Trump’s America where a majority of the Roberts’ Court favors White Supremacy, racism, and crimes against humanity over the Constitutional, statutory, and human rights of people of color. It’s called “Dred Scottification.”It’s a national and international disgrace that will stain our nation forever!
Think racial justice and equal justice in America will be achieved without a better Executive, throwing the GOP out of legislative power, and better Federal Judges? Guess again!
As he seeks a second term, [Trump has] also made it clear that he hasn’t finished. He still wants to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program once and for all, drive out the millions of unauthorized immigrants living in the US and curb their political power, enact what he calls “merit-based” immigration reform, and pursue a slew of restrictive immigration regulations.
The US has already seen the harms of Trump’s first-term immigration policies, which could cut deeper if he’s given another four years: Legal immigration is plummeting, stymying growth in the labor force and threatening the US’s ability to attract global talent and recover from the coronavirus-induced recession. The US has abdicated its role as a model for how a powerful country should support the world’s most vulnerable people. And the millions of immigrants already living in the US, regardless of their legal status, have been left uncertain of their fate in the country they have come to call home.
Other concerns — including the coronavirus, racial justice, and unemployment — have recently eclipsed immigration as a top motivating issue for voters. But for Trump, who currently lags former Vice President Joe Biden in the polls, restricting immigration proved a winning message in 2016, and he will likely try to replicate that strategy again.
“It’s the thing he keeps going back to,” Douglas Rivlin, director of communication at the immigrant advocacy group America’s Voice, said. “It is his comfort zone — to go after people of color and turn them into sort of the specter of scary, violent people as a political strategy.”
. . . .
Whether any version of that proposal will get traction would largely depend on the makeup of the next Congress and whether Democrats win a majority in the Senate. Most immigration policy experts aren’t convinced that Trump will see success in negotiating with Democrats, but the political calculus could change if Democrats control both chambers of Congress and need Trump to sign their legislation.
It also depends on Republicans acting as a unified front on immigration. So far, pro-business Republicans aren’t challenging the restrictions and travel bans Trump has imposed during the pandemic, and as the US continues to grapple with its worst economic crisis since the Great Depression and more than a million Americans are out of work, they will likely continue to follow the president’s lead. But in the long term, they might find themselves at philosophical odds with the anti-immigrant wing of the party.
“I think the reality of the economics of immigration and the sort of more ideological agenda are going to come into conflict,” Rivlin said.
But if Trump can overcome those hurdles, the prize would be substantial: the ability the leave his mark on the immigration system beyond a series of executive actions that could be reversed by the next Democrat who assumes office.
“Merit-based immigration reform would be a legacy for him on immigration, more so than a border wall,” the Bipartisan Policy Institute’s Cardinal-Brown said. “That would have impacts on the future of immigration for decades.”
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Read the rest of Nicole’s gloomy yet (as always) well-written outlook at the link.
Don’t be fooled. In “Trumpspeak” the term “merit-based” means “race-based” (favoring, of course, White guys, preferably rich, English speaking, and prospective GOP toadies). Again, to state the obvious, a “kakistocracy” by definition lacks the ability to recognize and reward true “merit.” That’s why it’s a “kakistocracy,” not a “meritocracy!”
America is a nation of immigrants. To change that, Trump will have to destroy America, which, as this week’s “clown show of hate, fear, loathing, and complete nonsense” (a/k/a “The GOP Convention”) shows, he and his followers are perfectly willing to do.
This perverted “vision” of America also ties in well with the Trump/GOP approach to racism and social justice: Ignore injustice and double down on violence administered by the largely White power structure against communities of color. Kill, maim, blame, punish, jail, intimidate, disenfranchise, and dehumanize the victims rather than looking for cooperative ways to solve the problems. Sow fear, hate, and division to insure that institutionalized racism and White grievance will be indelibly ingrained in America! As these self-inflicted grievances play out, the Trump family and its cronies will use the ensuing chaos as a diversion to loot the Treasury and use what remains of “government” to further their own personal interests, without regard to the common welfare. Nice folks!
It’s doubtful that America as the majority of us have envisioned it can survive another four years of Trump’s corruption, racism, and malicious incompetence. Despite some liberal wishful thinking, our democratic institutions and apparently overrated “checks and balances” are crumbling before our eyes.
The “JR Five” on the Supremes and the GOP Senate already have reached “Penceian levels” (“Pence” rhymes with “incompetence”) of mindless sycophantic subservience to the “Clown Prince” and his entourage. None of them would be able to extract their collective heads from the more than ample Presidential rear to see any daylight during a second term. Trump’s re-election would inevitably convert the “City on The Hill” to a “wealthy universally despised third world kleptocracy.” That’s the real “vision” of Trump and the GOP. (I think that Nicole’s “hypothetical” of a Trump victory and a Dem Senate is the “least likely scenario.”)
This November, vote like your life and the world’s future depend on it! Because they do!
Equal Justice & A Diverse America For All! Trump’s Dark, Evil, Dishonest Vision Of America, Never!
This is what American “Government” is these days. An absurdist parody where the architect of death, disorder, hate, inequality, international ridicule, unemployment, and White Supremacist violence blames a former Vice President for the absolute mess the incumbent has made of our nation! And, guess what — a crowd of sycophants actually has the audacity to cheer and (apparently) believe this evil, absurdist fantasy and to claim that their selfish, tone-deaf, dishonest minority views represent the “real America!”
In other words, Trump is essentially “running against his own record” while taking no responsibility for the mess he has made. In a pure Kafka/Twilight Zone moment, his GOP toadies let him get away with it. Worse yet, they contemptuously and arrogantly think the rest of us are stupid or clueless enough to believe this fantastic nonsense!
But, maybe there is some historical reason for this contempt. Trump’s mess is also to some extent the fault of the majority of us who “failed to make the sale” and get out the vote in 2016. We won a clear majority of the votes, but were’t smart, motivated, or diligent enough to turn our majority into political power. Some would call that the height of ineptitude and failure of resolve! That, in turn, has unleashed great, unnecessary, pain, suffering, death, and despair on America and the world.
Even allowing for the unreliability of polls, Trump apparently has never had the support of the majority of Americans, let alone voters. Yet, he “governs” as if the minority he represents are the only Americans! And, the rest of us have let him get away with it!
Do we really want to be remembered as the generation that ended “The American Experiment” and replaced it with “The American Kakistocracy?” We have a chance this Fall to get it right and to put America back on track to fairness, decency, humanity, equality, and a better life for all Americans — to take America to another level and to resume a positive position of world leadership. To address racial and economic inequality and to improve and value the lives of all Americans (including, of course, Trump supporters). The chance might not come again.
So, don’t blow it! Put Joe Biden in office, a decent, experienced, highly competent, thoughtful, caring, forward looking human being with a positive vision for all Americans and a commitment to a better world. Give Joe and his able and inspirational partner Kamala Harris a Democratic-led Senate that will help them govern for the common welfare, rather than for the benefit of one family and a few of their cronies at their top!
This November, vote like your life and the world’s future depend on it! Because they do!
Due Process Forever! Kafka, The Twilight Zone, and the Marx Brothers, Never!