"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The Round Table of Former Immigration Judges is composed of 46 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. We have centuries of combined experience adjudicating asylum applications and appeals. Our members include nationally- respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.
We view the proposed rule as an improper attempt to legislate through rule making. The proposed rule is inconsistent with Congressional intent and with our nation’s obligations under international law. The rule is also overly broad, and as worded, could be applied to virtually anyone. It requires determinations to be made based on pure speculation by officials lacking any required expertise in the subject. And the rule fails to consider much lesser, more humane approaches to address the issue.
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Read our complete comment at the above link.
Gimmicks, cruelty, illegally, gimmicks, cruelty, illegality. Over and over the regime targets asylum seekers with “crimes against humanity.”
Although all DHS statistics should be regarded as suspect, the recent assertions that the regime”s killer tactics are protecting America against COVID appear particularly bogus — especially given the Trump regime’s gross failure to protect Americans from the pandemic and the frequent myths and false claims blabbered by Trump in a pathetic attempt to downplay the disaster caused by his stupidity and malicious incompetence.
The net result of all these “Miller-hatched” cruel gimmicks to eliminate legal immigration (without legislative authority) appears to be steadily increasing levels of extralegal immigration. And that’s just the folks who get caught. Who knows how many get through and simply get lost in the interior?So, instead of a rational legal immigration and refugee system that encourages screening, testing where necessary, taxpaying, and data collection, thanks to the stupidity and cruelty of Trump and Miller, the fecklessness of Congress, and the complicity of the Supremes, we have created a larger than ever extralegal immigration system.
Diminishing ourselves as a nation,🤮 won’t stop human migration🗽!
U.S. Asylum Officer Jason Marks writes in the WashPost Outlook Section:
. . . .
Collectively, we were told to implement restrictive new policies, expressly designed to deter people from seeking refuge. The Migrant Protection Protocols, for example, resulted in more than 60,000 asylum seekers being sent to Mexico in 2019, after fleeing the extreme brutality of MS-13 and the 18th Street gang in Honduras, Guatemala and El Salvador. Left to live in squalor without any protection, they are preyed upon by cartels and gangs as they wait, sometimes months, for an elusive court date before an immigration judge.
[I became an asylum officer to help people. Now I put them back in harm’s way.]
The pandemic put refugees and asylum seekers in even more desperate straits, as the United States paused refugee resettlement. Many already interviewed and accepted for resettlement in the U.S. now live stateless at the margins of cities, towns and villages where they have no rights or legal status, or in overcrowded refugee camps. Around the world, in places including Jordan, Kenya and Bangladesh, refugee camps are bursting at the seams. People there are unable to practice social distancing, and soap and water are limited.
Meanwhile, at our borders, Customs and Border Protection has turned away thousands of vulnerable people since March, without due process. Some applicants showing symptoms of the coronavirus were deported with no regard for safety measures (such as testing), causing outbreaks in the countries from which they had fled. Others languish in crowded detention facilities, even though many of them pose no security threat and Immigration and Customs Enforcement has the discretion to release them. By law, children must be let out after 20 days of incarceration. But rather than release them with their parents, our government has presented these families with an agonizing choice: Either have their children released, indefinitely separated from their parents — or remain locked up together in these facilities, many of which have already witnessed coronavirus outbreaks.
Amid all this, in June, the administration proposed 161 pages of sweeping regulations that would gut asylum and refugee law. Certain provisions, for example, drastically narrow the definitions of persecution and torture; others raise certain burdens of proof to nearly unreachable standards and redefine what constitutes the protected grounds of political opinion and membership in a particular social group. Still others could disqualify applicants if they made a mistake on their tax filings, or took two or more layover flights on their way here. In July, the administration proposed yet another new policy, allowing the United States to deny asylum to applicants if they come from any country with an outbreak of a highly contagious disease. (Public health experts have said this would serve no legitimate public health purpose.) It’s difficult to see how anyone could qualify for protection under this tangle of new rules, once they’re implemented.
Years of tightening restrictions have made it harder to obtain a wide range of legal immigration benefits, causing applications to plummet and, with them, the user fees that fund U.S. Citizenship and Immigration Services operations. Now, the pandemic has placed our agency on the brink of bankruptcy, and 70 percent of our workforce faces an indefinite furlough unless Congress intervenes. Without emergency funding, only a skeleton crew will remain to administer America’s immigration services system — resulting in even greater backlogs in the processing of applications for benefits including asylum, green cards, work permits and citizenship.
Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here. If the current administration’s policies continue unchecked, there will no longer be a pathway for refugees to have a new beginning in the United States. Even if a different presidential administration tried to change course, I fear that it would take many years to reverse the damage and rebuild our capacity to protect refugees. Many people will lose their lives before then.
In the closing words of his farewell address, President Ronald Reagan described our country as a “shining city upon a hill”: “If there had to be city walls,” he said in 1989, “the walls had doors, and the doors were open to anyone with the will and the heart to get here.” That is still something most Americans believe in.
[Read more from Outlook:]
[Coronavirus can’t be an excuse to continue President Trump’s assault on asylum seekers]
[Americans are the dangerous, disease-carrying foreigners now]
[During the covid-19 pandemic, immigrant farmworkers are heroes]
[Follow our updates on Facebook and Twitter.]
Jason Marks, an asylum training officer with the United States Citizenship and Immigration Services (USCIS), writes here as a shop steward for Local 1924, American Federation of Government Employees, which represents employees of the USCIS Asylum and Refugee Officer Corps.
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Read the rest of Jason’s article at the above link.
It’s not rocket science! Misusing, misinterpreting, and misapplying refugee and asylum laws to “reject not protect” is clearly illegal, unconstitutional, and immoral to boot! It’s also, not surprisingly, toxic public policy because it squanders and misdirects resources on efforts to that actually hurt our economy, society, and reputation. In other words, fraud, waste, and abuse on a grand and deadly scale!
So, a career Asylum Officer has more legal knowledge, guts, and human decency than the life-tenured, yet removed from both reality and humanity, Supremes’ majority! What’s wrong with this picture!
75 years after the end of World War II, America has installed a racist, neo-Nazi White Supremacist Government.Go figure!
To make this happen, Trump and his cronies needed both a feckless Congress and Supremes committed to empowering authoritarian racism in the name of Executive authority. He got both!
We have an opportunity, perhaps our last as a nation, to return to a nobler vision of America. But it will require ousting not only the morally corrupt and maliciously incompetent Trump regime but also the equally immoral GOP Senators who have enabled and enthusiastically hastened our national demise. That will give us a start on the longer-term project of better Justices and Federal Judges for a better America.
There is no excuse whatsoever for the cowardly, disingenuous, and immoral failure of the Roberts Court to stand against Trump. Instead, they have embraced the “Dred Scottification” — that is, dehumanization — of refugees, asylum seekers, immigrants, and persons of color. Why is this judicially-enabled retrogression to the “Hay-day of Jim Crow” acceptable in 21st Century America?
This November, vote like your life and the future of our nation and the world depend on it! Because they do!
Diaz-Reynoso v. Barr, 9th Cir., 08-07-20, published
SYNOPSIS BY COURT STAFF:
Immigration
Granting Sontos Diaz-Reynoso’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her application for withholding of removal and protection under the Convention Against Torture, and remanding, the panel held that the Board misapplied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board and circuit precedent, in concluding that Diaz-Reynoso’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable, and that she failed to establish that the government of Guatemala would acquiesce in any possible torture.
The panel rejected Diaz-Reynoso’s contention that Matter of A-B- was arbitrary and capricious and therefore not entitled to Chevron deference. The panel concluded that, despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis.
The panel observed that the Board rejected Diaz- Reynoso’s proposed social group, with almost no analysis,
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
because it “suffered from the same circularity problem articulated by the Attorney General in Matter of A-B-.” The panel explained that in doing so, the Board appeared to misapprehend the scope of Matter of A-B- as forbidding any mention of feared harm within the delineation of a proposed social group. The panel concluded that this was error, explaining that Matter of A-B- did not announce a new rule concerning circularity, but instead merely reiterated the well- established principle that a particular social group must exist independently of the harm asserted. The panel recognized that a proposed social group may be deemed impermissibly circular if, after conducting the proper case-by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. The panel explained, however, that a proposed social group is not impermissibly circular merely because the proposed group mentions harm.
The panel concluded that the Board also erred in assuming that domestic violence was the only reason Diaz- Reynoso was unable to leave her relationship, and in failing to conduct the rigorous case-by-case analysis required by Matter of A-B-. The panel therefore remanded Diaz- Reynoso’s withholding of removal claim for the Board to undertake the required analysis applying the correct framework.
Because the Board failed to discuss evidence that Diaz- Reynoso reported her husband’s abuse to authority figures in her village community, and the government conceded remand was warranted, the panel also remanded Diaz-Reynoso’s CAT claim for further consideration.
4 DIAZ-REYNOSO V. BARR
Concurring in the judgment in part and dissenting in part, Judge Bress agreed with remand of the CAT claim in light of the government’s concession, but disagreed with the majority’s conclusion that the Board misread Matter of A-B- in rejecting Diaz-Reynoso’s proposed social group. In Judge Bress’s view, Matter of A-B- held that a proposed group that incorporates harm within its definition is not a group that exists independently of the harm asserted in an application for asylum or statutory withholding of removal. Judge Bress wrote that substantial evidence supported the Board’s assessment that Diaz-Reynoso’s social group was defined exclusively by the harm suffered, and that the Board correctly applied Matter of A-B-, and the circularity rule, in rejecting Diaz-Reynoso’s proposed social group.
COUNSEL:
Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates, Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf, Certified Law Students; Hastings Appellate Project, San Francisco, California; for Petitioner.
Joseph H. Hunt, Assistant Attorney General; John S. Hogan and Linda S. Wernery, Assistant Directors; Susan Bennett Green, Senior Litigation Counsel; Ashley Martin, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.S. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York New York, for Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals.
Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, Deborah Anker, and Zachary A. Albun, Attorneys; Rosa Baum, Caya Simonsen, and Ana Sewell, Supervised Law Students; Harvard Immigration and Refugee Clinical Program, Cambridge, Massachusetts; for Amicus Curiae Harvard Immigration and Refugee Clinical Program.
Ana C. Reyes and Alexander J. Kasner, Williams & Connolly LLP, Washington, D.C.; Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; for Amicus Curiae United Nations High Commissioner for Refugees.
PANEL: Ronald M. Gould, Morgan Christen, and Daniel A. Bress, Circuit Judges.
OPINION BY: Judge Cristen
CONCURRING/DISSENTING OPINION: Judge Bress
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Just another example of how under this regime, EOIR’s perverted efforts to deny and deport, especially targeting female asylum seekers from the Northern Triangle for mistreatment and potential deportation to death, waste time and effort that could, in a wiser more just Administration, be used to reduce dockets and waiting times by ensuring that well-documented, deserving cases like this one are rapidly granted. EOIR’s biased performance also reeks of both anti-Latino racism and misogyny. Here we are, two decades into the 21st Century with our immigration “justice” system still being driven by invidious factors.
The Supremes’ majority may feign ignorance and or indifference to Trump’s and Miller’s overtly racist immigration agenda. But, those of us working in the field of immigration had it figured out long ago. It’s not rocket science! The Trumpsters make little or no real attempt to hide their scofflaw intent and invidious motives. It has, disgustingly, taken a concerted and disingenuous effort by the Supremes’ majority to sweep these unconstitutional attacks on humanity under the carpet.
That’s why we need “regime change” in both the Executive and the Senate which will lead to the appointment of better judges for a better America. Justices and judges who will ditch the institutionalized racism and misogyny and who will make equal justice for all under our Constitution a reality rather than the cruel hoax and “throwaway line” that it is today under GOP mis-governance.
Many thanks to our good friends and pro bono counsel at Gibson Dunn for the help in drafting our Amicus Brief!
Federal agents are expelling asylum seekers as young as 8 months from the border, citing COVID-19 risks
Thousands of migrant children have been expelled by the Trump administration since March. Some have been held in hotels without access to lawyers or family. Advocates say many are now “virtually impossible” to find.
BY LOMI KRIEL, THE TEXAS TRIBUNE AND PROPUBLICA AUG. 4, 20208 HOURS AGO
A teenage girl carrying her baby arrived at the U.S. border this summer and begged for help. She told federal agents that she feared returning to Guatemala. The man who raped her she said had threatened to make her “disappear.”
Then, advocates say, the child briefly vanished — into the custody of the U.S. government, which held her and her baby for days in a hotel with almost no outside contact before federal officers summarily expelled them from the country.
Under this new policy, the administration is not deporting children — a proceeding based on years of established law that requires a formal hearing in immigration court.
It is instead expelling them — without a judge’s ruling and after only a cursory government screening and no access to social workers or lawyers, sometimes not even their family, while in U.S. custody. The children are not even granted the primary registration number by which the Department of Homeland Security tracks all immigrants in its care, making it “virtually impossible” to find them, Efrén C. Olivares, a lawyer with the Texas Civil Rights Project, wrote in a court declaration arguing that the practice is illegal.
Little is known about how the process works, but published government figures suggest almost all children arriving at the border are being rapidly returned.
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A sense of deja vu
Thirty-five years ago, a 15-year-old Salvadoran girl fleeing a civil war in her homeland was also imprisoned in an American hotel under the care of unlicensed private security guards. Jenny Flores’ case forced the most significant overhaul yet of how U.S. authorities can detain migrant children. In fact, the 1997 federal settlement is named for her.
Carlos Holguín, who began litigating that case in 1985, said there is now a sense of “deja vu … but the degree of lawlessness is even beyond what was going on then.”
Since taking office, the Trump administration has tried to end the Flores Settlement, arguing that it and a 2008 trafficking law work as “loopholes” encouraging families to send children here alone. The government has attempted to undo the settlement through regulations and requested Congress curtail the Trafficking Victims Protection Reauthorization Act, which requires certain safeguards for children arriving alone at the border.
So far, both efforts have failed.
The administration tried separating parents and children at the border, but a federal judge largely ruled against the practice in 2018, allowing it only in narrow circumstances such as if the adult poses a danger.
U.S. District Judge Dolly Gee, who is in charge of the Flores Settlement, has determined the administration must quickly release children locked up with their parents in immigrant detention centers, most recently citing the risk of coronavirus spreading.
“The family residential centers are on fire and there is no more time for half measures,” she wrote in a June 26 order.
The government is now arguing it can force detained parents to choose between freeing their children or staying indefinitely imprisoned with them.
But none of the administration’s attempts to undo either the settlement or the law have been as effective as the expulsion order, which is “eviscerating every single protection mechanism outlined by Congress and the courts with one sweeping gesture,” said Podkul of KIND.
“We expect all Hilton properties to reject business that would use a hotel in this way,” a Hilton spokesperson said.
Government attorneys agreed to pause the expulsion of the migrants who they said remained in the McAllen hotel on the date of the lawsuit — once again, ACLU attorneys said, mooting litigation on the broader policy. A separate suit involving a 13-year-old Salvadoran girl who was expelled this summer is still pending in a Washington, D.C., federal court.
By the time the administration stopped the removal of the migrants detained at the Hampton Inn, most who had been held there had already been expelled or transferred elsewhere — some, advocates said, just before the ACLU filed its lawsuit. Only 17 family members, including one unaccompanied child, remained in that hotel.
What happened to the rest? No one would say.
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Read the rest of the article at the link.
It might be “below the radar screen” during COVID-19. After all, that’s what criminals like the Trump kakistocracy and their DHS accomplices count on — a diversion so that they can abuse children and violate human rights and human dignity to the content of their evil, White Nationalist hearts.
But, eventually, the truth about the “crimes against humanity” by the regime’s cowards as well as the complicity of legislators, the Roberts Court, and a host of others will come out.
How will we explain to future generations what we have done to our fellow humans, particularly the most vulnerable who have sought our legal protection and found only cruelty, racism, and lawlessness? How will we justify racist-driven institutionalized child abuse and “Dred Scottification” of “the other” on our watch? We have become “Perp Nation!”
“Ricardo Javier Blanco, a citizen of Honduras, is a member of Honduras’s Liberty and Refoundation (“LIBRE”) Party, an anti-corruption political party that opposes the current Honduran president. After participating in six political marches, he was abducted by the Honduran police and beaten, on and off, for twelve hours. He was let go but received death threats over the next several months until he fled to the United States. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all relief, and the Board of Immigration Appeals (“BIA”) affirmed. Blanco now petitions for review of the agency’s decision, arguing that the BIA and IJ erred in denying his asylum and withholding of removal claims on the basis that his treatment did not rise to the level of persecution. He also argues that it was improper to require him to corroborate his testimony to prove his CAT claim. Because the agency misapplied our precedent when determining whether Blanco had established past persecution, and because it did not follow the three-part inquiry we established in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), before requiring Blanco to corroborate his CAT claim testimony, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings.”
This should have been a “no brainer” asylum grant!
Instead, after two levels of disturbingly unprofessional administrative decision-making, now driven by racism and overt anti-immigrant bias, and one layer of “real court” review, the case is basically back to square one. No wonder this “Deadly Clown Court” ☠️🤡 is running a 1.4 million backlog, and counting!
Think we have the wrong folks on the “Immigration Bench?” You bet! Two smart patent lawyers from Baker Hostetler run legal circles around an IJ, the BIA, and OIL!
Interestingly, a significant number of students in my Georgetown Law Summer Semester Immigration Law & Policy (“ILP”)Class have been patent examiners and/or patent attorneys! They have all been amazing, both in class dialogue and on the final exam. I suspect it has something to do with analytical skills, meticulous research, and attention to detail — always biggies in asylum litigation!
That’s why we must end a “built to fail” system that preys on unrepresented or underrepresented asylum seekers in illegal, intentionally inhumane and coercive, detention settings, where adequate preparation and documentation are impossible and where judges, too often lacking in asylum expertise, humanity, and/or the time to carefully research and deliberate, are pressured to engage in “assembly line denials.”
And, thanks to the racial dehumanization embraced by the Supremes’ majority many refugees, disproportionately those with brown or black skins, are completely denied fair access to the asylum hearing system. They are simply treated by our highest Court like human garbage — sent back to torture or potential death in unsafe foreign countries without any due process at all. So, the systemic failure is not by any means limited to the “Immigration Star Chambers.”
A simple rule of judging that appears “over the heads” of the current Supremes majority: If it wouldn’t be due process for you or your family in a death penalty case, than it’s not due process for any “person.” Not “rocket science.” Just “Con Law 101” with doses of common sense and simple humanity thrown in. So why is it beyond the capabilities of our most powerful judges?
If there is any good news coming out of this mess, it’s that more talented litigators like Gary Levin and Aaron Rabinowitz from firms like Baker Hostetler are becoming involved in immigration and human rights litigation. They often run circles around Billy the Bigot’s ethically-challenged group of captive DOJ lawyers, who can no longer operate independently and ethically, even if they want to.
So, in a better future, after regime change, there are going to be lots of really great sources for better judges out there at all levels of the Federal Judiciary from the eventually independent Immigration Courts, to the U.S. District Courts and Magistrate Judges, to the Courts of Appeals, all the way to the Supremes.
At the latter, we need new and better Justices: Justices who understand immigration and human rights laws and the overriding human interests at stake, who will “lose” the White institutional racial bias and perverted right-wing ideologies that infect our current Court, and who are dedicated to making the vision of folks like Dr. King and Congressman John Lewis for “equal justice under law” and an end to dehumanization of persons of color a reality under our Constitution and within our system of justice!
There is no excuse for the current Supreme Court-enabled travesty unfolding in a biased, broken, and dysfunctional immigration system every day!
Due Process Forever!
This November, vote like our nation’s future existence depends on it! Because it does!
Michelle Hackman and Alicia Caldwell report for the WSJ:
WASHINGTON—The Trump administration is nearing a deal with some immigrant advocates that would present a choice to jailed parents fighting denial of asylum: let their children be released without them or remain detained together indefinitely, according to federal court filings and lawyers for the children.
The deal is being negotiated between U.S. Immigration and Customs Enforcement and attorneys representing roughly 100 children in detention, a development that has divided the pro-immigrant advocacy community.
If enacted, the “binary choice” plan, as it is known, would realize a long-sought goal by the Trump administration not to release immigrant families seeking asylum together in the U.S. Many of these families report fleeing gang violence, poverty or corruption in Central American countries. The plan would allow parents to choose between releasing their children to relatives in the U.S. or long-term foster care, or keeping their families in detention, waiving rights given to the children under a 23-year-old court settlement.
That settlement, known as the Flores agreement, requires ICE to release migrant children in its custody, not entire families, though past administrations, including the Trump administration until last year, largely complied with it by releasing children together with their parents.
Most immigrant advocates oppose “binary choice,” arguing it is tantamount to a new family separation policy, akin to a policy the administration adopted briefly in 2018 to prosecute all adults crossing the border illegally. The policy resulted in children being taken away from those adults. The government halted those family separations after a broad bipartisan outcry, though it has been looking for other ways to deter migrant families from seeking asylum ever since.
“Asking a parent to choose between indefinite detention in a place where there is already a Covid outbreak and being separated from your child for an undetermined length of time, that is a coercive situation,” said Stephanie Alvarez-Jones, a staff attorney with Proyecto Dilley, which provides legal representation to families at the South Texas Family Residential Center in Dilley, Texas.
The lawyers working with ICE, who represent the children in continuing enforcement of the Flores agreement, say they are left with little choice and aim to protect the best interests of the migrant children.
“By negotiating, we’ve been able to substantially lessen the harshness of ICE’s proposal,” said Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law, which has managed the Flores Agreement.
ICE declined to comment on the details of the case, citing the pending litigation.
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Those with full WSJ access can read the complete article at the link.
It’s not rocket science. “Binary choice” is nothing but a racist scam designed by Stephen Miller and other White Nationalists in the regime primarily to punish asylum seekers of color and their children for seeking legal protection, to traumatize and duress them into giving up potentially valid claims, to inflict lasting psychological harm on non-white populations, and to serve as an example and deterrent to others who might dare to exercise their legal rights in the face of tyranny by a racist Executive. All of the foregoing are in clear violation of the 5th, 8th, and 14th Amendments to the U.S. Constitution, not to mention our asylum statutes and international instruments to which we supposedly are party. You don’t need a law degree to figure that out.
Those who have engineered, furthered, and gone along to get along with these gross abuses of children and betrayals of the human rights and dignity of the most vulnerable among us will not escape the judgment of history. Sadly, that will be small consolation for the multitude of broken bodies, traumatized minds, and damaged souls that they leave in their ugly wake!
42 For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no drink:
43 I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not.
44 Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee?
45 Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me.
“Andrei Skripkov, a citizen of Russia, seeks review of a decision by the Board of Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his application for asylum and the withholding of removal. Skripkov asserted in his application that he was persecuted in his home country on account of his political opinion. He specifically contended that his anticorruption whistleblowing activities motivated Russian officials to persecute him. The IJ and the BIA, on the other hand, found that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. In his petition for review, Skripkov argues that the BIA erred in disregarding evidence that he would be criminally prosecuted for his political opinion if he is returned to Russia. For the reasons set forth below, we GRANT Skripkov’s petition for review and REMAND the case to the BIA for further proceedings consistent with this opinion.”
When the objective is to reject, not protect, mistakes are inevitable. This is just the tip of the iceberg. Most folks whose lives are being chewed up and spit out by the “designed to be unjust” Immigration Court system don’t have the good fortune to be represented by Brenna D. Duncan or someone of her caliber.
Indeed, under the ongoing illegal travesty that now passes for “justice” in America, most legal asylum seekers are turned away at the border without any hearing or meaningful process at all.
Interestingly, Brenna D. Duncan, a rising superstar at the international commercial law firm of Perkins Coie appears to have practiced primarily in the area of commercial litigation. Yet, she clearly understands immigration and human rights law better than the Immigration Judge and the BIA Appellate Immigration Judges involved in this case.
That’s why actual experience representing immigrants and asylum seekers is such a critical qualification for good Immigration Judges at both the trial and appellate levels as well as being something that should be a factor in appointing future Article III Judges at all levels right up to and particularly including the Supremes. Years of one-sided prosecutorial or law enforcement experience is often no substitute for the “real deal” of experience understanding immigrants and asylum seekers from their perspective.
The current Immigration Court system is intentionally and fatally skewed against asylum seekers, immigrants, due process, and fundamental fairness. Until that changes, equal justice under law will continue to be a cruel, unachieved illusion in our American justice system.
For more than one hundred years, the entry fiction has enabled the US government to deny immigrants due process protections that the 14th Amendment clearly indicates apply “to any person within its jurisdiction.” Although Justice Alito seems to restrict the ruling to people who entered the country within the previous 24 hours and within 25 yards of the border, the logic of the decision poses a more ominous threat to all immigrants who were not lawfully admitted.
As Justice Sotomayor writes in her dissent, “Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.”
It is this threat to more than 10 million immigrants living in the United States without authorization that makes the Thuraissigiam decision such a blow to the basic principles of freedom and justice. It would be odd for a country that imagines itself to be a beacon of hope for people around the world to deny basic constitutional protections to asylum seekers when they finally cross our threshold.
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Read the full article at the link.
It’s not rocket science. The Constitution is clear. The “fog” here has to do with the disingenuous “reasoning” and legal gobbledygook cooked up by the majority Justices to deny Constitutional rights to people of color. Better judges for a better America! From voting rights to immigration, the current Supremes’ majority has too often undermined the right of all persons in America to equal justice under law. That’s exactly what institutionalized racism looks like.
Without major changes in all three branches of our failing Federal Government, equal justice for all in America will remain as much of an illusion as it has been since the inception of our nation. We have the power to do more than talk about equal justice — to start taking the necessary political action that will make it a reality. But, do we have the will and the moral courage to make it happen?
This November vote like your life and the life of our nation depend on it! Because they do!
Back before the 2016 election, GOP backbench Jim Crow hate monger Senator Jeff “Gonzo Apocalypto” Sessions saw a kindred spirit who would help him realize his whitewashed, faux Christian view of America: Donald Trump. Becoming the first Senator to endorse Trump got Gonzo a ticket to the U.S. Attorney General’s Office, where he quickly established himself as probably the worst inhabitant after the Civil War and before Billy Barr ( a period that notably includes “John the Con” Mitchell).
During his tenure, Gonzo separated families, caged kids, targeted vulnerable Latino refugee women for abuse, illegally punished “sanctuary cities,” expanded the “New American Gulag,” diverted prosecutorial resources from real crimes to minor immigration violations, expanded the “New American Gulag,” advocated discrimination against the LGBTQ community under the guise of religious bigotry, encouraged police brutality against Black Americans, aided efforts to disenfranchise Black and Latino voters, spread false narratives about immigrant crime and asylum fraud, dissed private lawyers, stripped Immigration Judges of their authority to control their own dockets, multiplied the Immigration Court backlogs, illegally tried to terminate DACA while smearing Dreamers, spoke to hate groups, issued unethical “precedent decisions” while falsely claiming to be acting in a quasi-judicial capacity, interfered with asylum grants and judicial independence, put anti-due-process production quotas on Immigration Judges, attempted to dismantle congressionally mandated “know your rights” programs, to name just a few of his gross abuses of public office. Indeed, other than Stephen Miller and Trump himself, how many notorious child abusers get to walk free in America while their victims suffer lifetime trauma?
Despite never being the brightest bulb in the pack, his feeble attempt at “legal opinions” sometimes drawing ridicule from lower court judges, Gonzo is generally credited with doing more than any other Cabinet member to advance Trump’s agenda of hate and White Nationalist bigotry. He actually was dumb enough to believe that his unswerving dedication to a program of promoting the white race over people of color and Christians over all other religions would ingratiate him with Trump.
That would assume, however, that Trump had some guiding principle, however vile and disgusting, beyond himself. Sessions might be the only person in Washington who thought racism would trump self-protection. I’m not saying that Trump isn’t a committed racist — clearly he is.Just that his commitment to racism is subservient to his only real defining characteristic — narcissism. Just ask his niece, Mary.
Gonzo failed in the only thing that ever counted: Protecting Trump, his family, and his corrupt cronies from the Mueller investigation. It wasn’t, as some have inaccurately claimed, a show of ethics or dedication to the law.
Even Gonzo realized that participating in an investigation involving a campaign organization of which he was a member and therefore both a potential witness and target, would be an egregious ethical violation that could cost him his law license as well as a potential criminal act of perjury, given that he had testified under oath during his Senate confirmation that he intended to recuse himself. Apparently, that was on a day when Trump was too busy tweeting or playing golf to focus on the implications of that particular statement under oath by his nominee.
After Trump fired him, Gonzo’s political fortunes took a sharp downturn. A guy who polled 97% of the vote in running unopposed for the Senate in 2014, polled only 38% of the vote in overwhelmingly losing the GOP primary to former Auburn Football Coach Tommy Tuberville. Tommy, a “Trump loyalist” with extreme far-right views and no known qualifications for the job, is not much of an improvement over Sessions.
Perhaps the only good news is that Alabama currently has a very decent and competent U.S. Senator, Doug Jones (D), who represents all of the people of the state. Everybody should support Doug’s campaign to maintain decency and commitment to equal justice in Government.
For those who want a further retrospective on Sessions’s grotesque career of promoting a return to Jim Crow while on the public dole, I recommend the following articles from Mother Jones and the Advocate:
Under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory may be returned by the Department of Homeland Security to that country pursuant to the Migrant Protection Protocols, regardless of whether the alien arrives at or between a designated port of entry.
That’s a high kill/abuse rate. But, that’s exactly what human rights criminals like Stephen Miller “get off on.” “Death to the other!”
And, so far, the Supremes have obliged the White Nationalists’ program of “Dred Scottification” as long as it applies to “the others,” primarily persons of color, not deserving in the elitists’ view of being treated as “persons” under the law or as “human beings” under any laws. Eventually, however, posterity will have something to say about Trump, Miller, Roberts, McConnell, Barr, Wolf, Sessions, Pence, Alito and a host of others who have knowingly participated in these intentional degradations of humanity and furthering of White Supremacy!
In their introduction, the proposed regulations misstate the Congressional intent behind our asylum laws.2 Since 1980, our nation’s asylum laws are neither an expression of foreign policy nor an assertion of the right to protect resources or citizens. It is for this reason that the notice of proposed rulemaking must cite a case from 1972 that did not address asylum at all in order to find support for its claim.
The intent of Congress in enacting the 1980 Refugee Act was to bring our country’s asylum laws into accordance with our international treaty obligations, specifically by eliminating the above- stated biases from such determinations. For the past 40 years, our laws require us to grant asylum to all who qualify regardless of foreign policy or other concerns. Furthermore, the international treaties were intentionally left broad enough in their language to allow adjudicators flexibility to provide protection in response to whatever types of harm creative persecutors might de- vise. In choosing to adopt the precise language of those treaties, Congress adopted the same flexibility. See e.g. Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804), pursuant to which national statutes should be interpreted in such a way as to not conflict with international laws.
The proposed rules are impermissibly arbitrary and capricious. They attempt to overcome, as opposed to interpret, the clear meaning of our asylum statutes. Rather than interpret the views of Congress, the proposed rules seek to replace them in furtherance of the strongly anti-immigrant views of the administration they serve.3 And that they seek to do so in an election year, for political gain, is clear.
In attempting to stifle clear Congressional intent in service of its own political motives, the ad- ministration has proposed rules that are ultra vires to the statute.
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Read our full comment at the above link.
Special thanks to the following Round Table Team that took the lead in drafting this comment (listed alphabetically):
Judge Jeffrey Chase
Judge Bruce Einhorn
Judge Rebecca Jamil
Judge Carol King
Judge Lory Diana Rosenberg
Judge Ilyce Shugall
Due Process Forever! Crimes Against Humanity, Never!
This fall, I am launching a new online certificate program at Villanova University to train immigrant advocates. The program is aimed at people who are passionate about immigrant justice but are not interested in pursuing a law degree at the moment, such as recent college grads, people seeking an encore career, retirees, and the many who currently work with migrants and want to understand more about the immigration laws that impact them. It is also attractive to students seeking to take a gap year or two between college and law school or high school and college.
The program is offered entirely online and is asynchronous, allowing students to work at their own pace and at times that are most convenient for them. I piloted the curriculum during last academic year and the students loved it. It launches full time in August, and will subsequently be offered each semester, so students can start in August, January, and May.
I reach out to you because I am now seeking adjunct professors to help teach the course. Adjunct Professors will work with me to teach cohorts of students as they move through the 3-Module curriculum. Module 1 focuses on how to work effectively with immigrants. Module 2 is designed to teach the immigration law and policy needed for graduates to apply to become partially accredited representatives. Module 3 has more law, and a lot of trial advocacy for those who want to apply for full DOJ accreditation. Each Module is comprised of 2×7-week sessions and students report that they have worked between 10-15 hours/week on the course materials. As an adjunct professor, you will provide feedback weekly on student work product, conduct live office hours with students and work to build engagement and community among the students in your cohort. Tuition for each Module is $1270, it is $3810 for the entire 3-Module certificate program.
Also, please note that scholarships are being offered through the Augustinian Defenders of the Rights of the Poor to select students who are sponsored to take VIISTA by DOJ recognized organizations. For more information on the scholarships, visit this page, https://www.rightsofthepoor.org/viista-scholarship-program
My best,
Michele Pistone
Michele
Michele R. Pistone
Professor of Law
Villanova University, Charles Widger School of Law
Director, Clinic for Asylum, Refugee & Emigrant Services (CARES)
Adjunct Fellow, Clayton Christensen Institute for Disruptive Innovation
610-519-5286
@profpistone
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What an fantastic opportunity to get teaching experience, work on a “cutting edge” program with my good friend and colleague Michele, one of the best legal minds in America, and to make a difference by improving the delivery of justice in America, while being paid a stipend!
A “perfect fit” for members of the New Due Process Army (“NDPA”).
The Trump administration has proposed a new rule that would allow it to deny asylum to immigrants who are deemed a public health risk.
The soon-to-be published rule would let the Department of Homeland Security and Department of Justice to block immigrants from seeking asylum in the U.S. based on “potential international threats from the spread of pandemics,” according to a notice announcing it Wednesday.
The rule would apply to immigrants seeking asylum and those seeking “withholding of removal” — a protected immigration status for those who have shown they may well face danger if returned to their home countries.
. . . .
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Read the rest of the article at the link.
This outrageous, totally pretextual, racist proposal violates the Constitution, asylum laws, international agreements, morality, and human values. The factual basis is absurd since there has been no showing that asylum applicants are a source of COVID spread. To the contrary, unnecessarily detained asylum applicants have been victims of Trump’s failed policies. Moreover, if DHS actually were worried about COVID, they could easily test and quarantine to identify and deal constructively and humanely with the few applicants who might have been infected someplace other than DHS facilities.
This is White Nationalist racism at its worst.
We need better judges, and particularly better Justices on the Supremes, for a better America! Judges who will prevent, rather than encourage, racist-driven “crimes against humanity.” Standing up against such crimes, particularly when they are disgracefully directed by a racist Executive at our most vulnerable humans, should be a “no-brainer” for a unanimous Supremes with Justices qualified for the high offices they hold. For the “JR Five” a “no brainer” has too often been a “non-starter.” So, the regime’s gross abuses of migrants and people of color and the damage, societal disorder, wasted time, squandered resources, and the human misery they cause roll on.
“Dred Scottification” is wrong! Period! And Supreme Court Justices who enable it are wrong for America!
This November, vote like your life depends on it. Because it does!
AS A business mogul in Atlantic City, Donald Trump ran casinos that teetered continually toward bankruptcy, costing gullible investors well over $1 billion. Now President Trump’s policies have bankrupted the federal government’s main agency overseeing legal immigration, U.S. Citizenship and Immigration Services, which is on the brink of imposing furloughs on thousands of its employees and is begging Congress for a bailout.
USCIS, which handles green cards for permanent legal residents, manages citizenship procedures and vets visa applicants, depends for its operating revenue almost entirely on fees from “customers,” meaning immigrants. The business model Mr. Trump’s administration devised for USCIS was a recipe for financial ruin: deplete income by driving away fee-paying applicants and pile up expenses by hiring thousands of new employees. Little wonder that after three-and-a-half years, USCIS has gone hat in hand to Congress, pleading for $1.2 billion. Without the extra funds — for an agency meant to be self-sufficient — USCIS has said more than 13,000 employees, of some 20,000 total workers, will be furloughed without pay indefinitely, starting next month.
Under Mr. Trump, USCIS has become a model of dysfunction. Perversely, that may be just fine with a White House that has been intent on deterring not only undocumented migrants but legal immigrants as well. It has done the latter largely through a matrix of policies that have made the agency much less a means by which immigrants are connected with U.S. employers and reconnected with relatives living in this country, and much more a nearly impassable obstacle course.
Well before the pandemic, applications for an array of immigrant categories plummeted as word spread that layers of new rules and vetting were driving down approval rates, and even trivial mistakes such as typos in applications would trigger rejections. In-person interviews were added as requirements for applicants who had not previously needed them, including skilled workers already in the country who needed visa extensions. Green card applications slumped in the Trump administration’s first two years and might fall further as applicants learn they would be disqualified if deemed likely to need public benefits such as subsidized housing or food stamps. The pandemic accelerated the agency’s death spiral as revenue derived from fees has dropped by half since March.
The effect of a mass furlough of USCIS staff would be to throw even more grit into the bureaucratic gears, further slowing approvals for work permits, including for high-skilled immigrants, and green cards. If the administration is intent on breaking the nation’s complex immigration machinery, which has supplied American businesses with the talent and energy of millions of employees, it is on the right path.
Employers are alarmed at the prospect of such a breakdown, with good reason. Virtually every sector of the country’s economy depends on a steady supply of immigrants, which in itself is justification for Congress to reassess USCIS’s fee-based model. Immigrants have provided the spark, drive and muscle that have driven growth and success in the United States since its founding. Given their contributions, it seems a gratuitous burden that they are also required to shoulder the cost of their admission to the country.
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The solution is actually very simple. Congress should require DHS to reprogram the necessary funds to run USCIS from the unneeded wall, unnecessary and often illegal immigration detention, and counterproductive civil deportations. All private detention contracts should be terminated and the money repurposed to USCIS. There should be a moratorium on DHS removals until USCIS is back in full operation and has eliminated all backlogs. Fee increases should be barred.
Exceptions should be made allowing deportations for those convicted of “aggravated felonies” and those whom the DHS can show by clear and convincing evidence entered the U.S. illegally after the date of enactment, following an opportunity for a full and fair hearing before a U.S. Magistrate Judge at which they will have an opportunity to apply for asylum and other protections without regard to any regulation or precedent decision issued during the Trump Administration. Appeal from any adverse decision may be had by either party to the U.S. District Judge and from there to the Court of Appeals with an opportunity to petition the Supreme Court for review. U.S. District Judges shall have the option of designating sitting U.S. Immigration Judges (but not anyone who has served a BIA Appellate Immigration Judge) with five or more years of judicial experience to serve as a “Special U.S. Magistrate Judge” to hear such immigration cases.
If Democrats can’t get a “veto proof majority” in both houses, they should just let the USCIS remain in bankruptcy until we get better Government. Like the rest of the Trump immigration kakistocracy, USCIS is a dysfunctional mess 🤮 that serves no useful purpose under current conditions.
Welfare Reform: We’ve identified the largest group of “welfare cheats” in U.S. history. Collectively, this gang of public benefits fraudsters is known as “The Trump Administration.” Its Members are worse than useless. We are actually paying them to pollute our environment, inhibit our voting, spread deadly disease, block access to health insurance, undermine scientific truth, destroy our justice system, defend Confederate statues, spread racism and hate, commit crimes against humanity, turn our nation into a despised international laughingstock, and often line their own pockets and pockets of their cronies with ill-gotten loot while doing it.
But we have it in our power to end these gross abuses of our public purse and to throw this dangerous band of indolent sponges on society off the public dole! This November, vote like your life and the future of our nation depend on it! Because they do!
WASHINGTON, DC — The American Immigration Lawyers Association (AILA) condemns the Trump administration’s recent ramp-up of efforts to turn the immigration court system into an enforcement tool rather than an independent arbiter for justice. The immigration courts are formally known as the Executive Office for Immigration Review (EOIR) and are overseen by the Department of Justice (DOJ).
AILA President Jennifer Minear, noted, “AILA has long advocated for an independent immigration court, one that ensures judges serve as neutral arbiters of justice. This administration has instead subjected the courts to political influence and exploited the inherent structural flaws of the DOJ-controlled immigration courts, which also prosecutes immigration cases at the federal level. The nail in the coffin of judicial neutrality is the fact that the administration has put the courts in the control of a new Chief Immigration Judge who has no judicial experience but served as ICE’s chief immigration prosecutor. No less concerning is DOJ’s recent choice for Chief Appellate Immigration Judge – an individual who also prosecuted immigration cases and advised the Trump White House on immigration policy. This administration continues to weaponize the immigration courts for the sole purpose of accelerating deportations rather than dispensing neutral justice. Congress must investigate these politically motivated appointments and pass legislation to create an independent, Article I immigration court.”
Among the recent actions taken by this administration to bias the immigration courts:
As a friend and former colleague said recently “I would have thought that the one thing everyone could get behind, regardless of political philosophy, would be a neutral court system.” Sadly, not so in today’s crumbling America.
There are three groups blocking the way:
The Trump Administration, where due process only applies to Trump and his corrupt cronies;
GOP legislators whose acquittal of Trump against the overwhelming weight of the evidence shows exactly what due process means to them;
Five GOP-appointed Justices on the Supremes who don’t believe that due process applies to all persons in the US, notwithstanding the “plain language” of Article 5 of our Constitution — particularly if those persons have the misfortune to be asylum seekers of color.
The end result is “Dred Scottification” — that is, dehumanization or “de-personification” of “the other.” The GOP has made it a centerpiece of their failed attempt to govern, from voter suppression, to looting the Treasury for the benefit of the rich and powerful, to immunity for law enforcement officers who kill minorities, to greenlighting cruel, inhuman,and counterproductive treatment of lawful asylum seekers and immigrants. Not surprisingly, this essentially “Whites Only” view of social justice is ripping our nation apart on many levels.
I find it highly ironic that at the same time we are rightfully removing statutes of Chief Justice Roger Taney, a racist who authored the infamous Dred Scott Decision, Chief Justice Roberts and four of his colleagues continue to “Dred Scottify” asylum seekers and other immigrants, primarily those of color, by denying them the due process, fundamental fairness, fair and impartial judges, and, perhaps most of all, racist-free policies that our Constitution demands!
Compare the “due process” afforded Trump by the GOP Senate and the pardon of a convicted civil and human rights abuser like “Racist Sheriff Joe” with the ugly and dishonest parody of due process afforded Sister Norma’s lawful asylum seekers whose “crime” was seeking fair treatment, justice, and an acknowledgement of their humanity from a nation that has turned it’s back on those values.
What Sister Norma’s article did not mention is that those who survive in Mexico long enough to get to “court” have their asylum claims denied at a rate of about 99% by an unfair system intentionally skewed and biased against them. Most experts believe that many, probably a majority, of those being denied actually merit protection under a fair and impartial application of our laws.
But, as pointed out by AILA, that’s not why Billy the Bigot has appointed prosecutors as top “judges” and notorious asylum deniers as “appellate judges.” He intends to perpetuate a highly unfair “deportation railroad” designed by infamous White Nationalist racist Stephen Miller. In other words, our justice system is being weaponized in support of an overtly racist agenda formulated by a racist regime that has made racism the centerpiece of its pitch for remaining in office. Incredible! Yet true!
The Supremes have life tenure. But, the other two branches of our failing Government don’t. And, a better Executive and a better Legislature that believe in our Constitution and equal justice for all is a necessary start on a better Federal Judiciary — one where commitment to due process, fundamental fairness, and equal justice for all is a threshold requirement for future judicial appointments.Time to throw the “non-believers” and their enablers out of office.
This November, vote like your life and our country’s existence depend on it! Because they do!
