"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.
Several Black immigration organizations have filed a formal complaint with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, demanding that the Biden administration halt its continued deportations of Haitian asylum seekers.
The complaint filed by four groups ― the Haitian Bridge Alliance, UndocuBlack Network, African Communities Together and Black Alliance for Just Immigration ― requests that any potential witnesses of Border Patrol abuses be allowed to remain in the U.S. while their asylum claims are investigated. The complaint was first reported by theGrio, and signed by dozens of advocacy groups.
More than 13,000 Haitians were camped along the river at the Texas border town of Del Rio last weekend when Border Patrol officers on horseback charged at some of those gathered there, verbally assaulting and appearing to whip them. Photos of the violence shocked the public.
. . . .
The complaint by the organizations notes that the migrants have been denied access to attorneys, interpreters, adequate medical care, fear-based screening and proper nourishment and sanitation, all under intense heat. It also highlights physical intimidation and violence against migrants by Border Patrol officers, and misleading statements made by Homeland Security officers to Haitians about where they were being flown to.
“We’re not living up to our obligation as a nation to be a place of refuge for people seeking a better life,” former Obama administration Cabinet member Julián Castro told HuffPost earlier this week. “And in the least, asylum seekers, whether they’re from Haiti, or from one of these Northern Triangle countries should be allowed to make their asylum claim, instead of being severely expelled from the country. This was not the change we were hoping for on immigration policy.”
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Mayorkas’s defense of his grotesque, “Trumpist” misuse of Title 42, which actually has been rejected by a Federal Judge, on “Meet the Press” was as disgraceful as it was dishonest!
Either Mayorkas doesn’t understand reality, or he’s too intellectually dishonest to speak truth! Regardless, it’s not good!
Re-establishing the rule of law and treating asylum seekers fairly and generously, as the law requires, is not an option! It’s a legal and moral obligation! There is absolutely no reason to “apologize” for treating asylum seekers fairly and humanely, no matter what racist GOP nativists like Texas “Governor Death” Greg Abbott and Senator “Cancun Ted the Insurrectionist” Cruz say!
“Adel Ghanem, a former lawful permanent resident of the United States, seeks to avoid removal to Yemen, from which he fled to avoid persecution on account of political opinion. He pursues three forms of relief that were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA): asylum under the Immigration and Nationality Act, 8 U.S.C. § 1158(a), withholding of removal under the Act, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. § 1208.16(c). Ghanem was kidnapped and tortured before being convicted and sentenced to ten years’ imprisonment for political opposition to the Houthi regime. We will therefore grant the petition for review and remand to the BIA. … We begin by reviewing the agency’s determination that Ghanem was ineligible for asylum under the INA because he was not persecuted “on account of” political opinion. We perceive two errors in its analysis: First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution. … Illustrating “gross, flagrant [and] mass violations of human rights” that he would be unable to escape, the record evidence not only fails to support but directly contradicts the BIA’s conclusions that Ghanem is not likely to be tortured with the government’s acquiescence, if returned to Yemen. 8 C.F.R. § 1208.16(c)(3)(iii).8 The denial of relief under CAT therefore cannot withstand even our most deferential review. … For the foregoing reasons, we will grant Ghanem’s petition, vacate the BIA’s order, and remand to the agency for further proceedings consistent with this opinion.”
How is the BIA’s grotesque misapplication of asylum and CAT law and intentional distortion of the record evidence acceptable adjudication from a Federal Court, even a “quasi-judicial administrative tribunal?” Lives are at stake are here! But, Garland remains indifferent to the deadly ☠️ daily injustices and stunning judicial incompetence and bias he promotes, coddles, defends, and enables at his dysfunctional EOIR!
And what is his OIL doing defending this garbage before the Circuits? Garland’s DOJ is an ethical cesspool and a slimy mess of legal incompetence! Where’s the long overdue “thorough housecleaning” of this gross abuse of taxpayer dollars and walking talking insult to the Canons of Legal and Judicial Ethics!
These aren’t just “honest legal mistakes!” No way! They are the product of an anti-asylum, anti-immigrant, anti-due process, anti-people of color “culture” which was actually encouraged and promoted at EOIR during the Trump regime and still endures!
It starts, but doesn’t end, with aBIA “packed” with a number of Trump/Miller appointees who were nationally renowned for their unsuitability to fairly adjudicate ANY asylum case, let alone to be “elevated” to the highest immigration tribunal. But, it’s not like any BIA Appellate Judge has the guts and integrity to stand up and speak out for immigrants’ rights, human rights, and constitutional due process!
It’s outrageous that the BIA as currently comprised is charged with setting precedents, maintaining consistency, and guaranteeing fairness for asylum applicants, particularly women and people of color. Of course this type of misconduct and incompetence will continue to generate huge, uncontrolled backlogs! THIS national, even international, disgusting disgrace will be Garland’s lasting legacy!
The proposed “asylum reform regulations” and all other immigration and racial justice reforms put forth by Biden will fail without a better, progressive, expert BIA totally committed to due process, fundamental fairness, and racial justice! Why hasn’t Congress demanded an accounting from Garland for his jaw-dropping mismanagement of the Immigration Courts and his failure to make obvious administrative reforms?
Demand better from Garland and the Biden Administration! This disgraceful, dysfunctional, deadly mess at EOIR is NOT OK!🤮👎🏽
Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”
Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of
4 PLANCARTE SAUCEDA V. GARLAND
torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.
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Welcome to the “any reason to deny culture” at Garland’s EOIR!
In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!
Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge?Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning!
This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!
Immigration Court— Failure
BIA — Failure
OIL — Failure
Garland — Failure
And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees!
Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!
Vallerye Allyn Anderson ESQ Sacramento, CA PHOTO: LexisNexis
🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮
This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!
Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders
By Robert Barnes
June 29 at 5:22 PM ET
. . . .
In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.
At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.
One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.
Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.
The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.
The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.
Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.
He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.
“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”
Nice summary, Robert! You can read the rest of Barnes’s report at the link. Indeed, Justice Breyer’s cogent question quoted in the articleremains unanswered by the wooden legal gobbledygook in the majority decision, devoid of much understanding of how the dysfunctional Immigration Courts and the DHS “New American Gulag” actually operate and dismissive of what it actually means to be a refugee seeking to exercise legal rights in today’s world.
At issue: The right of non-criminal foreign nationals who have established a “reasonable fear” of persecution or torture if deported to apply for bond pending Immigration Court hearings on the merits of their cases. Getting a bond hearing before an Immigration Judge does not in any way guarantee release; just that the decision to detain or release on bond will be based on the individual facts and circumstances. Individuals released from detention have a much better chance of obtaining counsel and gathering the documentation necessary to win their cases. They are also much less likely to be “coerced” by DHS detention into surrendering viable claims and appeal rights.
Majority’s response: These “aliens” have neither rights nor humanity that any life-tenured GOP-appointed judge is bound to respect.
Alternative: There is a readily available alternative statutory interpretation, adopted by the 4th Circuit and the dissent, that would recognize the human and legal rights of vulnerable refugees seeking legal protection and give them hearings on continuing custody in substandard conditions (in some instances, conditions in the “DHS New American Gulag” fall well below those that would be imposed on convicted felons).
You can’t win ‘em all: The Round Table was one of many organizations filing an amicus brief on behalf of the refugees and in support of the position adopted by the 4th Circuit and the dissent. While we were unsuccessful on this one, at least we are on the “right side of history.”
Creative suggestion: Detainees should incorporate, perhaps as a pipeline company, or better yet a gun rights’ group, so that they would have legal rights and be treated as “persons” (e.g., “humans”) by the Supremes’ GOP majority.
Next steps:
Advocates should prevail on the Biden Administration to change the regulations to give this limited subclass of applicants for protection a chance to seek bond before an Immigration Judge;
Advocates should keep up the pressure on the Biden Administration and Garland to appoint better judges at EOIR: progressive practical experts, who know how to grant legal protection efficiently and fairly and who will establish appropriate legal precedents to help these cases move through the EOIR system on the merits in a timely and fundamentally fair manner consistent with due process. The length of time it takes “Withholding Only” cases to move through the Immigration Courts has lots to do with: unfair, coercive detention practices by DHS; poor judging and bad precedents at EOIR; incompetent “judicial administration” and politicized “Aimless Docket Reshuffling” @ EOIR by DOJ politicos and their EOIR “retainers.”
Long term solution:
Support and vote for progressive legislators who will revise the immigration laws to do away with the unnecessary and wasteful“New American Gulag;”
Vote progressive candidates for President and the Senate: political officials committed to putting better Federal Judges on the bench at all levels — “practical scholars” with real experience representing the most vulnerable in society and who will tirelessly enforce due process, equal protection, human rights, and fundamental fairness for all persons regardless of race, religion, or status; judges who understand and will seriously reflect on the “real life” human consequences of their decisions. Better judges for a better America!
“Sadly, over the last two decades the US has been unable to get beyond this vision of ‘deterrence’ of legal asylum seekers.“ — Floaters — “How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Vice President Kamala D. Harris Vice President of the United States. — “So far, she hasn’t gotten beyond the mistakes of the past, either. Taking a tour with CBP won’t help.” (Official Senate Photo)
Last week, Ms. Harris traveled to Guatemala to meet with President Alejandro Giammattei and expressed the Biden administration’s goal to “help Guatelmalans find hope at home.” During a press conference on June 7, she told Guatemalans thinking of making the journey north to the United States: “Do not come. Do not come.”
“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”
If Ms. Harris does travel to the border, Father Murphy said, she should be sure to make a visit to the Mexican side. “If she just stays on her side, she’s not going to find much,” he said.
In Tijuana, Ms. Harris would see a camp of 2,000 asylum seekers near the port of entry, Father Murphy said. “If she looked a little further, she would see the people who are victims of violence in Tijuana and Mexicali and other places,” he said. Migrants may be eager to escape bad situations in their home countries, Father Murphy said, but they often do not understand how difficult conditions at the border are “until they’re stuck in the middle of [a border city] with no place to go.”
“You can’t understand [border realities] by talking to government officials. You have to talk to the people who are working with migrants and hear about the suffering.”
At diminished capacity because of the pandemic, migrant shelters are full. The United States has started to accept some vulnerable people, like families with children with an illness or those being persecuted because of their sexual orientation, Father Murphy said. But there are also hundreds deported every day.
He believes if the vice president did decide to visit the border, it would be worth her while. “You can’t understand [border realities] by talking to government officials,” Father Murphy said. “You have to talk to the people who are working with migrants and hear about the suffering.”
. . . .
Donald M. Kerwin Executive Director Center for Migration Studies
Donald Kerwin, the executive director of the Center for Migration Studies in New York, also noted that people have a right not to migrate—to stay in their home country. He sees immigration policy as an arena for a fruitful convergence of Catholic social teaching, international law and contemporary human rights principles.
The Biden administration’s recognition of the forces that drive migration should be applauded, but it can address root causes while re-establishing humane asylum policies at the border.
“States are responsible for ensuring that people can flourish at home,” he said. “But it’s an empty right at this point in many communities in the Northern Triangle countries. They’re facing impossible conditions, caused by natural disasters, climate change, gang violence and extraordinary poverty. So people have a right to flee those impossible conditions and seek lives that are worthy of human dignity. In some cases, that means leaving their countries.”
When they do leave their home countries, people have the right to seek protection wherever they can find it, Mr. Kerwin said. “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.”
The United States needs a functioning refugee resettlement system, an asylum system and robust humanitarian programs to address the conditions in Central America that are driving people to migrate, he said. “They’re not in place right now,” Mr. Kerwin said, “and until they are in place, people will reluctantly, at a terrible cost…continue to migrate.”
If Ms. Harris visits the border, Mr. Kerwin suggested she speak with migrants that have entered the United States, starting with the children. “Find out why they’ve come, what drove them to the United States and also see what their situation is currently, in often overcrowded facilities,” he said. “At that point, it would be clear as day that these folks are not a problem. These folks fled terrible problems, but they themselves are not the problem.”
Earlier this month, more than 20 bishops, Vatican representatives and leaders of Catholic organizations met for an emergency immigration meeting at Mundelein Seminary, outside of Chicago. Mr. Kerwin, who attended the meeting, said organizers displayed notes written by immigrant children, often addressed to God.
“It’s clear from reading these notes that these are lovely children, who miss their parents and worry about them and are in difficult situations that are not of their own making. And that the United States should do right by them,” he said. “And the right thing is to protect them and reunify them with family members.”
Chloe Gunther, America intern, contributed to this story.
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Read the full article at the link.
Politicians of both parties are averse to the truth. They don’t have the courage and backbone for it! But the truth is quite simple, if somewhat “inconvenient.”
Unless and until we can solve the problems driving refugees to flee the Northern Triangle, we will have to take more of them. We should welcome them through an orderly legal system, including a robust, properly staffed, and honestly administered legal refugee and asylum system.
Alternatively, we could continue our current policies of immorally and illegally killing some on the journey, “snuffing” some in the desert (where their bodies might never be found and “counted”), and enriching smugglers and cartels who will eventually get many determined survivors into the interior.
There, they will join our highly exploitable, yet politically expedient for both parties (for differing reasons), “extralegal population.” Alimited number will be “in the wrong place at the wrong time” and be arbitrarily removed by ICE, usually at costs that far exceed any demonstrable benefits. Even fewer will commit misconduct leading to their arrest and removal.
But the bulk of them will blend in somehow and do what’s necessary for themselves and their families to survive, as has been happening for decades and generations. They will also enrich and improve our nation in ways both predictable and unpredictable. Some will eventually find it possible and advantageous to return to their nations of origin, most won’t.
It would be far better for both the migrants and our nation, not to mention humanity as a whole, if we included the bulk of those forced to come here in our legal immigration system. But, whether we are enlightened enough “to do it the right way” or not, they will come as long as the alternatives are starvation, death, unspeakable abuse, and unending despair.
Migration is both our oldest and most persistent human phenomenon and an essential survival skill for humanity. It’s going to take more than inane walls, cruel and illegal imprisonment in American Gulags, unworkable laws, mindless, yet expensive, enforcement, nativist rhetoric, bad judges, and cowardly politicians sending “don’t come” messages to make them “die in place.” Our politicians might be not be bright or brave enough to face reality — but, I guarantee that the forced migrants we like to dehumanize and look down upon are much smarter, braver, more aware, and far more creative, adaptable, and capable than we think!
On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1 Matter of A-B-, issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2 Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3 And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4
Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being. Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment. If final rules are eventually published, it will occur well into next year.
As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.
As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5 That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6 While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.” In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone. Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave. While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.
As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7 While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.
For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country. While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.
First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone. In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8 However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.
The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9 And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset. The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10 Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.
But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection. In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.
The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous. However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.
The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County. The Court explained that the test
incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.11
In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12 But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.
Had the proper test for nexus been employed in L-E-A-, asylum would have been granted. Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist. However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13
As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course. The problem is compounded by the particular composition of the BIA at present. For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims). Three had an asylum denial rate in excess of 98 percent.14
This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-. This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state. The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.
One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy. Might it have been because of her gender?
Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward. Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.
Copyright 2021, Jeffrey S. Chase. All rights reserved.
The regulations under consideration at that time were never issued.
27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).
UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.
James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.
Hathaway and Foster, supra.
Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).
Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.
Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis.
No regulation can bring decisional integrity and expertise to a body that lacks both!
Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
Progressive judges appointed to BIA: 0
Progressive judges appointed to Immigration Court: 0
Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
Billy Barr Selected Immigration Judges Appointed: 17
“Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
Number of BIA precedents decided in favor of respondent: 2
Number of BIA precedents decided in favor of DHS: 9
That’s right, folks:Billy Barr and Stephen Millerhave had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense?
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!
Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!
🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴☠️
“When will it end, Judge G? When will it ever end?” –“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
PANEL:Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Salvador Mendoza, Jr.,* District Judge.
OPINION BY: Judge Mendoza
STAFF SUMMARY:
Granting Ravinder Kaur’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in concluding that Kaur failed to establish material changed circumstances to warrant an exception to the time limitation on her motion to reopen, and in concluding that she failed to establish prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.
Kaur sought to reopen her removal proceedings based on a combination of changed personal circumstances – the death of her abusive husband and his family’s threats that they would kill her if she returned to India because she was responsible for his death, and changed country conditions – including worsening conditions in India for women and widows.
The panel held that the Board mischaracterized the record and erred in concluding that Kaur presented evidence of only changed personal circumstances in support of reopening. The panel explained that while a self-induced change in personal circumstances does not qualify for the changed circumstances exception, that principle cannot apply rigidly when changed circumstances in the country of origin, while personal to the petitioner, are entirely outside her control, as was the case here. The panel further
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
KAUR V. GARLAND 3
explained that even where any change in personal circumstances is voluntary and did not originate in the country of nationality, the changed circumstances exception applies where changes in personal circumstances are made relevant due to changes in country conditions. The panel wrote that Kaur’s husband’s death, and his family’s death threats, were made relevant by increased violence in India against women, and in particular against widows. The panel further wrote that, contrary to the Board’s determination that Kaur provided evidence of only generalized conditions, Kaur presented evidence demonstrating that the prevalence and severity of human rights violations against women and widows had materially worsened in many respects.
The panel held that the Board also erred in concluding that Kaur failed to establish prima facie eligibility for asylum and withholding of removal relief. First, the panel concluded that the Board erred in determining that Kaur failed to establish that a protected ground, including her membership in a family social group, would be one central reason, or a reason, for the harm she fears. The panel wrote that a person may share an identity with a persecutor, and if a member of a particular social group is persecuted by other members of that same group because those members perceive the applicant as being “insufficiently loyal or authentic” to that group, she has been persecuted on account of a protected ground. Second, the panel concluded that the Board erred by requiring Kaur to show that her similarly situated family members had been mistreated. The panel explained that the safety of similarly situated members of the family who remained in the country of origin may be pertinent to a claim of future persecution, but does not itself disprove it, and in this case, the Board relied on the safety of Kaur’s daughter, who was not similarly situated. Third, the
4 KAUR V. GARLAND
panel concluded that the cultural context and Kaur’s evidence established more than a mere personal vendetta.
The panel held that the Board erred in concluding that Kaur failed to establish prima facie eligibility for CAT protection. First, the panel held that the Board erred in applying a “more likely than not” standard, rather than requiring Kaur to show a “reasonable likelihood” of meeting the statutory requirements for CAT protection. Moreover, the panel concluded that the Board abused its discretion in determining that Kaur did not meet the government consent or acquiescence requirement. The panel pointed out that Kaur presented evidence that her husband’s family is wealthy and has the means of carrying out their threats, that India suffers from widespread corruption, and that officials respond ineffectively to crimes, especially those against women. Based on that evidence, the panel concluded that the Board did not have substantial evidence to dismiss Kaur’s fears as speculation.
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This is outrageous! In addition to raising issues about Garland’s failure to replace the “Killer BIA” with real progressive judges who are experts in human rights, due process, and immigration law, as almost every expert recommended, it raises serious concerns about Associate AG Vanita Gupta’s inexplicable failure to bring in litigation competence at OIL. Presenting and defending this mess as acceptable performance by DOJ quasi-judicial officials raises very serious ethical questions about both the “judges” and the attorneys defending their obviously defective, bias-based, anti-asylum, anti-female work product.
As many of us have been saying ever since the election, the “thorough housecleaning” at DOJ can’t wait! There is plenty of evidence to get the government lawyers participating in this mockery of justice out of leadership and decision-making positions, at a minimum! The fact that this case was argued under the Trump regime does not change the unethical performance at OIL or the incompetence of the BIA. Folks who “go along to get along” with violations of law and ethics, particularly in support of a White Nationalist agenda, should not be holding responsible Government legal positions. PERIOD!
Every individual and group who believes in due process, equal justice, gender fairness, good government, humanity, racial justice, and legal ethical norms should be demanding that Garland, Monaco, Gupta, and Clarke change leadership at EOIR, immediately relieve and replace (even if on a temporary basis) the BIA, and bring ethics, expertise, and competence to OIL.
Kristen Clarke, some the most outrageous “civil rights abuses” in America here taking place right at the DOJ — at EOIR and OIL! Others are “hidden in plain sight” at DHS, particularly in their “New American Gulag.” You’re NOT going to solve voting rights, police misconduct, or any other civil rights problem inAmerica without first getting the DOJ’s house in order. And, that means standing up to your dawdling and, to date, remarkably ineffective “political bosses” and demanding immediate change!
It’s YOUR REPUTATION, along with the lives of refugee women like Ms. Kaur, that are on the line here!
This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm
Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published
PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.
OPINION: JILL PRYOR, Circuit Judge
KEY QUOTE:
Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.
§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.
Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore
1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).
2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.
2
USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32
manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.
***************
Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR yet another chance to deny for specious reasons (as they have already done twice). Thisidiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations!
The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):
A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).
Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”
I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?
Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better.
Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted andpromoted by Garland at DOJ is all about!
A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!
This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better!And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum.
This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!
Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!
And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland!
Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!
Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!
It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage!
NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!
Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!” — Public realm
🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!
The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.
Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.
“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”
Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.
Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.
. . . .
In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.
One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.
Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.
Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.
“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”
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Read the full article at the link.
You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!
I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again!
Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!
Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony.
To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.
Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.
At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!
But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it.
However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR!
Time for this long-running show at DOJ/EOIR to end! PHOTO: Thomas Hawk Creative Commons Amateur Night
“This Dude loves the ‘Miller Lite’ approach to asylum by Garland and Mayorkas, as well as Harris’s latest tone-deaf ‘victim shaming.’” Keeps him (as well as human smugglers) in business! Reaper Image: Hernan Fednan, Creative Commons License
SAN MIGUEL, El Salvador — Rejected by her family, Zashy Zuley del Cid Velásquez fled her coastal village in 2014, the first of a series of forced displacements across El Salvador. She had hoped that in the larger city of San Miguel she could live as a transgender woman without discrimination and violence, but there she was threatened by a gang.
She moved away from San Miguel, then back again in a series of forced moves until the 27-year-old was shot to death April 25, sending shock waves through the close-knit LGBTQ community in San Miguel, the largest city in eastern El Salvador.
“Zashy was desperate; her family didn’t want her … and the gangsters had threatened her,” said Venus Nolasco, director of the San Miguel LGBTQ collective Pearls of the East. “She knew they were going to kill her. She wanted to flee the country, go to the United States, but they killed her with a shot through her lung.”
One day after Del Cid’s slaying, U.S. Vice President Kamala Harris identified anti-LGBTQ violence in Central America as one of the root causes of migration in the region during a virtual meeting with the president of neighboring Guatemala, Alejandro Giammattei. She is visiting Guatemala and Mexico this week.
Transgender migrants were present in the Central American caravans that attempted to reach the United States border in recent years, fleeing harassment, gang extortion, violence and police indifference to crimes against them. Even in those large migrant movements, they say they faced harassment.
Things had been rough during Del Cid’s first stint in San Miguel. She had been living in a neighborhood where, as in many parts of the country, the MS-13 gang was the ultimate local authority. Gang members began to harass her, then brutally beat her, breaking her arm in 2015, Nolasco said.
“They warned her to leave, but she didn’t listen,” Nolasco said.
Del Cid moved in with Nolasco in the same neighborhood. One day, the gang grabbed Del Cid again.
“They took her, they wanted to kill her,” Nolasco said. “I begged them not to kill her, to let her go and she would leave the neighborhood.”
Del Cid moved back to her hometown, but her family rejected her again. She tried to please them, but she couldn’t, Nolasco said. Del Cid joined a church, got a girlfriend and had a baby girl, but could not maintain that life, she said.
She returned to San Miguel, where initially things seemed to go better. In 2020, Del Cid received humanitarian and housing support from COMCAVIS TRANS, a national LGBTQ rights organization, and the United Nations High Commissioner for Refugees.
Del Cid rented a home and opened a beauty salon there. She hired another woman to help her and was participating in an entrepreneurship program. She was preparing a business proposal to move the salon into its own space.
But Del Cid was shot in the back walking alone at night down the street. Passersby tried to help her and took her to a hospital, where she died. So far, police have made no arrests, and Nolasco believes that like other hate crimes in the country, “it will be forgotten; they’re not interested in what happens to us.”
Laura Almirall, UNHCR representative in El Salvador, said Del Cid’s killing frightened her community and saddened everyone who knew her.
“She was excited about her new plans and her new life. And unfortunately and tragically, everything came to an end,” she said.
Nolasco said that in San Miguel, some 70 miles east of the capital, the transgender community endures constant harassment from intolerant residents and gangs. They have rocks thrown at them, are beaten and are victims of extortion. If they go to police to make a report, they are insulted and demeaned. “Don’t come here to claim rights, because there are no rights for you,” police tell them, Nolasco said.
. . . .
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Read the rest of the article at the link.
Despite some legal nonsense from EOIR and sometimes from uninformed Circuit Judges who have never represented asylum seekers and know little of actual conditions in the Northern Triangle, neither El Salvador nor the other Northern Triangle governments are “willing and able” to protect most individuals suffering gender-based and other forms of persecution.Decisions claiming otherwise are, in most cases, legally wrong and disingenuous to boot.
The U.S. asylum system needs expert Asylum Officers at DHS and progressive expert Immigration Judges at EOIR. Babbling (misleadingly) about “sealed borders” won’t take the place of telling Garland and Mayorkas to stop screwing around, bring in progressive experts, and fix the U.S. asylum system before more die! V.P. Harris could have taken the first necessary step toward “fixing the Southern Border” without even leaving DC.
How are we going to promote the rule of law in other nations when we ourselves are unwilling to exhibit honesty and follow the law with respect to the most vulnerable in the world seeking legal refuge at our borders?
Vice President Kamala D. Harris Vice President of the United States — She thinks that laws are for others and that platitudes solve problems. (Official Senate Photo)
VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TORICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!— There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!
By Paul Wickham Schmidt
Courtside Exclusive
June 9, 2021
Every individual, regardless of status, has a legal right to apply for asylum at our border. This law was enacted on 1980 to carry out our legal obligations under the U.N. Convention and Protocol on the Status of Refugees, to which we have been party since 1968.
Right now, the U.S. has neither a legal asylum system operating at ports of entry nor does it have a functioning refugee program in Central America. Borders were illegally closed and legal immigration avenues were suspended by the White Nationalist Trump Administration on various pretexts involving false narratives about COVID, labor market impact, and national security, among others. At one point Trump even made the absurdist claim that America is “full!”
The Biden Administration has peddled rhetoric about re-establishing legal immigration. But, to date they have neither re-established the rule of law for asylum seekers at our Southern Border nor have they instituted an operational refugee program for Central America.
How bogus is the Biden/Harris continuation of the COVID facade for closing the border? Well, I didn’t hear much mention from Harris in Guatemala of COVID as a reason not to come or any promise to restore the legal asylum system once the “fake COVID emergency” is resolved.
So, there is no legal way for those in Guatemala and other countries to seek refuge in the U.S. Ignoring requests from experts and humanitarian NGOs, the Biden Administration has also stubbornly failed to repeal biased “precedents” from the Trump DOJ designed to make it difficult for refugees fleeing Latin America, particularly women, to qualify for legal protection despite the fact that their lives and safety will be in danger if returned.
Our scofflaw actions actually leave refugees needing protection no choice but to cross the border surreptitiously. We have suspended the rule of law for legal asylum seekers, while dishonestly claiming that they, not we, are the “law breakers.” After nearly 50 years in and sometimes out of the immigration bureaucracy, I know bureaucratic doublespeak when I hear it.
Remarkably, Vice President Harris seems to have cribbed her public statements on Guatemalan asylum from Gauleiter Stephen Miller. Even more astoundingly, Miller’s influence on the Biden Administration’s failing immigration policies, particularly at Garland’s dysfunctional EOIR, continues to far exceed that of the diverse coalition of progressive experts, human rights advocates, and civil rights leaders who helped elect Biden and Harris! Talk about disrespect and being taken for granted!
In other words, America has totally “welched” on our legal and moral obligations to refugees and asylum seekers. Yet, incredibly, Harris warns them to stay in places where their lives and safety are in immediate danger, rather than taking a calculated risk of finding safety in the United States.
Since the U.S. no longer has a rule of law for asylum seekers or refugees, this usually means trying to enter with the aid of paid smugglers who offer them something the U.S. is unwilling to provide — a realistic possibility of refuge in time to save their lives! It’s certainly “not rocket science!” But, disturbingly, it appears to be above Harris’s pay grade!
As smugglers point out, the possibility of getting to the interior of the U.S., and there finding “do it yourself” refuge in our intentionally-created and often exploited “underground population,” actually far exceeds the chance of being granted asylum, even when we had a “somewhat” functioning asylum system. That’s largely because our law has long been improperly politically “gamed” (by Administrations of both parties) against asylum seekers from Central America.
So, nobody actually knows how many would qualify for asylum under a fair and unbiased system. We’ve never had the moral courage to set up such a procedure. Instead, we have used imprisonments, family separations, racist rhetoric, criminal prosecutions, and skewed legal denials from “captive courts” tilted in favor of DHS enforcement as “deterrents” to desperate refugees from our own Hemisphere.
Our nation fears complying with our own laws! Not much of a “profile in courage” here!
The Vice President concedes that the “in place” assistance she is offering to individuals in some of the world’s most corrupt and lawless countries is unlikely to have any impact for years to come. And, that’s assuming that the Biden Administration’s aid plan is better than those that have failed in the past, which it well might be. It certainly will be better than the insane cruelty and improper “enforcement only” efforts of the Trump Administration.
She is correct that most, but not all, Guatemalans would prefer to live in Guatemala if that were possible. But, the problem she insists on “papering over” is that survival in Guatemala currently is not reasonably likely for many Guatemalans. Unless and until Congress creates a more realistic legal immigration system, there is simply no realistic opportunity for many Guatemalans other than to apply for asylum at the border.
While asylum law would not cover them all, a proper interpretation and application through a re-established and meaningfully reformed system, overseen by expert judges (currently eschewed by Garland’s dysfunctional Immigration Courts) could admit many more legally and timely than the current non-existent system or past ones intentionally skewed against asylum seekers in a futile, improper attempt to use the legal process as a “deterrent.” It would also encourage and motivate asylum seekers to apply at legal ports of entry rather than crossing surreptitiously.
Yet Harris’s “clear message” (of non-hope) to the oppressed people in the Northern Triangle is for them to “die in place,” while awaiting long-term solutions that might or might not ever happen. Meanwhile, the world’s richest nation lacks the will and determination to re-establish a legal asylum screening and adjudication system at our Southern Border.
Harris also wants the desperate masses “yearning to breath free” to know that the beacon of freedom no longer burns in America. We think it would be better if they died where they are, largely out of our sight and out of our mind.
We resent their efforts at survival, forcing us listen to their screams at our border for help that we prefer to deny (in violation of our legal obligations). We are bothered by the stench of the dead and annoyed by the news media’s incessant reporting on the Administration’s continuing failures of legality and humanity. Better (for us, not them) if they don’t come.
It’s an interesting “lesson” on racial and immigrant justice, as well as gender justice, from a Vice President who apparently prefers “inspiring” future generations to taking the tough, courageous moral and legal stands necessary to preserve and protect the current ones!
The Vice President might be correct on the rudiments of a better and more realistic long-term migration and economic plan for the Northern Triangle. But, her failure to recognize the essential first step of making the existing legal asylum asylum system work, and her unwillingness to tell Garland and Mayorkas to stop the foot-dragging and start complying with our laws and our Constitution, will doom her efforts long before they could ever have any positive impact.
The Southern Border is a big challenge. The solution has eluded all of Harris’s male predecessors, including her current boss, for the last half-century.
It requires an end to “Milleresque” platitudes and an honest recognition of the human realities of forced migration. It cries out for a strong knowledgeable leader who will re-establish the legal asylum system already in the law, insist that for the first time in our history it be operated by experts with robust humanitarian protection goals, real progressive expert judges, and full constitutional due process. It demands an end to the mindless dehumanization and demeaning of asylum seekers and recognition that those granted asylum are legal immigrants, a source of strength, and a benefit to our nation, not a phenomenon to be demonized and feared.
It requires a robust refugee program in the Northern Triangle that takes the pressure off the border asylum system until needed changes in the legal immigration system can be pushed through Congress and the longer-term improvements in infrastructure and governance in the Northern Triangle take effect.
It also requires a leader with the comprehensive knowledge and moral courage to defend robust legal refugee and asylum systems and more legal immigration from the onslaught of racially-charged, myth-based attacks from White Nationalists and nativists that are sure to follow. She would also have to deal with pushback from an entrenched immigration bureaucracy and weak leadership from Garland and others who have continued to feed the problems rather than solve them.
Unfortunately for Vice President Harris, our nation, and, most of all, the forced migrants whose lives and humanity are on the line every day, right now the job appears to be bigger than the person.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers”. — “The reality of racial justice and the rule of law for people of color at our Southern Border is rather sobering, as the Biden Administration fails to usher in needed progressive reforms. How many more people will die because this Administration won’t follow the Constitution, The Refugee Act, and our international obligations? We’ll never achieve racial justice so long as dehumanization of people of color is our official policy, carried out by a broken and dysfunctional DOJ!” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Vice President Kamala D. Harris Vice President of the United States — “Will she be able to get beyond the mistakes of the past and put rationality, humanity, and the rule of law in place at the Southern Border. So far, the results of her leadership are NOT encouraging for those who believe in progressive, humanitarian, legal policies.” (Official Senate Photo)
James Fredrick is a multimedia journalist based in Mexico City and covers migration, crime, politics and sports.
. . . .
Obama tried deterring migrants with his characteristic lawyerly tact. Trump did it with his cruel, petty impulsiveness. Biden is doing it with his folksy toughness. The styles are different, but the results of immigration deterrence will always be the same.
We’re trapped in this cycle because the U.S. government refuses to listen to migrants. Having met hundreds of migrants during my years reporting in Mexico and Central America, it’s obvious why deterrence doesn’t work: What’s at home is worse than anything the United States could threaten. Most migrants don’t want to leave home. But they do because violent death or crippling destitution is all that’s left.
Failing to actually come up with a solution, we of the “greatest country on Earth” become tremendously feeble and defensive at the arrival of a few thousand immigrant children. But there is another way.
We must treat immigration as a civil and humanitarian issue, not a criminal one. Criminalizing people fleeing violence, persecution, climate change or economic hardship exacerbates these problems. So decriminalize border crossings and rebuild border facilities as welcome centers, not jails. Border Patrol and Customs and Border Protection agents at the border should be social workers, not cops.
If Trump’s family separation atrocity showed us anything, it’s that millions of Americans want to help immigrants in need. The United States should cooperate more with these groups. There are already large networks around the country that can provide housing, food, legal services, education and medical services to immigrants. Why rely on expensive armed border agents instead of willing, motivated humanitarian groups?
Immigration laws should also address the challenges of the 21st century. In addition to decriminalizing border crossings, our immigration laws rely on outdated quotas and corrupt, abusive worker programs. Asylum law is a relic of the Cold War and doesn’t reflect the world today.
Finally, Washington should stop making the problems worse with bad foreign policy. Despite numerous abuses, scandals and criminal allegations involving Honduran President Juan Orlando Hernández, the Biden administration refuses to denounce him, though many think he is responsible for the conditions Hondurans are fleeing. In fact, Biden administration officials are working with Hernández to try to prevent Hondurans from fleeing. He’s just one example in a long history of U.S. meddling to prop up corrupt, abusive, U.S.-friendly regimes. No amount of U.S. dollars in aid can make up for bad foreign policy.
President Biden can’t stop the crisis today. After all, he helped create it. But he can make sure this is the last “border crisis” we face.
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Read the complete op-ed at the link.
Ah, “mindlessly” — one of my favorite terms, usually applied these days to Garland and his inept team at DOJ! Actually, Frederick isn’t the only one to figure this out!
The problem remains, as I have stated over and over, the toxic failure of the Biden Administration to bring progressive experts in immigration, human rights, civil rights, and “applied due process” into Government and empower them to solve the problems! It’s bizarrely compounded by the disgraceful unwillingnessof those few in the Biden Administration, like Vanita Gupta and Kristen Clarke, who actually know better, to speak up for racial justice, social justice, human rights, and human dignity at the DOJ!
Unless VP Harris wakes up, convinces her boss, and brings in the progressive experts, she’s headed for the abyss, taking thousands of vulnerable refugees and, perhaps, American democracy down with her!
Refusal to listen: to migrants, their representatives, experts, our “better angels,” and common sense! The same problems, over and over, Administration after Administration, decade after decade! The same “built to fail” policies repeated!
The truth is in front of the Biden Administration! But, like Garland, Mayorkas, and others leading the way over the cliff, Biden and Harris can’t see it! They appear to have “tuned out” those desperately trying to keep them from plunging over the precipice! So tragic, so unnecessary, so threatening to American democracy and the future of humanity!
Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!” PHOTO: UNHCR website
Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)Natalie Gonnella-Platts Director, Women’s Initiative George W. Bush Institute PHOTO: Bush InstituteJenny Villatoro Associate, George W. Bush Institute-SMU Economic Growth Initiative PHOTO: George W. Bush Institute
By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:
When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.
But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.
Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.
Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.
Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.
They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.
Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.
Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.
COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.
Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.
According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.
Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.
Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.
Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.
How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.
Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.
Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.
Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.
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“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.
What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”
With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system!
Debi Sanders ESQ “Warrior Queen” of the NDPA PHOTO: law.uva.edu
Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.
For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?
Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.
030114-O-0000D-001.President George W. Bush. Photo by Eric Draper, White House. “Why is this guy willing to speak up for immigrants’ rights . . . .
Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences.
“ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland Official White House Photo Public Realm
What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!”
James “Jim” Crow Symbol of American Racism, still right at home at Garland’s EOIR!“She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?
Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here! Vice President of the United States (Official Senate Photo)
I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!
Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!
There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders!
By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!
🇺🇸🗽⚖️🧑🏽⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”
“This case presents the question whether the departure bar limits an IJ’s ability to reopen immigration proceedings sua sponte. We have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D), and we conclude that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ’s discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, we grant the petition for review.”
Petition for Review of a Decision of the Board of Immigration Appeals _______________________
(June 1, 2021)
Petitioner,
Respondent.
Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit Judges.
WILLIAM PRYOR, Chief Judge:
Kelly Sanchez-Castro, a native of El Salvador, petitions for our review after
she unsuccessfully sought relief from removal because a gang targeted her family based on the assumption that her father’s work in the United States made it
USCA11 Case: 19-15091 Date Filed: 06/01/2021 Page: 2 of 15
wealthy. The Board of Immigration Appeals denied her applications for asylum, withholding of removal, and protection under the Convention Against Torture, and substantial evidence supports its decision. Sanchez-Castro is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. And she is ineligible for protection under the Convention Against Torture because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. We deny Sanchez-Castro’s petition for review.
. . . .
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“Tough noogies, Baby! Chief Judge Pryor and his all-male, all White ivory tower panel don’t see any nexus here! So, suffer and die, Baby, suffer and die!” “She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
To reach its incorrect and life-threatening endorsement of the BIA’s misconstruction of the nexus requirements (throwing out the normal rules of causation to achieve an anti-asylum-seeker result) the 11th Circuit panel eschewed a much better and more intellectually honest approach by the 4th Circuit in Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
Notwithstanding Chief Judge Pryor’s cavalier attitude about sending Ms. Castro-Sanchez back to possible death or dismemberment at the hands of gangs who operate with relative impunity in El Salvador, these are not “academic exercises.” They are serious life or death matters involving bad law produced by a (non) “court” (the BIA) controlled by a law enforcement official (the Attorney General) that is not comprised of judges who are recognized experts in asylum and immigration laws and has over recent history construed the law against immigrants at almost every opportunity!
These two cases show the difference between this panel of the 9th Circuit that takes judicial review and what’s at stake seriously and the “indifferent to humanity” rubber-stamp approach applied by the 11th Circuit panel. We need better judges, progressives with expertise in due process, human rights, immigration, and racial justice at every level of our Federal Judiciary — from the Immigration Courts to the Supremes! Circuits like the 5th and the 11th with long and disgraceful records of relative indifference to the rights and lives of migrants, mostly those of color, are long, long overdue for infusion of better qualified progressive “practical scholars” and advocates.
That makes the progressive outrage over Garland’s totally inappropriate “giveaway” of Immigration Judge positions he controls to Barr-selected, non progressive, candidates who applied under a flawed recruitment process designed to discourage diversity and exclude the best qualified expert candidates from the private sector, along with his failure to address skewed anti-asylum-seeker precedents like L-E-A- and A-B– all the more understandable! It also makes changes that will put more expert, progressive, due-process oriented judges who have experience representing individuals in court all the more urgent!
Cases like this wouldn’t get into the “Article III Life or Death Lottery” if Garland had dealt promptly and properly with L-E-A-, A-B-, and other Trump-era, anti-asylum, anti-migrant, anti-due-process, misogynist precedents!
Attorney General Merrick B. Garland — His failure to institute long-overdue and obvious progressive due process reforms @ EOIR is costing Kelly Castro-Sanchez and other vulnerable refugee women their lives while enraging their advocates! It’s not an “academic exercise,” as Garland seems to think. There are real life consequences and irreparable harm from his failure to take due process, human rights, and racial justice seriously @ EOIR! Official White House Photo Public Realm
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Tell the Biden Administration that we need progressives, not more “regressives,” on the Federal Bench, starting with the Immigration Courts! End abusive judging by a non-diverse Federal Judiciary!
Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?” Official White House Photo Public RealmDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:
These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”
Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.
Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮
Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.
It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:
Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR –NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.
So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!
Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!
Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of ColorAbused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”
