"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas-Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief from his reinstated removal order. An Immigration Judge (“IJ”) concurred with that determination. Tomas-Ramos now petitions for review of the IJ’s order on two grounds. He first contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ’s decision was that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency’s decision, and remand for further proceedings.”
[Hats off to Michael D. Lieberman, Simon Y. Sandoval-Moshenberg, Stacy M. Kim, Paul F. Brinkman, and Michael A. Francus!]
—
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
**********************
DOJ’s error-studded performance (or lack thereof) in this case is disgraceful!
I guarantee that there are plenty of other unjust, legally defectivereasonable fear and credible fear decisions where these came from. Just most folks never get any meaningful judicial review.
Both the IJ and the AO got the basics of nexus and the applicable 4th Circuit case law totally wrong here. How are is this acceptable performance from what are supposed to be “expert” courts? Why hasn’t Garland brought in real experts, committed to due process and best practices, to take charge and straighten out this mess?
Disturbingly, the Biden Administration wants to turn this type of clearly inadequate procedure with poorly trained officers and judges and incorrect applications of the law loose on the merits determinations for all asylum seekers at the border!
Rather than being a check on bad judges, Garland’s OIL continues to “defend the indefensible” with arguments that don’t meet “the straight-face test.” Aren’t ethical codes equally applicable to Government lawyers?
Worse yet, Garland continues to unethically defend the scofflaw behavior of the Biden Administration by using a Stephen Miller era “COVID pretext” to deny most asylum seekers at the Southern Border any process, even the pathetic one used here!
The “wheels have come off” @ Garland’s DOJ and he’s driving on the axel hubs! When is someone going to pull him over and make him fix it?
Believe it or not, these are life or death cases! ☠️ Why is Garland allowed to treat the lives and rights of migrants and those associated with them so frivolously?
The IJ’s attempt to bar the R’s attorney from participating in the “credible fear” review is ridiculous! It shows the deep problems in Garland’s broken system which too often is deaf to due process, hostile to attorneys, and immune from common sense and best practices! Why would the “default” for regulatory silence be “no participation” rather than a “strong presumption that attorneys can fully participate?” What kind of “court” bars attorneys from speaking for their clients? Why would any judge not want to listen to attorneys, who are there to help them make correct decisions? The IJ’s conduct here was particularly egregious given that she had already made a clearly wrong decision before cutting off the attorney’s attempt to point out her errors! What a complete farce that Garland has failed to address!
This is another case where Circuit Judge Allison Jones Rushing, a Trump appointee with solid conservative credentials, once thought to be a possible contender for the “ACB seat,” joined her colleagues (Judge Harris and Chief Judge Gregory) to overturn a wrong, anti-immigrant decision by EOIR. Her approach in this and another recent case shows more sensitivity to due process, scholarship, and the rights of individual immigrants than many decisions emanating from Biden’s Immigration Courts under Garland.
I’m not suggesting that Judge R is necessarily going to become a leading defender of due process for immigrants. But, based on these somewhat random “snippets,” she seems more “reachable” and open to sound arguments on the issues than some other Trump appointees, points worth keeping in mind for NDPA advocates!
She’s also young. So, she will be reviewing immigration cases and making law for decades to come.
DISCLAIMER: While I have been inspired by, and drawn on, the work of my friends Nolan & Michele, this posting is my view and does not necessarily represent either of their views on MPP, its merits, and/or the litigation challenging it.
INA section 1229a(b)(4)(A) prohibits the government from paying for lawyers to represent immigrants in removal proceedings. The pertinent part of this section states that, “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings” (emphasis added).
But there is an alternative. EOIR has a program for recognizing organizations and accrediting their non-attorney representatives to represent aliens in removal proceeds for a nominal fee, and INA section 1229a(b)(4)(A) does not prohibit the government from providing these organizations with the funds they need to expand their immigration operations.
The government established the recognition and accreditation program to increase the availability of competent immigration legal representation for low-income and indigent persons, which promotes the effective and efficient administration of justice.
Two levels of accreditation are available. Full accreditation authorizes the accredited representative to represent immigrants in proceedings before DHS, in proceedings before an immigration judge, and in appeals to the Board of Immigration Appeals. Partial accreditation just authorizes them to assist immigrants in proceedings before DHS, such as in applying for an immigration benefit.
Aliens needing low-cost legal representation for removal proceedings or to apply for asylum can find recognized organizations and accredited representatives in their area on the roster of Recognized Organizations and Accredited Representatives. Currently, there are 761 recognized organizations and 1,970 accredited representatives, but only 300 of them have full accreditation.
An organization applying for recognition must establish that it is a Federal, tax-exempt, non-profit religious, charitable, social service, or similar organization; that it provides immigration legal services primarily to low-income and indigent clients; and that, if it charges fees, it has a written policy for accommodating clients who are unable to pay the fees.
And it must establish that it has access to adequate knowledge, information, and experience in all aspects of immigration law and procedure.
An organization applying for the accreditation of a representative must establish that the representative has the character and fitness needed for representing immigration clients; that he has not been subject to disciplinary proceedings or been convicted of a serious crime; and that he has the necessary knowledge in immigration law and procedures.
Professor Michele Pistone Villanova Law
Excellent training programs are available to provide representatives with the knowledge they need to represent immigrants in removal proceedings before an immigration judge, such as the Villanova Interdisciplinary Immigration Studies Training for Advocates (VIISTA) — a university-based online certificate program that was established by Michele Pistone, a law professor at Villanova in August 2020, to provides the training immigrant advocates need to become accredited representatives.
VIISTA covers all of the topics needed to become an effective immigrant advocate — such as interviewing, how to work with an interpreter, how to work with migrant children, trial advocacy and, of course, immigration law.
Biden’s promise to maximize legal representation
Biden included maximizing legal representation in his “Blueprint for a Fair, Orderly, and Human Immigration System.” His plan to achieve that objective includes providing $23 million to support legal orientation programs — but orientation programs do not provide legal representation. In fact, the statement of work for the LAB contract solicitation requires orientation presenters to explain that they do not provide legal advice or representation.
Accredited representatives with full accreditation do provide legal advice and legal representation — but there aren’t nearly enough of them now to meet the need for such assistance.
Biden could use the funds he has earmarked for the legal orientation program to provide recognized organizations with the money they need to increase the number of accredited representatives — but a better solution would be for congress to provide the necessary funding.
For many asylum-seeking immigrants, an accredited representative with immigration law training may be their only hope for representation when they appear at their asylum hearings.
**********************
Thanks for this timely and informative piece, Nolan! Amazingly, this “accessible” analysis of an under-publicized opportunity is Nolan’s 300th published op-ed on The Hill! Congratulations! 🎊🍾
Go on over to The Hill to read the full article! The excerpt published above also contains helpful links to the VIISTA Program @ Villanova.
The extraordinary, innovative VIISTA Program began with Michele’s dinner table conversation with Judges Larry “The Burmanator” Burman, Mimi Tsankov (now NAIJ President), and me following an FBA Conference in DC several years ago. I doubt that any other lawyer in America could have turned it into reality. Michele got all the grants for seed money herself — winning a prestigious Kaplan Family Foundation Grant for Innovation in the process!
Because VIISTA is modularized, available online, constantly evaluated (including, of course, by students), and updated, it is “built for rapid expansion” throughout America, as suggested by Nolan. Even now, Michele is actively looking for “partners.”
My Round Table 🛡⚔️ colleague Judge Jeffrey Chase and I were privileged to have had modest roles in VIISTA’s curriculum development and review. Additionally, our Round Table colleague Judge Ilyce Shugall is one of the exceptional VIISTA faculty.
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) A “Fighting Knightess of the Round Table,” she’s also one of VIISTA’s talented expert faculty members who knows exactly what asylum seekers need to prove to win in what currently is “America’s most dysfunctional court system!” She has “lived life on both sides of the bench!”
Recently (pre-omicron) Jeffrey and I were fortunate enough to be invited to a “VIISTA Anniversary Celebration” @ Villanova. We had a chance to meet not only folks from the Kaplan Foundation and Villanova (which has been totally supportive), but also to meet and hear from some faculty and members of the “Inaugural Class” about their achievements and their plans for the future.
This is truly “making the law better” and “delivering justice” at a grass roots level! And, as Nolan points out, expanded programs like this might be asylum seekers’ best chance of getting great representation that could be “outcome determinative.” Michele’s goal is 10,000 new representatives in 10 years! Who could doubt her ability to pull it off!
By now, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” is here to stay, at least for the foreseeable future. No matter what the lack of merits to the Fifth Circuit’s decision might be (I’m sure that its tone-deaf, disconnected from reality and humanity approach will be the subject of numerous critical commentaries and law review articles), no relief can be expected from either the right-wing Supremes or the feckless Dems in Congress.
Given that the MPP program is going to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket 🚀 science:
A Better Due-Process- Focused Approach To “Remain in Mexico:”
Better BIA. Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, fair notice, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
Better Judges. Get a corps of Immigration Judges with established records and reputations for scholarly expertise in asylum, demonstrated commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
Better Representation. Work with pro bono, advocacy groups, VIISTA, and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Another one of Nolan’s good ideas for VIISTA-type programs would be for Congress to provide scholarships for students (beyond those already available from Villanova). I have also gotten “anecdotal reports” that EOIR has built up an unconscionable backlog in processing of applications for Accreditation & Recognition. If confirmed, this must be immediately addressed.
Better Conditions. Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.
Indeed, the Biden Administration could and should already have put this very straightforward, achievable program in place during its first year in office, instead of “treading water” (or worse, in many cases)!
(CNN)The Biden administration, unable to return an increasing number of Venezuelans arrested at the US-Mexico border to their home country, is now sending those migrants to Colombia if they previously resided there, according to two Homeland Security officials.
White House officials have grown increasingly concerned about the large numbers of single adults continuing to cross the US southern border, particularly from countries that Mexico won’t accept under a controversial Trump-era policy, two sources familiar with discussions said.
The flights of Venezuelans to Colombia, which have not been previously reported, marks another effort by the administration to try to stem the flow of migrants, pushing those who arrive further away from the US-Mexico border including those seeking asylum.
In December, US Customs and Border Protection encountered more than 13,000 single adults from Venezuela on the US southern border, compared with 96 in December 2020, according to agency data.
A humanitarian crisis and political instability have taken hold of Venezuela in recent years. Around 6 million people have fled the country, according to the United Nations, usually fleeing to other parts of Latin America which have also struggled during the pandemic.
There’s been bipartisan acknowledgment of the deteriorating situation in Venezuela. Last year, Sens. Marco Rubio, a Republican, and Bob Menendez, a Democrat, introduced a Senate resolution expressing alarm over the situation in the country.
Colombia also granted temporary legal status to Venezuelans who had fled there, allowing them to legally work in the country. But for those who opted to journey to the US-Mexico border to seek protections in the US, expulsion to Colombia now puts them thousands of miles away from the possibility of claiming asylum in the US.
The handling of the US-Mexico border has dogged the Biden administration since the early days of Joe Biden’s presidency as a growing number of migrants journey to the United States, fleeing deteriorating conditions in the western hemisphere. Republicans have recently seized on the releases of migrants — some of whom can’t be expelled because of their nationality — citing it as another example of what they describe as the administration’s poor management of the border.
Under a public health authority, known as Title 42, authorities can swiftly remove migrants encountered at the US southern border, effectively barring those seeking asylum from doing so and marking an unprecedented departure from previous protocol. The authority was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated.
The White House has repeatedly referred to the Centers for Disease Control and Prevention on the future of the policy, saying the agency deems it necessary given the Delta and Omicron variants.
Last Thursday, the Department of Homeland Security returned two Venezuelan nationals to Colombia, where they had previously resided, the department told CNN, adding that flights to Colombia are expected to take place “on a regular basis.”
“As part of the United States COVID-19 mitigation efforts, DHS continues to enforce CDC’s Title 42 public health authority with all individuals encountered at the Southwest border. However, DHS’s ability to expel individuals may be limited for several reasons, including Mexico’s ability and capacity to receive individuals of certain nationalities,” DHS said in a statement, adding that the department has removed migrants to third countries in the region where they had lived or had status.
DHS has also acknowledged the precarious situation in Venezuela by granting a form of humanitarian relief for Venezuelans already in the United States.
Still, the Biden administration has continued to rely on the public health authority and recently defended it in court — a move that received criticism from immigrant advocates and Democratic lawmakers. The latest decision to expel migrants from Venezuela — a country in crisis — to Colombia reveals a further dependence on the public health authority amid a growing number of Venezuelans arriving at the US-Mexico border.
In December, US Customs and Border Protection encountered 24,819 Venezuelans at the US southern border including single adults, families and minors, up from the previous month and continuing an increasing trend. As a point of comparison, in December 2020, CBP encountered only around 200 Venezuelan migrants, according to agency data.
While tens of thousands of migrants have been turned away at the US-Mexico border, some, like South Americans, aren’t accepted by Mexico and therefore those nationals largely can’t be expelled. Under the public health authority, DHS has removed migrants to Guatemala, Honduras, El Salvador and Brazil.
Some migrants from Venezuela crossed the border in Yuma, Arizona — often flying to an airport in Mexico and then crossing at a gap along the Colorado River, cutting the journey down to just days. It’s the most viable option for many Venezuelans and Brazilians, for example, who can’t obtain a visa that allows them to work in the US — or can’t afford the years-long wait for the legal immigration process. Mexico recently put new visa restrictions in place for Venezuelans traveling to Mexico.
The US has previously taken measures to try to lower the number of migrants at the US-Mexico border. Last year, the administration started flying migrants apprehended at the southern border and subject to the Trump-era border policy linked to the pandemic to the interior of Mexico.
Forced migration is real, no matter what fictions and myths Administrations of both parties use to deny it.
Pretending otherwise, and that lawless deportations and “deterrence” will materially change the forces that drive it, is both immoral and ultimately futile.
New arrivals in South Portland schools bring challenges and joy
With asylum seekers arriving in Portland housed in South Portland hotels, South Portland schools gear up for more English language learners and celebrate the excitement they bring.
Divine Nsimba Lukombo 12, left, an 8th grader from the Democratic Republic of Congo, and 7th grader Odett Mavezo Junizi 12, also from the Congo, work together in a science class at South Portland’s Memorial Middle School.
When classes started this year at Memorial Middle School in South Portland, there was just one humanities class for students beginning to learn English. Now there are three.
The school has rearranged the schedules of English language teachers, added an additional part-time English language teacher and upped the hours of a second teacher.
It has limited new enrollments because it has no more space and is relying on the middle school on the other side of the city to absorb any additional students who come into the district.
“We’re just supporting way more kids in those English language learning classes,” said Principal Rebecca Stern.
The changes are necessary because the school district is seeing an influx of English language learner students driven by the arrival of asylum seekers from African countries. It’s hard to know exactly how many of the students are asylum seekers, but officials in South Portland say the increases they’re seeing stem from the placement of many asylum-seeking families in emergency shelter in local hotels.
Since the start of the school year, the South Portland School Department has served 305 homeless students. That’s up from 180 last school year and just 34 in 2019-20. The school system has 522 English language learner students, compared to 328 last year. And overall enrollment now is at 3,021 students, up from 2,887 in October.
English Language Learner teacher Kara Kralik works with students at Memorial Middle School in South Portland last week. Shawn Patrick Ouellette/Staff Photographer
South Portland is one of five communities where the city of Portland is placing asylum seekers in hotels because of a shortage of shelter space and housing.
Portland officials reported earlier this month that new arrivals had driven the highest ever nightly averages of people in need of shelter. In the first three weeks of January, 39 families needing shelter arrived in Portland – about one-third the number the city saw in all of 2020.
School officials in Portland and some surrounding communities like Old Orchard Beach and Brunswick, which are currently housing asylum seekers or have in the past, said they aren’t seeing increases in new students. Freeport, which is housing some new arrivals from Portland, has seen a small one.
“I would argue that right now we are the most impacted school district in the state when it comes to new families, many of whom do not speak English and are housing vulnerable,” said South Portland Superintendent Tim Matheney.
Schools across the district – from elementary to high school – have mobilized to welcome the newcomers. Most come from Angola and the Democratic Republic of Congo and have spent months or even years traveling to the United States to escape violence or instability in their home countries. And many have missed long periods of school as a result.
Teaching the students English, enrolling them in classes and making sure basic needs such as housing, food and warm clothing are being met present challenges. Schools need to hire more staff – English language teachers, social workers.
But the new students are making their schools far more diverse and filling them with excitement during a challenging year.
“In America right now, as we go through the pandemic and how education looks post-pandemic, people are really sad,” said South Portland High School Principal Michele LaForge. “The anxiety of our students and our staff is really high. This has been a really hard time and it continues to be hard.
“Our new Mainers, in a lot of ways, the hardest thing they’ve ever experienced is behind them. So there’s this energy around these new students. They’re just so delighted to be here. They’re never absent. They’re excited every second of every day.”
FILLING IN THE LEARNING GAPS
At Memorial Middle School on a recent morning, English language learner teacher Elizabeth Dawson worked with a dozen students in a math class for newcomers. Just the week before, Dawson had been assigned a new sixth-grade student who hadn’t been in school for five years. She said it’s not unusual for students to have large gaps in their education, and it’s her job to catch them up.
“In all of our classes we have this philosophy of addressing language skills and gaps, but we also know these students are 14,” Dawson said. “They’re cognitively and developmentally middle school students, so we also need to make sure our content is challenging them on a seventh-grade level.”
Tanya Nsumu, 12, left, originally from the Democratic Republic of Congo works with Maria Bikuma, 14, from Angola during math class last week at Memorial Middle School in South Portland where there is an influx of asylum-seeking students. Shawn Patrick Ouellette/Staff Photographer
Maria Bikuma and Tanya Nsumu, two students in Dawson’s class, sat in the back munching on breakfast as their teacher led them in a word problem that everyone read aloud together. Bikuma, who is from Angola and arrived in Maine over the summer, said she is enjoying making new friends and being in school.
“I like America because it’s a good country,” said the eighth-grader. “I can study here and the teachers are good.”
Because she speaks English well, Bikuma often acts as a translator between teachers and her fellow students who are new to the country and whose first language is most often Portuguese or French. She said the teachers are patient and more involved in helping students than in Angola, where students were more self-directed.
“People understand quickly because the teachers explain very good,” Bikuma said.
Nsumu also arrived over the summer, from the Democratic Republic of Congo. She left her home country when she was just 6 years old and spent time in South America, Mexico and Texas. When she arrived in Maine, she spoke no English, though that has quickly changed.
“Here is different because I have a new teacher that teaches good,” said the seventh-grader. “I have an iPad. I have a new life.”
. . . .
*******************
Read the rest of Rachel’s article at the link.
When I was a judge, I was often inspired by the amazing young people who came before me. Some of them had literally walked to the US, on perilous journeys, encountering unimaginable, sometimes unspeakable, hardships and trauma.
Their courage, life skills, and problem solving abilities were truly remarkable. Once here, many were helping their families while going to school and assisting their lawyers with their cases. Some were also involved in sports, music, or other extracurricular activities. (When I heard applause from my colleague Judge John Milo Bryant’s courtroom, I knew that was for another student-athlete or academic achievement.)
I often could see both English language proficiency and school grades improve from one court appearance to another. I invariably asked students about their progress in school. Many brought report cards to the next hearing to show me how they were doing.
I always told kids that no matter how their cases eventually came out, their education was theirs for life. So, I challenged them to take full advantage. And, most appeared to do so!
I saw some of them literally grow up and come of age in court and go on to contribute to our country and our communities while continuing to take outsized responsibilities for families. Many came from homes where the parents were both working two jobs to help forge better lives for their children.
Many of these cases eventually had happy endings. When they did, I always encouraged the younger generation to pay it back by helping their parents and insuring that they had the time, encouragement, and support to meet the requirements for naturalization so that they could become full participants in their communities and our nation.
Dr. Demetrios G. Papademetriou, president emeritus and co-founder of Migration Policy Institute, and founding president of MPI Europe, died Wednesday, January 26, at the age of 75. He was one of the world’s pre-eminent scholars and lecturers on international migration, with a rich body of scholarship shared in more than 275 books, research reports, articles and other publications. He also advised numerous governments, international organizations, civil society groups and grant-making organizations around the world on immigration and immigrant integration issues.
Papademetriou began his career as Executive Editor of the International Migration Review. After stints at Population Associates International and the U.S. Labor Department, he served as Chair of the Migration Group of the Organization for Economic Cooperation and Development. He then joined the Carnegie Endowment for International Peace’s International Migration Policy Program, which in 2001 was spun off to create the freestanding Migration Policy Institute.
He co-founded Metropolis: An International Forum for Research and Policy on Migration and Cities, which he led as International Chair for the initiative’s first five years and then served as International Chair Emeritus. He was Chair of the World Economic Forum’s Global Agenda Council on Migration (2009-11) and founding Chair of the Advisory Board of the Open Society Foundations’ International Migration Initiative (2010-15).
Papademetriou, who traveled the world lecturing and speaking at public conferences and private roundtables, also taught at the University of Maryland, Duke University, American University and the New School for Social Research.
MHC
*************************
Demetrios was one of those amazing, charismatic, “larger than life” intellects who could “electrify” a room just by walking through the door. His ability to “connect” with audiences far beyond the world of scholarly research — and to appreciate the “human lives and heroic stories beyond the number-crunching” was unparalleled.
He led in “putting immigration scholarship on the map” — as an academic discipline, a ground-breaker in clinical legal education, and a basis for progressive migration and human rights policies in government and NGOs. Through his work at MPI, Carnegie, and other institutions, he used scholarship to spur and encourage practical “grass roots” reforms in our immigration system and, indeed, in the international migration system. Many leaders of today’s “New Due Process Army” can trace their “practical scholarly roots” to Demetrios’s inspiration and example!
Perhaps ironically, another recent posting on ImmigrationProf Blog points out how the Biden Administration has disturbingly and inexcusably failed to “cash in” on the full potential of the extraordinary growth in “applied migration scholarship” fueled by Demetrios, his long time friend and colleague former Immigration Commissioner Doris Meissner, MPI Executive Director Donald Kerwin, Jr., and other giants in the field.
Rather, the Biden Administration has veered far off-track on immigration, human rights, and social justice issues by placing politicos without immigration expertise and lacking both moral courage and belief in fundamental human values in charge of its flailing and failing immigration mess. In particular, these tone-deaf politicos have failed to “connect the dots” between immigrant justice and racial justice in America.
Not surprisingly, that has resulted in across the board failures, unfulfilled promises, and angry, disgruntled potential allies on meaningful reforms in both areas. This, in turn, has demoralized and turned off the younger, dynamic, diverse, progressive, expert immigration, human rights, and social justice leaders who are key to the future of the Democratic Party and the preservation of American democracy.
Talk about a lose-lose-lose approach! And, I guarantee that it hasn’t garnered one vote of support from “hard-liners” and “naysayers” who continue to mindlessly and dishonestly babble about “open borders!”
I’m not exaggerating here. Yesterday, I was on (Zoom) panels in Houston and DC. Both audiences and fellow panelists were stunned and outraged by the betrayal of due process, good government, expertise, common sense, and human values demonstrated by Biden’s “Miller Lite” approach to asylum at the Southern Border, the intentional mistreatment of migrants of color, and Garland’s beyond dysfunctional and chronically unjust Immigration Courts!
Particular disgust was reserved for the Administration’s intentional, continued, cowardly abuse of Haitian migrants. That, actually says more about their attitude toward true racial justice than the promise to appoint a Black Woman to the Supremes.
Welcome and long overdue as the latter is, it isn’t going to change the result on any major issue before this version of the Supremes. By contrast, the Biden Administration’s anti-Haitian policies are actually harming, dehumanizing, endangering, and even potentially killing Black migrants every day! No wonder they want to “sweep truth under the rug.”
It’s exactly the type of “applied stupidity,” willful blindness, intentional cruelty, and disdain for common sense, humanity, facts, and relevant experience that Demetrios would have resisted!
At ICE, there’s no need to bother presenting evidence, arguments, or making a record below because we know we can “rack up” victories before our stooges at Garland’s BIA!
“In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Osmani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals (“BIA”) reversed the IJ’s ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discretion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. … Accordingly, we GRANT the petition for review; VACATE the Board’s decision in this case; and REMAND to the BIA for further proceedings consistent with this opinion.”
[Hats way off to pro bono publico counsel Illyana A. Green, Chuck Roth and Matthew E. Price! Query: ICE removed Osmani in 2021…will they bring him back? Listen to the oral argument here.]
*******************
The outrageous errors, pro-DHS bias, gross incompetence, and lack of judicial qualifications reflected by this BIA decision is absolutely stunning, as is the Biden Administration’s:
Deportation of the respondent while this court challenge to this error-fest was pending (the respondent was removed based on this illegal order in April 2021, well after the Biden Administration took office and a month after Garland was sworn in as Attorney General);
The DOJ’s prima facie unethical defense of the BIA’s denial of due process, failure to follow precedent, clear abuse of discretion, and legally indefensible actions here;
Continuing abuse of scarce pro bono resources and Article III judicial time by not bringing in fair, expert, new, due–process-dedicated BIA judges who would get these right in the first place, set proper precedents, and follow them (rather than avoiding them when they spell victory for the individual);
Also, who at DHS authorized an improper appeal on this record? (Obviously, DHS recognized that given the BIA’s pro-DHS bias, they could “mail it in” before the IJ, take a frivolous appeal, andSTILL HAVE THE BIA HAND THEM A TOTALLY UNDESERVED VICTORY!)
Folks, this is a Democratic Administration enabling this pattern of biased, unprofessional, and illegal conduct against immigrants which should bring a smile to Stephen Miller’s face! It’s also unfair and demoralizing to Immigration Judges who take the time to get it right and grant relief only to be arbitrarily and illegally reversed by Garland’s unqualified BIA on appeal!
Garland should have replaced leadership at EOIR and OIL, and also replaced the BIA, on “day one.” Instead, more than a year into a supposedly due-process-oriented Administration, the garbage continues to flow into the Article IIIs from Garland’s EOIR unabated, while the indefensible continues to be defended by OIL, like it’s “business as usual.” This happens because Garland’s message is that “Dred Scottification” of “the other” will be tolerated, defended, and protected at his DOJ.
Why is Garland being allowed to get away with running this system into the ground, ignoring due process, “blowing off” judicial and legal ethics, treating migrants unfairly, and building the unnecessary backlog at record levels?
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
Biden’s “Shadow Attorney General” speaks through the likeness of Merrick Garland! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comCNN Digital Expansion 2019, Priscilla Alvarez Politics Reporter, CNN
“Today we heard the same unconvincing arguments from the Biden administration that we’ve been hearing for the last year about this xenophobic and baseless policy, arguments that have already been rejected in federal court. Title 42 unjustly and unnecessarily inflicts harm on families seeking asylum at our border, and we will continue to work tirelessly to ensure that this policy ends once and for all,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.
In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.
*******************
Read Priscilla’s full story on the bottomless depths to which Garland has taken American “justice” and the Department of “Justice” at the link.
I can always count on Garland to illustrate and punctuate my points about his unfitness for the job of achieving racial equality, re-establishing the rule of law, and promoting human rights in America, not to mention his total unsuitability and inability to run a fair, impartial, due-process-oriented court system! He probably would have been right at home with the “GOP Six” on the Supremes.
A year ago, who would have thought that Biden and Garland share this guy’s vision of “justice” for migrants at the border and at EOIR? Image: Hernan Fednan, Creative Commons License
Dear Paul:
In this week’s First Page, we focus on the one-year anniversary of the Biden presidency — with a particular focus on policies that impact migrants and asylum seekers.
Our recently published report makes clear that the administration’s continuing use of Trump-era restrictions has led to escalating human rights violations and needless disorder.
We believe that the United States must welcome people seeking refuge with dignity, not deliver them to danger.
REPORTING THE RECORD
On Thursday, Human Rights First released a new report finding that after a year in office, the Biden administration’s continued implementation of Trump-era restrictions is sending to danger thousands of families and individuals who seek asylum protection in the United States.
The data assembled in our report, “A Shameful Record: Biden Administration’s Use of Trump Policies Endangers People Seeking Asylum,” is a damning indictment of the U.S. government’s border policies.
Courtesy Adrees Latif/Reuters
Between January 2019 and January 2022, our research identified more than 10,000 reported kidnappings, rapes, acts of torture, and other grievous acts of violence against migrants and asylum seekers blocked in, returned to, or expelled to Mexico under the U.S. government’s “Remain in Mexico” and “Title 42” policies.
At least 8,705, or 85%, of these attacks occurred during the first year of the Biden presidency.
“President Biden’s first year in office has set a shameful new record on human rights as his administration continues to deliver asylum seekers to danger in Mexico,” saidKennji Kizuka, associate director for refugee protection research at Human Rights First and co-author of the report. “The Biden administration is well aware of the grave harm asylum seekers suffer when sent to Mexico and yet it has continued to use a policy condemned by public health experts, international authorities, civil rights leaders, and even departing members of President Biden’s administration.”
Courtesy ReuterS
Our report makes clear that kidnappings and rapes of returned migrants – including of children – are common.
Cartels and other organized criminal groups in Mexico have turned torturing asylum seekers and extorting their U.S. family members into a new and lucrative illicit enterprise. At least three asylum seekers sent to Mexico by DHS under these policies were murdered.
Equally frightening, our research shows that Mexican police, immigration officers, and other authorities are often complicit in – if not directly responsible for – these attacks.
Courtesy Getty
As the Biden administration restarts the inherently flawed “Remain in Mexico” program in the wake of court rulings, they have already sent asylum seekers from Cuba, Nicaragua, Venezuela, and other countries to “wait” for their day in immigration court in danger in Mexico.
In addition to inflicting grave and systematic suffering, these policies continue to perpetuate disorder, encourage repeat entries, inflate apprehension statistics, cause family separations, and fuel cartels by putting a bullseye on the backs of people seeking U.S. asylum who are blocked in Mexico.
Despite the Biden administration’s earlier efforts to terminate “Remain in Mexico,” when it was ordered by a federal court to re-implement the program, the administration has now chosen to expand its scope.
Today the administration is defending the expulsion policy in federal court, with a hearing in a lawsuit challenging expulsions of families at the D.C. Circuit Court of Appeals.
HIRING FOR HUMAN RIGHTS
Reports like A Shameful Record are just one element of our critical efforts to defend the dignity of all people.
Human Rights First seeks passionate team members who are interested in legal, communications, development, finance, and innovation work that can change lives, impact policy, and move public opinion.
Please check out our careers page and apply to join us today.
* * * * *
Watch for more news as our work for human rights continues. And please stay in touch on social media:
************************
You can read the full version of “A Shameful Record” at the above link.
Not to mention that the extreme lack of expertise, humanity, and quality control in Garland’s wholly-owned Immigration Courts is corroding American justice from the “retail level” up. So unnecessary! So divisive! Such a missed opportunity for Dems to actually govern with values and in the public interest!
Wow! Think of the incredible waste: So much talent, energy, creativity, and manpower that could be working with the Administration to solve problems and make things better for everyone. Instead they are engaged in an all-out war to stop the Biden Administration’s cruel, spineless, and highly ineffective immigration and human rights blunders and, once again, be the last line of defense for American democracy against the Dems’ self-destructive policies and actions.
Elizabeth Keyes Associate Professor Director, Immigrant Rights Clinic U of Baltimore Law Photo: U of Baltimore Law Website
Friends,
I have the best job in the legal profession. Maybe this could be your best job in the legal profession.
I’m excited to share a hiring announcement for the director of the Immigrant Rights Clinic at University of Baltimore, which has been my own beloved position for the last decade. (I’m staying at UBalt, but shifting to purely doctrinal teaching for a host of reasons that have nothing to do with how much I love our clinical program and community at UBalt). We are looking for a dynamic junior or pre-tenure lateral person for this position.
As you probably know, UBalt is an exceptionally good place to be a clinician. We are on a unitary tenure-track, with case coverage over the breaks. Our clinicians lead the law school in all kinds of ways, from committee-leadership to scholarship and beyond. We also have a beautifully collegial clinical faculty, with weekly brown-bag lunches focused on everything from pedagogy to workshopping our own scholarship. In the next four weeks alone, we have one lunch devoted to the pedagogy of Bell Hooks, another on clinics and emergency response, and another workshopping two articles by our teaching fellows. We have a lot of independence within our clinics, but we also share the same deep roots in non-directive, client-centered pedagogy.
Please share the announcement widely with your networks.
Warmly,
Liz
Elizabeth Keyes
Associate Professor, Director of the Immigrant Rights Clinic
University of Baltimore School of Law
***************
Great opportunity for an up and coming NDPA “practical scholar!”
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
***********************
Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
Yilun Cheng Immigration Reporter, Columbus Dispatch PHOTO: TwitterAttorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.
The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.
Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.
But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.
Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.
But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.
Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.
. . . .
Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.
“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”
. . . .
Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.
In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.
In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.
“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”
Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.
“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”
. . . .
Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.
“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”
There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.
“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”
. . . .
The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.
The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.
The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.
“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”
. . . .
Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.
ycheng@dispatch.com
@ChengYilun
******************
Read Yulin’s full article at the link.
First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.
Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!
So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?
The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.
Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!
Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.
Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.
Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.”But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!
Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.
Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!
The TRAC “national average” for asylum denials by IJs during this period was 67.6%.
So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”
As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.
All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.
Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.
Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!
Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.
The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.
While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.
He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)
Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!
Indeed, a full year the SF Chron’sTal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”
From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?
Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”
As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!
Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡
There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!
The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!
These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.
. . . .
**********************
Read Austin’s findings at the link.
The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team.
Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better.
The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it
WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.
The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.
…
Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.
Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.
Welcome and long, long, long overdue news! But, is it too little, too late?
Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy.
Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from expertswho understand the full legal and human effects of Garland’s complacent and ineffectual leadership.
The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.
In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!
The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance.
Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.
Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it.
The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.
Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.
In other words, Garland has been a disaster for those committed to due process, racial justice,equal treatment under law,and a diverse, welcoming, stable American democracy.
Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!
“Record, what record? Here at the BIA, we don’t need no stinkin’ record to deny asylum! The assembly line would break down if we took time to look at all the evidence and research the law! It’s about ‘numbers,’ not ‘justice!’” https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Tarlishi Emmanuel-Tata, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. We GRANT the petition for review and REMAND for further consideration. … Emmanuel-Tata challenges both the BIA’s factual determinations and whether it gave his claims full and fair consideration. We begin by examining Emmanuel-Tata’s argument that the BIA failed to consider all the evidence. This argument relies on a BIA statement that the record “does not contain any country conditions evidence indicating that Anglophones are regularly subject to persecution,” and that “[t]he record does not contain any country conditions evidence indicating the type of punishment the respondent may face as a result of his criminal charges.” There is such evidence, though. … The significance of the overlooked evidence is clear. … Because the BIA erroneously found there was no record evidence about relevant country conditions, Emmanuel-Tata did not receive “meaningful consideration of the relevant substantial evidence supporting” his claims. See Abdel-Masieh, 73 F.3d at 585. We therefore reverse the BIA’s decision. We need not further consider the BIA’s factual determinations. The petition for review is GRANTED and we REMAND to the BIA for further consideration.”
[Hats off to Brian Plotts! Brian, make a motion to publish!]
*********************
As any “immigration pro” knows, the DOJ has to work hard to lose immigration cases in the “ultra-conservative” 5th Circuit. But, even judges not very sympathetic to migrants don’t like being “played for fools” by a DOJ where “quality, integrity, and due process” definitely are “NOT job one.”
Highlighting the constant stream of bogus findings, “canned” decisions, ignored records, and chronic contemptuous sloppiness is a great way to for the NDPA to make inroads with even the most unsympathetic Circuit panels. While some Article III judges are willing to overlook the BIA’s endemic shortcomings, hiding behind the “bogus deference” doctrine, they might be less willing to “do the BIA’s dirty work for them.”
