BLOWING THE BASICS: THE CONTINUING UGLINESS OF THE BIA’S FAILURE OF LEGAL EXPERTISE, JUDICIAL INDEPENDENCE, AND DECISIONAL INTEGRITY IS A “LICENSE TO KILL” MOST VULNERABLE AMONG US  ☠️⚰️😰👎 —  3rd Cir. Says BIA Gets PSG Test Wrong, Fails To Apply Binding CAT Precedent, Distorts Facts to Engineer Wrongful Denial of Protection – “[W]e are troubled by the BIA’s apparent distortion of evidence favorable to Guzman in this case.” – Guzman Orellana v. Attorney General***

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

Dan Kowakski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-asylum-social-group-el-salvador-guzman-orellana-v-barr

 

CA3 on Asylum, Social Group, El Salvador: Guzman Orellana v. Barr

Guzman Orellana v. Barr

“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”

[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]

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

*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.

Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.

Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!

This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.

Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?

Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.

More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get?  Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!

The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.

Due Process Forever! Captive Courts & Complicit Judges, Never!

PWS

04-18-20

 

 

 

BLOWING THE BASICS: 4th Cir. Says BIA Got Nexus & Political Opinion Wrong in Guatemalan Asylum Case — Lopez-Ordonez v. Barr — The Facts Were Compelling, But The BIA Worked Hard to Wrongfully Deny Protection!

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

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-;-nexus-political-opinion-guatemala-lopez-ordonez-v-barr

CA4 on Asylum, Nexus, Political Opinion, Guatemala: Lopez Ordonez v. Barr

Lopez Ordonez v. Barr

“Hector Daniel Lopez Ordonez was conscripted into the Guatemalan military when he was 15 years old. As part of the G-2 intelligence unit, Lopez Ordonez was ordered— and repeatedly refused—to torture and kill people. After a particularly horrific incident in which Lopez Ordonez refused to murder a five-month-old baby and threatened to report the G-2’s abuses to human rights organizations, the G-2 confined him to a hole in the ground for ten months. Upon his release, he fled to the United States. Lopez Ordonez now petitions this Court to review an order from the Board of Immigration Appeals (“BIA”) denying his asylum application and ordering his removal to Guatemala. The BIA determined that Lopez Ordonez did not meet the nexus requirement to establish his eligibility for asylum—that is, he did not show past persecution on account of a statutorily protected ground. The record in this case, however, compels us to conclude that Lopez Ordonez has demonstrated that one central reason for his persecution by the Guatemalan military was his political opinion, a protected ground under the Immigration and Nationality Act (“INA”). Accordingly, we vacate the BIA’s nexus determination and remand for further proceedings.”

[Hats off to Samuel B. Hartzell!]

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Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.”

Beneath the smokescreens of the uncontrolled backlog and gross mismanagement at EOIR lies an uglier truth. The BIA is a politically motivated tool of the Trump regime that puts reaching preconceived denials of protection ahead of Due Process and the fair application of asylum law. 

This case should have been an easy grant, probably a precedent. By requiring the DHS, the Asylum Office, and Immigration Judges to follow a properly fair and generous interpretation of asylum law that would achieve its overriding purpose of protection, an intellectually honest BIA with actual legal expertise in applying asylum laws would force an end to the racially-driven intentional perversion of asylum laws and Due Process by the Trump regime. 

More cases granted at a lower level would discourage the largely frivolous attempts to deny asylum engaged in by the DHS here. It would reduce the backlog by returning asylum and other protection grants to the more appropriate 60%+ levels they were at before first the Obama Administration and now the Trump regime twisted the laws and employed various coercive methods to encourage improper denials to “deter” legitimate refugees from Central America and elsewhere from seeking protection. 

With fair access to legal counsel, many more asylum cases could be well-documented and granted either by the USCIS Asylum Office (without going to Immigration Court) or in “short hearings” using party stipulations.  The ability to project with consistency favorable outcomes allows and encourages ICE Assistant Chief Counsel to be more selective in the cases that they choose to fully litigate. That encourages the use of stipulations, pre-trial agreements, and prosecutorial discretion that allows almost all other courts in America, save for Immigration Courts, to control dockets without stomping on individual rights.

It would also force all Administrations to establish robust, realistic refugee programs for screening individuals nearer to the Northern Triangle to obviate the need for the journey to the Southern border. Additionally, compliance with the law would pressure our Government to work with the international community to solve the issues causing the refugee flow at their roots, in the refugee-sending countries, rather than misusing the U.S. legal system and abusing civil detention as “deterrents.”

Due Process Forever! Captive “Courts” Never!

PWS

04-18-20 

US EXPORTS CORONAVIRUS TO GUATEMALA — Trump Regime Doubles Down on Failed Deportation Policies With Predictably Deadly Results!

Patrick J. McDonnell
Patrick J. McDonnell
Mexico City Bureau Chief
LA Times
Molly O’Toole
Molly O’Toole
Immigration Reporter
LA Times
Cindy Carcamo
Cindy Carcamo
Immigration Reporter
LA Times

 

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=b6dd1a0e-d915-4eca-b571-2200996d1e04&v=sdk

Patrick J. McDonnell, Molly O’Toole and Cindy Carcamo report for the LA Times:

MEXICO CITY — More than half the deportees flown back to Guatemala by U.S. immigration authorities have tested positive for coronavirus, the top Guatemalan health official said Tuesday.

Speaking to reporters in Guatemala City, Hugo Monroy, the minister of health, did not specify a time frame or the total number of deportees who had arrived home with infections.

But hundreds of Guatemalans have been returned in recent weeks, including 182 who arrived Monday on two flights from Texas.

Monroy said that on one flight — which he declined to identify — more than 75% of the deportees tested positive.

But he made clear this was not an isolated incident and said many deportees arrived with fevers and coughs and were immediately tested.

“We’re not just talking about one flight,” he said. “We’re talking about all the flights.”

In video later released by the government, Monroy contradicted his earlier statements and said he was referring to just one flight.

The Guatemalan Foreign Ministry said through a spokesman Tuesday that the “official” number of deportees diagnosed with COVID-19 is four, including one who arrived on one of the flights Monday.

A high number of infections among deportees would cast doubt on the official tally of how many of the more than 33,000 migrants in U.S. detention are infected. U.S. immigration officials have said that 77 have tested positive, noting that some of those may no longer be in custody.

The U.S. Department of Homeland Security did not respond to requests for comment.

. . . .

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

Read the rest of the article at the link.

For four decades, the U.S. has been deporting its problems to the poorest and most unstable countries in Central America. Gangs such as MS-13 and the 18th Street Gang actually originated in Los Angeles and were “exported” to Central America. Once there, they flourished, grew more powerful, became “de facto governments” in some areas, and instituted a reign of terror and persecution that sent hundreds of thousands of new refugees fleeing north to the United States over the years.

Now, Trump and his cronies once again believe that often illegal and irresponsible deportations to the Northern Triangle countries will allow us to escape accountability. But, it won’t. 

Irresponsibly spreading disease in poor countries where public health services are dismal at best will eventually have consequences throughout the Americas. And, we will not be immune from the long-term effects of empowering the Trump kakistocracy and its White Nationalist cronies. What goes around come around. Neither wealth nor arrogant ignorance will save us from paying a price for our lack of concern for humanity.

Due Process Forever! Malicious Incompetence Never!

PWS

04-15-20   

INSPIRING NEWS FROM THE NDPA: LATEST FIFTH CIRCUIT DECISION SHOWS WHY TODAY’S BIA NOT ENTITLED TO “DEFERENCE” AS AN “EXPERT TRIBUNAL” — Read Professor Geoffrey Hoffman’s Outstanding Analysis of Latest Rap on BIA’s Skewed Jurisprudence — Inestroza-Antonelli v. Barr — @ ImmigrationProf Blog

nhttps://lawprofessors.typepad.com/immigration/2020/04/geoffrey-hoffman-a-stunning-fifth-circuit-asylum-decision-an-analysis-of-inestroza-antonelli-v-barr.html

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Geoffrey writeS in ImmigrationProf Blog.

pastedGraphic.png

A Stunning Fifth Circuit Asylum Decision: An Analysis of Inestroza-Antonelli v. Barr  by Geoffrey Hoffman, Clinical Professor, University of Houston Law Center

I was moved this morning to write about a recent decision from the Fifth Circuit. This is an insightful and sensitive decision from the 2-person panel’s majority, Judges Dennis and King, with Judge Jones dissenting. The April 9th decision is Inestroza-Antonelli v. Barr.

In the very first paragraph, the essence of the decision is announced: “Without addressing the coup, the BIA found that any change in gender based violence was incremental or incidental and not material. Because this conclusion is not supported by the record, we grant the petition and remand.” Id. at 1.

Procedurally, the case involved an in absentia order of removal from 2005. In 2017, the petitioner moved to reopen proceedings outside the 90-day deadline for such motions based on a change in country conditions in Honduras. The petitioner argued that in Honduras since the time of her original removal order there had been “a 263.4 percent increase in violence against women since 2005.” She submitted a trove of documents to support her motion. The Immigration Judge, and Board on appeal denied her motion to reopen.

As recounted in the panel’s decision, there had been a military coup in Honduras in 2009. Specifically, there were several principal changes in the country as a result: “(1) the Gender Unit of the Honduran National Police, established between 2004 and 2005, has been restricted in its operations, and access to the Unit is now limited or nonexistent; (2) the power of the Municipal Offices for Women to address domestic violence has been severely diluted, and officials have been removed from their positions for responding to women’s needs, especially those related to domestic violence; (3) institutional actors have targeted women for violence, including sexual violence, and threatened the legal status of over 5,000 nongovernmental women’s, feminist, and human rights organizations that have opposed the post-coup government’s policies; (4) the rate of homicides of women more than doubled in the year after the coup and has continued to steadily increase, ultimately becoming the second highest cause of death for women of reproductive age; and (5) in 2014, the status of the National Institute for Women was downgraded and other resources for female victims of violence were eliminated….”

The crux of the Immigration Judge’s decision in denying her motion to reopen was that the violence suffered by women in Honduras is an “ongoing problem” and the increase allegedly did not represent a “change in country conditions.” The Board, in its decision, did not even mention the coup, finding instead that the IJ had not  clearly erred” because the evidence reflected only an “incremental or incidental,” rather than a “material” change in country conditions.

I would like to point out several noteworthy and instructive aspects of this excellent decision.

First, in analyzing her claim, the Fifth Circuit’s majority noted, as is usual, that the government had introduced “no conflicting evidence.” Indeed, they did not introduce any evidence of country conditions in Honduras at all. Instead, on appeal they “cherry-pick[ed]” excerpts from the evidence introduced by the petitioner. Most typically, the relied on a 2014 Department of State report describing the availability of “domestic violence shelters and municipal women’s offices.”

This first point is important because it accurately describes what is typical of these asylum proceedings. The government often relies on little beyond the State report, and introduces no other evidence of its own. The result sometimes leads to tortured arguments on appeal, nitpicking before the Board, or unfair conclusions before the immigration judge.

It is frustrating sometimes when we litigate these cases and we see parties attempt to shoehorn their conclusions into preconceived molds. This selective reasoning should be called out more often. Many times when confronted with a record that contains a treasure trove of material that is largely favorable to the immigrant, the government is at a loss about how to respond on appeal. Instead of agreeing to a remand, they are faced with defending a sparse record with support for their position. As such, they have to (assuming they do not agree to a remand) cull through the record to find anything to shore up the precarious reasoning in the administrative decisions below.

Second, the majority rejects reliance on a prior case where a petitioner had not presented sufficient evidence of changed country conditions. As astutely pointed out by the majority, it makes no sense to hold that the current petitioner is unable to meet her evidentiary burden merely because a prior petitioner had failed to do so. In the words of the majority, “to hold that Inestroza-Antonelli is precluded from proving that conditions changed as a factual matter during this period simply because a previous petitioner failed to do so would violate the ‘basic premise of preclusion’—i.e., ‘that parties to a prior action are bound and nonparties are not bound.’ Id. at 7 (citing 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4449 (3d ed. 2019)). It is refreshing to see a panel rely on the famous federal practice and procedure treatise.

Third, the decision does a wonderful job of elucidating the “substantial evidence” standard, which is used so often against the immigrant-petitioner. Here, the majority explains that this standard does not mean that the Court of Appeals reviews the BIA decision to determine whether “there theoretically could have been some unevidenced occurrence that would make its findings correct.” Id. at 5 (emphasis added). Instead, the “substantial evidence” standard just means what it says: whether a party has produced substantial evidence in support of their position. Here, the government – as noted – provided no evidence against the petitioner’s position. In fact, the record “compels” the conclusion that conditions have “significantly changed,” according to the majority.

Fourth, the decision takes to task the BIA’s lack of analysis in its decision, specifically the failure on the part of the agency even to mention the “coup” in Honduras. Instead, there was nothing but a conclusory statement that the Board had “considered [the petitioner’s] arguments.” We have seen, for example, other courts of appeals such as the Seventh Circuit, take to task the BIA in recent months. See Baez-Sanchez v. Barr (7th Cir. 2020) (Easterbrook, J.) .  It is a very good sign that circuit courts are making searching inquiries, demanding compliance from the Board and EOIR, and not engaging in mere cursory review.

There was a frustration shown in that, as they noted, the Board evidenced a “complete failure” to address the “uncontroverted evidence” of a clear significant “turning point” in Honduras’ history. The majority characterized this failure as an abuse of discretion by the BIA. On a separate point concerning the Board’s rejection of an argument about her abusive husband’s return to Honduras in 2009, as a changed in country conditions, the majority stopped short of calling that argument’s rejection an “abuse of discretion.” In a footnote, the majority noted several sister circuits that agreed that such a change should be characterized as a change in “personal circumstances.”

The most notable thing about the panel’s 2-1 decision besides its well thought-out reasoning is the lack of any discussion involving Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018), anywhere in either the majority’s or dissent’s decisions. Arguably, A-B- is related and has been used (routinely) by the government to argue against relief for women who are similarly situated. Because this case turned on a denial of a motion to reopen in 2017, and there was no Attorney General’s decision until 2018, there was no occasion for the IJ and, later, the BIA rely on the AG’s A-B- decision. To the extent that AG Sessions in A-B- did not rule out all gender-based violence claims, the more important take away here is this: Matter of A-B- can be overcome and is no prohibition on relief, despite what a number of judges and BIA members may believe, so long as the petitioner can produce substantial evidence in support of his or her claims, as the petitioner did so well here. (Note, since this decision relates to a motion to reopen, the case will now be remanded to the BIA and IJ and the petitioner’s fight will continue on remand.)

Judge Edith Jones in her dissent, while never relying outright on A-B-, still takes affront at the perceived failure to “defer” to the BIA. In a telling passage, she states: “The majority has failed to defer to the BIA, which, hearing no doubt hundreds (or thousands) of cases from Honduras, must be far more familiar with country conditions than judges working from our isolated perch . . . . .” This is a scary position. While it is true the BIA has heard thousands of cases from Honduras, this cannot and should not form the basis for any rationale to blindly “defer” to the Board.

This type of deference and the attempted “rubber-stamping” that it engenders was exactly what Justice Kennedy warned about in his short but biting concurrence in Pereira v. Sessions. To quote Justice Kennedy, the “type of reflexive deference exhibited in some of these cases is troubling…it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018), Kennedy, J., concurring (emphasis added). Justice Kennedy was right. The dissent’s transparent and clearly forthright encapsulation of the arguments in favor of “deference” highlights the dangers inherent in such a position and shows just why Chevron must (and will) be reconsidered.

Geoffrey Hoffman, Clinical Professor, University of Houston Law Center, Immigration Clinic Director

(Individual capacity; Institution for identification only)

KJ

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

Judge Jones’s dissent ignores the clear evidence that the BIA is no longer anything approaching an “expert tribunal,” and that it’s jurisprudence has swung sharply in an anti-immigrant, and specifically anti-asylum, direction under Sessions, Whitaker, and Barr.

How long can the Article IIIs keep “papering over” not only the all too often deficient work-product produced by today’s BIA, but, more significantly, the glaring unconstitutionality of a system constructed and run by prosecutors and politicos that purports to function like a “court.” I doubt that Judge Jones would be willing to trust her life to a “court” that was composed and run like EOIR. So, why aren’t other “persons” entitled to the same Constitutional treatment and human dignity that she would expect if their positions were reversed?

In the meantime, I wholeheartedly endorse Geoffrey’s observation that even in the “Age of A-B-,” and in the normally “asylum-unfriendly” Fifth Circuit, great scholarship, persistence, and good lawyering can save lives! We just need more “good lawyers” out there in th NDPA to keep pressing the fight until all of the Article III’s stop “going along to get along” with the charade currently unfolding at EOIR and we also get the “regime change” necessary to establish an Article I Immigration Court that functions like a “real court” rather than a surreal vision of a court. 

Due Process Forever!

PWS

04-13-20

RISKING LIVES TO KEEP THE DEPORTATION RAILWAY RUNNING — FOR UNACCOMPANIED KIDS! — “It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense.” — Julia Preston Reports For The Marshall Project

Julia Preston
Julia Preston
American Journalist
The Marshall Project
Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)

https://www.themarshallproject.org/2020/04/10/migrant-children-still-face-speedy-deportation-hearings-in-covid19-hotspots

Julia writes:

They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.

In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.

This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.

Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.

The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.

That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.

Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.

“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.

On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.

Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.

. . . .

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Read the rest of Julia’s report at the link. 

The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.

First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.

Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.

Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries. 

Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation. 

Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.

The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this. 

Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.

Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.

All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.

And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”

Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”

Due Process Forever! Trump’s Child Abuse Never!

PWS

04-10-20

PROFESSOR BILL ONG HING @ IMMIGRATIONPROF BLOG: Intentional Mistreatment of Central American Refugees: A Grim American Tradition Now Unrestrained Under Trump Regime’s White Nationalist, Racist Policies & Supreme’s Complicity!

Professor Bill Ong HIng
Professor Bill Ong Hing
U of San Francisco Law

https://lawprofessors.typepad.com/immigration/2020/04/mistreating-central-american-refugees-repeating-history-in-response-to-humanitarian-challenges.html

Here’s an abstract:

Friends,

Happy to share my new article Mistreating Central American Refugees: Repeating History in Response to Humanitarian Challenge (forthcoming Hastings Race and Poverty Law Journal).  The full article can be downloaded here.

Abstract:

In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.

Unfortunately, the lessons of the 1980s have been forgotten, or intentionally neglected. Beginning in 2014, once again large numbers of Central American asylum seekers—including women and children—are being detained. Asylum denial rates for migrants fleeing extreme violence are high. The mixed refugee flow continues to be mischaracterized as an illegal immigration problem. Many of the tactics used in the 1980s are the same today, including hampering the ability to obtain counsel. President Trump has taken the cruelty to the next level, by invoking claims of national security in attempting to shut down asylum by forcing applicants to remain in Mexico or apply for asylum in a third country. We should remember the lessons of the past. Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. We should be implementing policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.

Full article here.

Everyone stay safe and sane.

bh

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Get the full article at the link.

Professor Hing’s article echoes one of the themes of some of my speeches and comments, although, of course, he approaches it in a much more scholarly and systematic manner.

Check out my speech here:

“JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

https://immigrationcourtside.com/2020/03/24/our-implementation-of-asylum-law-has-always-been-flawed-now-trump-has-simply-abrogated-the-refugee-act-of-1980-without-legislation-but-led-by-the-complicit-supremes-federal-app/

Due Process Forever!

PWS

04-08-20

FINDING OPPORTUNITY IN CRISIS: Trump Regime Uses Health Emergency To Up Child Abuse — Ignores Law, Orbits Kids To Harm’s Way Without Due Process As Feckless Dems Protest!

Hamed Aleaziz
Hamed Aleaziz
Immigration Reporter
BuzzFeed News

https://www.buzzfeednews.com/article/hamedaleaziz/coronavirus-unaccompanied-minors-deported

Hamed Aleaziz reports for BuzzFeed News:

In a major departure from previous practice mandated by federal law, the Trump administration has begun quickly deporting immigrant children apprehended alone at the southern border.

Administration officials say they are following public health orders designed to prevent the spread of the coronavirus in the US, but opponents say they are using the health orders to skirt federal laws that govern the processing of unaccompanied minors.

The New York Times first reported that the Trump administration would apply to unaccompanied children from Central America a March 20 order issued by the Centers for Disease Control and Prevention (CDC) that bars the entry of those who cross into the country without authorization.

Previously, unaccompanied children from Central America picked up by Border Patrol agents would be sent to the Office of Refugee Resettlement (ORR), where they would be housed in shelters across the country as they began officially applying for asylum and waited to be reunited with family members in the US.

On Monday, a US Customs and Border Protection official confirmed to BuzzFeed News that the agency was now applying the CDC order to children.

“All aliens CBP encounters may be subject to the CDC’s Order Suspending Introduction Of Persons From A Country Where A Communicable Disease Exists (March 20, 2020), including minors,” read a statement from CBP. “When minors are encountered without adult family members, CBP works closely with their home countries to transfer them to the custody of government officials and reunite them with their families quickly and safely, if possible.”

The statement noted that there is discretion for the agency to exclude certain unaccompanied children from the order if, for example, they show signs of illness.

Immigrant advocates told BuzzFeed News they were alarmed at the policy shift.

“Children arriving at the border, many of whom have endured unimaginable harm at home and on their journey, are the most vulnerable group encountered by border officials. Unaccompanied children are particularly vulnerable to trafficking,” said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council. “The answer to coronavirus cannot be to put children in harm’s way.”

Eleanor Acer, the refugee protection director at Human Rights First, said the move was proof that the Trump administration was “using” a public health crisis “to advance their long-standing goal of overturning US laws protecting vulnerable children and people seeking asylum.”

. . . .

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

Read the rest of the article at the link.

Like all fascists, the White Nationalist nativists of the regime are always looking for new ways to pick on the most needy and vulnerable. And, what presents a better target for cruelty and abuse than unaccompanied kids, particularly when a health emergency offers “cover?”

The Dems sputter but can’t do anything except write letters that go in the regime’s waste baskets.

PWS

O3-30-20

THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!

Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)

She was a Leader of the NDPA before there was an NDPA! Now Michelle Mendez and her CLINIC Team are giving you “the skinny” on how to combat EOIR’s “Raging War on Due Process!”

Friends,

 

Wanted to share with you two new CLINIC resources:

 

Practice Pointer: Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)

 

FOIA Disclosures on In Absentia Removal Numbers Based on Legal Representation

 

An immigration judge may issue an in absentia removal order if the Department of Homeland Security, or DHS, establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing. As documented in the report Denied a Day in Court: The Government’s Use of in absentia Removal Orders Against Families Seeking Asylum, CLINIC learned about these reasons firsthand while representing 46 families released from detention and successfully challenging their in absentia removal orders. Perhaps the main factor for failing to appear at scheduled hearings in immigration court is the presence or absence of legal counsel to orient the respondent through the layers of government bureaucracy and the complex immigration system.

 

On November 18, 2019, CLINIC submitted a Freedom of Information Act, or FOIA, request to the Executive Office for Immigration Review, or EOIR, seeking data on the number of in absentia removal orders issued based on legal representation status. CLINIC requested three sets of in absentia order data: the total number of in absentia removal orders issued since 2008, the number of in absentia orders issued to Unaccompanied Children, or UACs, since 2008, and the number of in absentia orders issued to families classified by EOIR as “Family Unit,” FAMU, cases since November 16, 2018. On March 13, 2020, EOIR responded with a three-tab Excel spreadsheet of raw in absentia removal order data. CLINIC has calculated the in absentia removal order raw data into percentages.

 

Here are some key takeaways from the data:

  • Although, according to EOIR statistics, the current overall representation rate is 65 percent for all pending cases, those who are unable to secure representation are at extraordinary risk of receiving in absentia removal orders. 92.6 percent of those with in absentia orders issued in fiscal year, or FY, 2020 were unrepresented.
  • Although, according to EOIR statistics, the current overall representation rate is 68 percent for all UAC pending cases, UACs who are unable to secure representation are also at extreme risk of receiving in absentia removal orders. 88 percent of those with in absentia orders issued in fiscal year FY2020 were unrepresented.
  • Since 2008, the percentage of unrepresented respondents with in absentia removal orders has been at least double that of in absentia orders of removal issued to represented respondents.
  • Since 2008, at least 70.8 percent of UACs who were issued in absentia orders of removal were unrepresented and, so far this fiscal year, the unrepresented rate for UACs who received in absentia orders of removal has been the highest ever, at 88 percent.
  • The number of in absentia removal orders issued by EOIR to unrepresented respondents in FY2020 surpassed the total number of in absentia orders issued to unrepresented respondents in FY2019 in just the first five and a half months of FY2020.
  • EOIR has issued more in absentia removal orders in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.
    • Total in absentia removal orders from FY2008 through FY2016 were 246,893. Total in absentia removal orders from FY2017 through FY2020 (through March 13, 2020), were 267,696
  • EOIR has issued more in absentia removal orders to UACs in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.
    • Total in absentia orders of removal issued to UACs from FY2008 through FY2016 were 20,123. Total in absentia removal orders issued to UACs from FY2017 through FY2020 (through March 13, 2020), were 26,228.
  • During the date range covered by the data (FY2008 through FY2020 Q2), immigration judges issued the fewest number of in absentia removal orders in FY2012, the year that DHS announced DACA. During FY2012, DHS officially launched the prosecutorial discretion program in November 2011 and reviewed many pending removal proceedings to identify low-priority cases meriting favorable exercises of prosecutorial discretion.
    • Most immigration courts saw a decrease in in absentia orders of removal for unrepresented noncitizens in FY2012 compared to FY2011.
  • Unrepresented UACs suffered a huge jump of in absentia removal orders from FY2014 (1,701) to FY2015 (5,836). This hike in in absentias for UACs occurred concurrently with the increase in UACs fleeing El Salvador, Guatemala and Honduras, and arriving in neighboring countries and at the U.S.-Mexico border.
  • 89.6 percent of all family units who received an in absentia removal orders from November 16, 2018 to September 30, 2019, were unrepresented.
    • Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in unrepresented FAMU cases during this period: 4,108 (which translates into 93.8 percent of the total in absentia removal orders issued by this court).
    • Of all the immigration courts, the Miami Immigration Court issued the second most in absentia removal orders in unrepresented FAMU cases during this period: 3,347 (which translates into 89.5 percent of the total in absentia removal orders issued by this court).
  • 94.2 percent of all family units who received in absentia removal orders from October 1, 2019 to March 13, 2020, were unrepresented.
    • Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,931 (which translates into 95.62 percent of the total in absentia removal orders issued by this court).
    • Of all the immigration courts, the Atlanta Immigration Court issued the second most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,662 (which translates into 98.27 percent of the total in absentia removal orders issued by this court).
  • Oddly, several immigration courts that oversee only detained dockets, including the Elizabeth Detention Center, recorded in absentia removal orders during the FOIA time period.
  • In FY2020, immigration judges have issued more in absentia removal orders than any prior year since 2008, and we are only five and a half months into the federal fiscal year.
    • Of all the immigration courts, the Harlingen Immigration Court has recorded the most unrepresented in absentia removal orders overall in FY2020 so far: 8,357.
    • Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders overall in FY2020: 753.
    • Of all the immigration courts, the Miami Immigration Court has recorded the most unrepresented in absentia removal orders for UACs in FY2020: 430.
    • Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders for UACs in FY2020: 73.

 

Thanks for helping us share these!

 

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.

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

Now, it’s hardly “news” that there is a strong positive correlation between legal representation and appearance in Immigration Court. That information came to light way back in the Obama Administration and has consistently been reinforced by data that contradicts the lies about failures to appear put out on a regular basis by regime officials. 

Given the clear correlation, the best way to make a fair due process system function would be if the Government worked hand in hand with NGOs, charitable organizations, local bar associations, and others involved in providing pro bono representation to insure that at least all asylum applicants and children are represented before the Immigration Courts. Due Process and fundamental fairness would be served and the in absentia rate would crater. In other words, due process with efficiency, an achievable “win-win!”

Instead, the Trump regime, through both EOIR and DHS, has made a concerted attack on the right to counsel in a transparent attempt to increase the number of in absentia orders and “speed up the deportation railroad” that EOIR now runs as its “one and only mission.”

How does something masquerading as a “court” system conduct a “deportation railway?” It takes lots of complicity and supposedly responsible public officials and citizens intentionally “looking the other way” and studiously ignoring the obvious!

I hope that advocates will be able to use the data provided by CLINIC to expose to the Article III Courts and Congress the rampant fraud, waste, abuse, and just plain “malicious incompetence” of EOIR and DHS (is there really a difference these days? Not apparent to most of us who follow the “Star Chambers” with regularity.). 

Remember, moral cowardice and intellectual dishonesty often begin with picking on the most vulnerable and defenseless among us. And what follows is likely to be unspeakably bad, based on history!

Thanks, Michelle, my friend, for all you and CLINIC do.

Due Process Forever!

PWS

03-29-20

TWILIGHT ZONE: ABSURDITY, CRUELTY, INJUSTICE ARE THE ORDERS OF THE DAY IN “AMERICA’S STAR CHAMBERS” (A/K/A IMMIGRATION “COURTS’)  — Podcaster Sam Graber Takes You Inside The Mind Numbing Reality Of A “Third-World Court System” Operating Right Under Our Noses!

Sam Graber
Sam Graber
Podcaster
American Refugee

Listen to Sam on “American Refugee” here:

In the days leading up to the coronavirus shutdown I journeyed into a shadow part of our justice system, a courtroom rarely seen by the public.

Detained immigration court is a place where lawyers aren’t provided for the defense, where judges and prosecutors are on the same team, where guilty is presumed and the all-too-often verdict a different kind of death.

Who are these immigration judges? What exactly is detained court? And how is it able to get away with operating outside of what we might call normal law?

Get ready because you’re about to go there, to see the injustice that isn’t being shut down.

This is American Refugee.

Written, Engineered & Produced: Sam Graber
Music: Rare Medium, Punk Funk Metropolis, New Sound Underground
Recorded: Minneapolis, MN
Original Release: March 2020

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

Disturbing and infuriating as Sam’s podcast is, I urge everyone to listen, even if you think you know what “really happens” in this godforsaken and deadly “darkest corner of the American ‘justice’ system.” Is this really the way we want to be remembered by generations that follow? As a country with so little collective courage and integrity that we allowed our fellow human beings to be treated this way? Think about it!

Even in this grimmest of worlds, their are true heroes. First and foremost, of course, are  the dedicated attorneys of the New Due Process Army (“NDPA”), many working pro bono or “low bono” to vindicate essential legal, constitutional, and human rights in a system designed to grind them into dust and “dehumanize and demonize the other.” 

Sound familiar? It should to anyone who studied Hitler’s rise to power in Germany. By and large, it wasn’t the “Brown Shirts” and the party faithful who enabled his rule. It was judges, lawyers, ministers, priests, businessmen, doctors, corporate moguls, and the average German who “facilitated” his annihilation of millions. 

And, it started gradually, with laws stripping Jews of citizenship, property, and all legal rights and judges who enthusiastically enforced them, even against their own former judicial colleagues. Once people aren’t “humans” any more (Hitler liked the term “subhumans”) or “persons” before the law, there is no limit to what can be done, particularly when complicit judges join in the “fun and games.”

Among the other heroes are two Courtside regulars:” Round Table Member Judge (Ret.) Ilyce Shugall and NAIJ President Judge A. Ashley Tabaddor. 

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

At a time when too many with knowledge of the travesty of what’s going on in our “Star Chambers” have chosen to look the other way or “go along to get along,” Ilyce and Ashley have consistently “spoken truth to power” in the face of a regime that often abuses its authority by punishing truth, honesty, and decency. Indeed, Billy Barr’s highly unethical move to “decertify” the NAIJ is a blatant attempt to punish and silence Ashley for revealing the truth.

One minor correction. Sam says that the Immigration Judges and the prosecutors both work for the DOJ. Actually, the prosecutors work for DHS. But, it’s largely a “distinction without difference” because the agenda at both DOJ and DHS is set by Trump, Miller, and the rest of the White Nationalist nativist cabal.

Indeed, former AG Sessions told Immigration Judges they were “partners” with the DHS prosecutors in enforcing immigration laws. So, the observation that in many Immigration Courtrooms migrants, including the unrepresented and children, face “two prosecutors” — the “judge” and the DHS Assistant Chief Counsel is accurate. The podcast relates how in some courts the “judge speaks for the prosecution,” the Assistant Chief Counsel is a “potted plant,” and nobody speaks for justice or the rights of the migrants. What’s missing: The impartial “neutral decisionmaker” required by the Due Process Clause of the Fifth Amendment to the Constitution.

Thanks Ashley and Ilyce for all you do! You are true superstars!

As my friend, Professor Ayo Gansallo says on her e-mail profile:

Vote like your rights depend upon it!

“A country is not only what it does…it is also what it tolerates.”

Kurt Tucholsky

Due Process Forever! Star Chambers Never!

PWS

03-29-20

DUE PROCESS WINS IN THE WEST: Split 9th Cir. Slams DOJ’s Vile/Unethical “No Due Process Due” Argument — Orders Bond Hearings For Asylum Applicants Who Passed Credible Fear — Padilla v. ICE — Round Table Amicus Brief Helps Save Due Process!

Padilla v. ICE

Padilla v. ICE, 9th Cir., 03-27-20, published

SUMMARY BY COURT STAFF:

SUMMARY* Immigration

Affirming in part, and vacating and remanding in part, the district court’s preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained and found to have a credible fear of persecution, the panel affirmed the injunction insofar as it concluded that plaintiffs have a due process right to bond hearings, but remanded for further findings and reconsideration with respect to the particular process due to plaintiffs.

The district court certified a nationwide class of all detained asylum seekers who were subject to expedited removal proceedings, were found to have a credible fear of persecution, but were not provided a bond hearing with a record of hearing within seven days of requesting a hearing. Part A of the district court’s modified preliminary injunction provided: 1) bond hearings must take place within seven days of a class member’s request, or the member must be released; 2) the burden of proof is on the government to show why the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

    

4 PADILLA V. ICE

member should not be released; and 3) the government must produce recordings or verbatim transcripts of the hearings, as well as written decisions. Part B concluded that the class is constitutionally entitled to bond hearings. A motions panel of this court previously denied the government’s request to stay Part B, but granted the stay as to Part A.

The panel concluded that the district court did not abuse its discretion in concluding that plaintiffs were likely to prevail on their due process claim, explaining that immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint. The panel also concluded that the district court did not abuse its discretion in finding that other processes—seeking parole from detention or filing habeas petitions—were insufficient to satisfy due process. The panel further rejected the government’s suggestion that noncitizens lack any rights under the Due Process Clause, observing the general rule that once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.

The panel next concluded that the district court did not abuse its discretion in its irreparable harm analysis, noting substandard physical conditions and medical care in detention, lack of access to attorneys and evidence, separation from family, and re-traumatization. The panel also concluded that the district court did not abuse its discretion in finding that the balance of the equities and public interest favors plaintiffs, explaining that the district court weighed: 1) plaintiffs’ deprivation of a fundamental constitutional right and its attendant harms; 2) the fact that it is always in the public interest to prevent constitutional violations; and 3) the

 

PADILLA V. ICE 5

government’s interest in the efficient administration of immigration law.

As to Part A of the injunction, the panel concluded that the record was insufficient to support the requirement of hearings within seven days, and that the district court made insufficient findings as to the burdens that Part A may impose on immigration courts. The panel also noted that the number of individuals in expedited removal proceedings may have dramatically increased since the entry of the injunction. Thus, the panel remanded to the district court for further factual development of the preliminary injunction factors as to Part A.

The panel also rejected the government’s argument that the district court lacked authority to grant injunction relief under 8 U.S.C. § 1252(f)(1), which provides: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Examining the relevant precedent, statutory scheme, and legislative history, the panel concluded that here, where the class is composed of individual noncitizens, each of whom is in removal proceedings and facing an immediate violation of their rights, and where the district court has jurisdiction over each individual member of that class, classwide injunctive relief is consistent with congressional intent.

Finally, the panel concluded that the district court did not abuse its discretion in granting the injunction as to the nationwide class. However, the panel directed that, on

 

6 PADILLA V. ICE

remand, the district court must also revisit the nationwide scope.

Dissenting, Judge Bade wrote that 8 U.S.C. § 1252(f)(1) barred injunctive relief in this case, concluding that the majority’s opinion does not square with the plain text of § 1252(f)(1), is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split with the Sixth Circuit. Judge Bade further wrote that, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the constitution demands. Judge Bade would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief.

PANEL: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.

OPNION BY: Chief Judge Sydney R. Thomas

DISSENTING OPINION: Judge Bridget S. Bade

KEY QUOTE FROM MAJORITY OPINION:

The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345 U.S. 206, 208–09, 213–15 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter ashore ‘shall not be considered a landing’”); Leng May Ma v. Barber, 357 U.S. 185 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee”); Kaplan v. Tod, 267 U.S. 228 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line”).

Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212 (“[A]liens who have once passed

PADILLA V. ICE 25

through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Leng May Ma, 357 U.S. at 187 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance . . . additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’” (quoting Mezei, 345 U.S. at 212)); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry fiction is best seen . . .as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away” because “[o]therwise, the doctrine would allow any number of abuses to be deemed constitutionally permissible merely by labelling certain ‘persons’ as non-persons”). We thus conclude that the district court did not err in holding that plaintiffs are “persons” protected by the Due Process Clause.

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

First, and foremost, let’s give a big vote of appreciation to the All-Star Team at Wilmer Cutler who represented our Round Table on this:

Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.

Alan Schoenfeld
Alan Schoenfeld
Partner
Wilmer Cutler, NY
Lori a. Martin
Lori A. Martin
Partner
Wilmer Cutler, NY
Knjightess
Knightess of the Round Table

This team is it’s own “Special Forces Brigade” of the New Due Process Army (“NDPA”)!

WOW! Persons are “persons” under the Constitution even when they have brown skins and are asylum seekers! How “rad” can you get! What a blow to “business as usual” for the regime and their “Dred Scottification” program of dehumanizing and making non-persons out of migrants and other vulnerable minorities!

Too bad that the Supremes and other Circuit Courts have too often advanced “Dred Scottification,” hiding behind transparently bogus and contrived “national emergencies” and the doctrine of judicial dereliction of duty otherwise known as “Chevron deference.” I guess that’s why the regime has the contempt for both the law and the Article III Courts to press such legally, morally, and Constitutionally “bankrupt” arguments as they did in this case. Never know when you’ll get a “thumbs up” from those who sometimes don’t view oaths of office and their obligations to their fellow humans with enough seriousness!

Significantly, the panel found that “plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a “neutral decisionmaker.” However, in doing so they “papered over” the obvious fact that the constitutional requirement of a “neutral decisionmaker” cannot be fulfilled as long as Billy Barr or other politicos control the Immigration Courts! 

Indeed, the panel decision was a strong rebuke of Barr’s atrocious, unethical, scofflaw decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) purporting to unilaterally change the rules to eliminate bond for those who had passed “credible fear.” Fact is that no individual appearing in today’s Immigration Courts has access to the constitutionally-required “neutral decisionmaker” because Barr retains the ability to simply unilaterally change any result that doesn’t match his White Nationalist nativist agenda and can hire and fire the so-called “judges” at will.

Indeed, under Barr’s totally illegal and professionally insulting “production quotas,” I’m not sure that the “judges” on the “deportation assembly line” even get “production credit” for bond decisions because they aren’t “final orders of removal.” However, denial of bond is actually an important “whistle stop” on the “deportation express.” Those kept in the “New American Gulag” have difficulty finding attorneys and the systematic mistreatment they receive in detention helps to demoralize them and coerce them into giving up claims or waiving appeals.

When are the Article IIIs finally going to stop “beating around the bush” and hold this whole mess to be unconstitutional, as it most clearly is? 

In some ways, the panel’s decision reminds me of one of my own long-ago concurring/dissenting opinion in Matter of Joseph, 22 I&N Dec. 799, 810 (BIA 1999) (en banc) (“Joseph II”):

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in custody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-vail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

Concern for Due Process and fundamental fairness have intentionally been eradicated in the Immigration “Courts” by Sessions, Whitaker, and Barr. It’s past time for this constitutional mockery to be put out of its misery (and the unending misery it causes for the humans coming before it) once and for all!

As my late BIA colleague Judge Fred W. Vacca once said, albeit in a different context, “It’s time to put an end to this pathetic imitation of an adjudication.” Fred and I didn’t always agree. In fact, we disagreed much of the time. But, he did know when it was finally time to “stop the nonsense,” even when some of our colleagues just kept the system churning long past the point of reason and sanity.

And, folks, that was back in the days when the BIA actually functioned more or less like an “independent appellate court” until the Ashcroft purge of ’03 forever ended that noble vision. Like the rest of the system and those who enable it to keep churning lives as if they were mere water under the bridge, the BIA and the rest of the Immigration “Courts” have now become a national disgrace — a blot on our national conscience. Human beings seeking justice are neither “numbers” to be achieved for “satisfactory ratings,” nor “enforcement problems” to be exterminated without Due Process.

Dehumanization of the “other”and stripping them of legal and human rights is a key part of fascism. It’s what allowed German judges and most of German society to “look the other way” or actively aid in the holocaust. It has no place in our justice system — now or ever!

Due Process Forever! Judicial Complicity in Weaponized Captive “Courts,” That Aren’t Courts At All, Never!

PWS

03-28-20

OUR IMPLEMENTATION OF ASYLUM LAW HAS ALWAYS BEEN FLAWED — NOW, TRUMP HAS SIMPLY ABROGATED THE REFUGEE ACT OF 1980, WITHOUT LEGISLATION — But, Led By The Complicit Supremes, Federal Appeals Courts Seemingly Have Lost Interest In Protecting Human Rights, Saving Lives, & Holding The Regime Accountable — America No Longer Has A Functioning Asylum & Refugee Protection System

https://www.washingtonpost.com/outlook/2020/03/21/coronavirus-cant-be-an-excuse-continue-president-trumps-assault-asylum-seekers/

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

 

By Yael Schacher in WashPost: 

The coronavirus has crowded out many policy debates. But in one area, immigration, it is fusing with the Trump administration’s broader agenda.

Using covid-19 as a cover, the administration is making its most overt move yet to eliminate the right to seek asylum in the United States. Officials claim that because of coronavirus, beginning March 21, they swiftly can return or repatriate asylum seekers at the U.S.-Mexico border. This unprecedented move violates U.S. and international law and may actually exacerbate the spread of covid-19 at the border. It also betrays the core promise of the 1980 Refugee Act, signed 40 years ago this week.

With this law the United States belatedly accepted the definition of a refugee established by the 1951 U.N. Convention and 1967 Protocol on the Status of Refugees. The Act passed Congress with overwhelming bipartisan support and made resettling refugees from abroad a part of the nation’s immigration policy. But the Act also accorded people fleeing persecution a chance to seek asylum if they arrived at U.S. borders or already were in the United States.

The law established that people could seek asylum regardless of their immigration status or mode of entry and prohibited U.S. authorities from sending asylum seekers to a place where their lives or freedom would be threatened. It is crucial to remember this right now, given the all-out assault on the U.S. asylum system by the Trump administration, which began even before the coronavirus. The proposed new ban on asylum that would turn back asylum seekers will endanger the lives of even more refugees and further jeopardize our collective public health by sending people to live on the Mexican side of the border where they will lack adequate shelter and care and where there is no way to prevent the spread of coronavirus. As the United Nations High Commissioner for Refugees has written, turning away asylum seekers would send them into “orbit” in search of a refuge and, as such, may contribute to the further spread of the disease.

Before the passage of the Refugee Act in 1980, the United States was violating the human rights of asylum seekers, in particular the thousands of Haitians who arrived in Florida by boat. Instead of having their asylum cases heard they were systemically detained by the Immigration and Naturalization Service, denied due process in the immigration courts and threatened with deportation to the persecution they had fled.

Haitian leaders and refugee advocates in New York and Florida protested against this treatment and, in May 1979, sued the government in federal court in Haitian Refugee Center v. Civiletti. In his 1980 decision, Judge James Lawrence King (a Nixon-appointee) excoriated the U.S. government for violating the rights of Haitians and prejudging their claims. As King wrote, the evidence presented at trial was “both shocking and brutal, populated by the ghosts of individual Haitians — including those who have been returned from the United States — who have been beaten, tortured, and left to die in Haitian prisons.”

King also referred to convincing evidence provided by Amnesty International and the Lawyers Committee for International Human Rights (now Human Rights First) that asylum seekers were mistreated both by U.S. immigration authorities and upon return to Haiti.

As the litigation was going on, members of Congress worked on the language of the Refugee Act. Amnesty and the Lawyers Committee suggested to then-Rep. Elizabeth Holtzman (D-N.Y.) language be added specifically to prevent people from being returned, as Haitians had been, and safeguard the right to seek asylum upon reaching anywhere in the United States. Without such a safeguard written into the law, the right to seek asylum would not be secure outside of South Florida, where Judge King’s ruling applied. Grounding the right to seek asylum in a statute also makes it harder to limit federal court review of executive branch policies that violate it.

Holtzman adopted Amnesty’s language into the House version of the bill, and it became the first provision of section 208 of the Immigration and Nationality Act. Holtzman’s language explicitly provided for the right to seek asylum not only to those who came by sea but also to those who crossed a land border or arrived at a border port of entry. Unfortunately, Holtzman did not accept the Lawyers Committee’s recommendation that the Refugee Act also include “guidelines” for determining who would be eligible for asylum and how they would prove it. It left these procedures to the executive branch.

Nonetheless, as she wrote in her report on the bill, “The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law.”

Almost immediately after the Refugee Act went into effect in April 1980, Fidel Castro allowed thousands of Cubans to sail to the United States. As the Carter administration devised a special program to deal with this influx, the development of general asylum procedures was put off (with only interim regulations published). Beginning in 1981, the Reagan administration embraced deterrence through interdiction, detention and externalization as the path to deal with asylum seekers, shirking the intention of Holtzman and Congress, which had ensured the right to seek asylum in the 1980 Act.

These strategies remain the norm to this day. As Sen. Ted Kennedy wrote in 1981, the Act would be an effective instrument only if U.S. leaders used it wisely, to serve the country’s humanitarian traditions. The U.S. government has not paid adequate attention or resources to ensure fair and efficient adjudication of asylum claims. Indeed, Congress itself appropriates no money to United States Citizenship and Immigration Services for asylum adjudication and has allowed the immigration courts to be weaponized against asylum seekers. Over the last three years, the Trump administration has engaged in an all-out assault on asylum that already has restricted the ability of many immigrants to qualify for refuge and sent over 60,000 people to wait in Mexico, where they are forced to live in dangerous, inhumane conditions in open-air encampments and shelters.

. . . .

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Read the rest of the article at the link.

This article inspires me to do a “reprise” of remarks I made at the Federal Bar Association’s Annual Immigration Conference in Austin, Texas, in May 2018. I describe the post-1980 history of asylum in the Immigration Courts and how the Obama Administration’s exceptionally poor and often tone-deaf handling of asylum issues at EOIR, and particularly their ill-advised response to the so-called “Southern Border Crisis” in 2014, seriously deteriorated due process and the functioning of the Immigration Courts while “paving the way” for even more blatantly scofflaw actions by the Trump regime.

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them;illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have beengranted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

PWS

O3-24-20

SORRY, FOLKS, IT AIN’T YOUR DADDY’S ARLINGTON IMMIGRATION COURT ANY MORE: Under The Thumb Of The Trump Regime, Asylum Denial Rate Goes From 29.4% To 51.7%, Even As Worldwide Conditions For Refugees Continue To Deteriorate!  — Think This Is “Using Best Practices To Guarantee Fairness & Due Process For All?” Guess Again!

Courtside” recently received this from an “inherently reliable source:”
Click here to get the latest “asylum denial rates” for Arlington:

 

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Before Trump, Arlington was a “model court” where Immigration Judges, with the help of the ICE Chief Counsel and the private bar, developed “best practices” and asylum seekers got a fair shake. In just a few short years under the Trump regime, it has moved steadily in the other direction toward the type of “denial factory” that the Trump regime wants to be the model for all Immigration Courts. Of course, Arlington isn’t close to the 100% denial rate that the regime wants and that is close to realization in some other courts. But, the deterioration of due process and fairness in Arlington is still disheartening.

 

We should always remember that the unconstitutional “weaponization” of the Immigration Courts is continuing to happen right under the noses of a feckless Congress and Article III Judges who should long ago have ended this abomination. Everyone responsible for this life-threatening mess will have much to answer for in the “Court of History.”

 

In the meantime, congratulations and appreciation to those judges who keep interpreting and applying asylum law in the generous way dictated by Cardoza-Fonseca and Mogharrabi.  You are heroes in an age that where all too many show cowardice and a willingness to “go along too get along” in the face of great tyranny!

Due Process Forever! Judges Who Won’t Stand Up For Asylum Seekers, Never!

 

PWS

 

03-19-20

LATEST OUTRAGE FROM FALLS CHURCH: BIA IGNORES FACTS, ABUSES  DISCRETION TO DENY BOND TO ASYLUM SEEKER: Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020)

Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020)

https://go.usa.gov/xdzDv

BIA HEADNOTE:

The Immigration Judge properly determined that the respondent was a flight risk and denied his request for a custody redetermination where, although he had a pending application for asylum, he had no family, employment, or community ties and no probable path to obtain lawful status so as to warrant his release on bond.

PANEL: BIA Appellate Immigraton Judges MALPHRUS, Acting Chairman; LIEBOWITZ, Board Member; MORRIS, Temporary Board Member.

OPINION BY:  Acting Chairman Judge Garry D. Malphrus

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In a real court, with fair and impartial judges who follow the law and respect facts, this should have been a “no-brainer.” 

The Government’s own statistics show that represented asylum applicants released on bond show up for hearings nearly 100% of the time, regardless of “likely outcome.”  https://immigrationcourtside.com/?s=Asylum+Seekers+Appear. The respondent is a represented asylum seeker from Honduras without any criminal record or record of failures to appear. He passed the “credible fear” process. He has friend with whom he can live in the U.S. while pursuing his case. He comes from a country, Honduras, with known horrible conditions that even in this time of intentionally biased administrative anti-asylum “law” produces more than 1,000 asylum grants in Immigration Court annually, according to FY 2019 statistics from EOIR. 

His case apparently is based on his status as a gay man in Honduras.  According to the U.S. State Department’s 2019 Country Report, this claim has a very good chance of succeeding:

Nevertheless, social discrimination against LGBTI persons persisted, as did physical violence. Local media and LGBTI human rights NGOs reported an increase in the number of killings of LGBTI persons during the year. Impunity for such crimes was a problem, as was the impunity rate for all types of crime. According to the Violence Observatory, of the 317 cases since 2009 of hate crimes and violence against members of the LGBTI population, 92 percent had gone unpunished.

https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/honduras/

Clearly, he should have been released on a minimal bond, particularly given the potentially health-threatening conditions in DHS detention during the pandemic.

Thus, the BIA’s “no bond” decision in this case was an outrageous misconstruction of the commonly known facts as well as a misapplication of basic bond law. In other words, an “abuse of discretion.” At some point after the justice system resumes functioning, I  hope that a “real” Federal court will “stick it to” this disgracefully disingenuous performance by this BIA panel.

We need “regime change” and an Article I U.S. Immigration Court staffed with fair and impartial judges at all levels, with “real life” expertise, who actually understand and will fairly apply asylum laws.

Due Process Forever! Patently Unfair And Biased Immigration “Courts” Never!

PWS

03-18-20

BORDER CLOSINGS GO BOTH WAYS: Guatemala Refuses More U.S. Deportations — Regime’s “4-D” Approach About To Hit a Brick Wall?

Molly O’Toole
Molly O’Toole
Immigration Reporter
LA Times
Cindy Carcamo
Cindy Carcamo
Immigration Reporter
LA Times

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=e7303b6a-98d8-40e2-af8f-cc25ea5200ab&v=sdk

Molly O’Toole and Cindy Carcamo report for the LA Times:

GUATEMALA CITY — Guatemala on Tuesday became the first Central American nation to block deportation flights from the United States in an effort to prevent the spread of the coronavirus, a dramatic turnabout on Trump administration policies barring entry to asylum seekers from the region.

Guatemala’s Foreign Ministry announced that all deportation flights would be paused “as a precautionary measure” to establish additional health checks. Ahead of the announcement, President Alejandro Giammattei said in a Monday news conference that Guatemala also would close its borders completely for 15 days.

“This virus can affect all of us, and my duty is to preserve the lives of Guatemalans at any cost,” he said.

Guatemala, a major source of migration to the United States as well as a primary transit country for people from other nations headed to the U.S.-Mexico border, in recent days has blocked travelers from the U.S., as well as arrivals from Canada and a few European and Asian countries.

The Guatemalan government under Giammattei’s new administration had confirmed six coronavirus cases as of Monday morning. But it has taken a hard tack in its response to the pandemic to try to prevent the rapid spread seen in North America and elsewhere, becoming among the first in the region to bar entry of Americans.

Other nations in the Western Hemisphere, including El Salvador, Honduras, Panama, Colombia, Ecuador, Argentina, Chile and Peru, also have taken steps to bar foreigners and, in some cases, to shut their borders, including to their own returning citizens.

Guatemala’s move to refuse deportations will have a significant impact on the Trump administration’s efforts to ramp up a controversial agreement under which the United States sends migrants who are seeking asylum in the United States to Guatemala instead, even those who aren’t Guatemalan citizens.

The deal between the U.S. and Guatemala, called the Asylum Cooperative Agreement, denies the asylum seekers the opportunity to apply in the United States for refuge and instead allows them only to seek asylum in Guatemala.

Guatemala’s highest court initially blocked the agreement. Since November, the U.S. has sent Guatemala more than 900 men, women and children who have arrived at the border from El Salvador and Honduras.

. . . .

On Monday, the ACLU and other groups filed suit against ICE, seeking the release of immigrants in detention who are particularly vulnerable to COVID-19. Immigration judges, prosecutors and lawyers also called on the Justice Department to close immigration courts.

Judge A. Ashley Tabaddor, president of the National Assn. of Immigration Judges, said judges had been told to continue holding hearings with immigrants during the health crisis.

“Call DOJ and ask why they are not shutting down the courts,” she said, referring to the Justice Department.

O’Toole reported from Guatemala City and Carcamo from Los Angeles. Times staff writer Maura Dolan in Orinda, Calif., contributed to this report.

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

Read the full article at the link.

I suppose that the regime will just start dumping all deportees from all countries in Mexico. But, viruses know no borders. 

To date, Mexico’s reported number of coronavirus cases is much lower than the U.S. However, we don’t know whether or not that is a product of there actually being fewer cases or Mexico having poor testing and reporting procedures. But, eventually what happens in Mexico will affect the U.S. Of that, we can be sure. And, no wall or Executive Order will stand in the way.

Seems like it would be a good time for some mutual cooperation between the U.S. and Mexico to determine the best mutually effective ways of handling border control issues in the time of pandemic, consistent with controlling the spread of disease in both countries. The regime did reach an agreement with Canada on border limitations today. But, when dealing with countries to our south, the regime has shown a strong preference for unilateral actions or bogus “agreements” obtained by duress and threats.

In any event, the end of direct deportations by air could be a consequence of the pandemic. And, given the limitations on detention and its health risks, the regime might be forced to come up with other approaches on how best to treat all persons within our borders, whether we like it or not. The regime’s “4-D Immigration Policy” — Detain, Deny, Deport, Distort — might be “hitting the wall.”

Still not clear what’s happening in the Immigration Courts.

PWS

03-18-20

I’M NOT THE ONLY RETIRED JUDGE TO “CALL OUT” JOHN ROBERTS FOR BETRAYAL OF CONSTITUTIONAL DUTY, DESTRUCTION OF AMERICAN VALUES, INTELLECTUAL DISHONESTY, & SUPREME COMPLICITY IN THE FACE OF TYRANNY! — Retired Hawaii State Judge James Dannenberg: “You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law. The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others.”

I https://slate.com/news-and-politics/2020/03/judge-james-dannenberg-supreme-court-bar-roberts-letter.html

Dahlia Lithwick
Dahlia Lithwick
Legal Reporter
Slate
Hon. James Dannenberg
Honorable James Dannenberg
Retired State Judge
Hawaii

Dahlia Lithwick reports for Slate:

James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.

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On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

The Chief Justice of the United States

One First Street, N.E.

Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

**********

So true. I’d also compare JR’s subservience to a transparently racist, White Nationalist, authoritarian agenda to White Supremacist darling Chief Justice Roger Taney, author of the Dred Scott decision. Roberts is knowingly enabling the “Dred Scottifing” of Hispanics, African Americans, Muslims, political opponents, the LGBTQ community, journalists, minority voters, and a host of others on the authoritarian regime’s “enemies” list.

At a time when America needs a Chief Justice with the courage and integrity to stand up for our Constitution, the rule of law, and the lives of the most vulnerable among us, we instead get Roberts.

J.R. Is quick to stand up for the rights of corporations, guns, and the Executive. But, when it comes to the rights of individuals — things like due process, human rights, and the right to be treated with human dignity, he’s nowhere to be found. 


One of the most grotesque failures to stand up for our Constitution, the legal rights of asylum seekers to fair adjudication, and human rights was J.R. & his Supremes’ majority’s granting of the regime’s bogus emergency stay in Wolf v. Innovation Law Labhttps://immigrationcourtside.com/2020/03/11/let-the-killing-continue-predictably-supremes-game-system-to-give-thumbs-up-to-let-em-die-in-mexico-brown-lives-dont-matter/

Only Justice Sotomayor had the guts and intellectual integrity to stand up for the future of humanity, simple human decency, and the rule of law by voting to deny the regime’s fraudulent stay request. Typically, Roberts & Co. didn’t even have the decency and intellectual honesty to provide a rationale for their life-threatening action. A reasoned decision is one of the “minimal requirements for due process” that Roberts and the Supremes’ majority ignore on a regular basis when rolling over for Trump toady Solicitor General Noel Francisco and his transparently fabricated “emergencies.” Francisco is another one whose disingenuous role and disregard for legal ethics in carrying out Trump’s wanton cruelty and human rights abuses should never be forgotten.

The damage caused by Roberts’s failure to lead and protect humanity isn’t legalistic or academic. It’s “real harm” to “real people.”

Let’s get “up close and personal” with what happens to individuals who fled to our country seeking only due process and fair and humane treatment, just to find Roberts’s and his Supremes’ immorality and warped sense of justice.

Here’s what Roberts’s complicity looks like:

The burns from the acid attack Elizabeth endured while she was kidnapped.
The burns from the acid attack Elizabeth endured while she was kidnapped.
The acid burned all the way through to the bone in Elizabeth's left ankle.
The acid burned all the way through to the bone in Elizabeth’s left ankle. Courtesy of Elizabeth.
Courtesy of Elizabeth Elizabeth's acid burns.
Courtesy of Elizabeth
Elizabeth’s acid burns.

That’s right folks. Torture, proudly presented to you by Chief Justice John Roberts and the majority of the United States Supreme Court. Who would have thought it could happen here? Like Judge Dannenberg, I spent a lifetime respecting the Supreme Court and even defending their decisions, including ones with which I disagreed. That has ended with the corruption, dishonesty, and inhumanity of the Roberts Court in the Age of Trump. Unworthy of America. Unworthy by of respect.

And here’s some narrative to go with it from Adolfo Flores over at BuzzFeed News:

https://www.buzzfeednews.com/article/adolfoflores/asylum-seeker-tortured-mexico

. . . .

Elizabeth left her home in Guatemala after being brutally beaten by the father of her daughter. She went to the police who refused to help her despite filing a complaint against him. The beatings in front of her daughter continued. Fearing that one day soon he’d kill her, Elizabeth left with her daughter.

“There’s a reason why there are so many femicides,” Elizabeth said.

The pair arrived near Ciudad Juárez in late July. She got off a bus she took with her daughter that was supposed to take them to Ciudad Juárez and got into what she believed was an Uber. She asked the driver to take her to the bridge that connects the city to El Paso. But as the city lights started to fade and the streets turned to desert and cliffs, Elizabeth realized the driver was taking her away from the city.

For about 12 days she was kept inside a dirty home, occasionally fed old food, and assaulted. Different men touched her genital area and licked her breasts in front of her daughter, according to documents provided by her attorneys. She wasn’t raped, but later had brownish discharge from her vagina she believes was the result of the men hurting her with an object or fingers.

Her attorneys said they believe the men were in the cartel, but don’t know for sure. They threatened to rape her and her daughter if she didn’t provide them with a number to call family for ransom. After days of holding her for ransom that her family couldn’t pay, the men threw chemical acid on her legs that resulted in second-degree burns. Despite closing her eyes and covering her ears, her then-10-year-old daughter could hear her mother’s screams, later telling Elizabeth she would never forget the sound of them.

At one point their kidnappers went outside and her daughter realized they left the door open. Elizabeth was too weak and in too much pain from the acid burns, but her daughter persisted.

“‘I don’t want them to kill us, torture us, or do something worse,'” Elizabeth recalled her daughter saying. “‘I can’t take this anymore, I feel like I’m going to die from sadness.'”

The pair ran from the house and were eventually chased by their kidnappers, armed with large black weapons, Elizabeth said. She fainted from the pain and heat, so her daughter ran ahead and flagged down police officers who called for help. A helicopter arrived shortly after to pick up Elizabeth.

Elizabeth woke up in a hospital and was discharged after seven days despite her left ankle still bleeding and with the bone exposed. Elizabeth said the hospital was overcrowded and didn’t have enough space, but believes she was discharged quickly because she was an immigrant and not a priority for the hospital’s staff.

She was taken to a shelter that was later closed due to bad conditions. At a second shelter, the director and staff helped cure her ankle — which smelled and cause her to fear she would get gangrene — with medication and topical creams because Elizabeth was too scared to venture outside.

In November, Elizabeth had recovered enough to walk, so she went with her daughter to the Arizona border and presented herself to CBP officers to request asylum. She told them about her attack and was taken to a hospital in Tucson to be medically screened. The doctor prescribed her medication to avoid infection. Then CBP sent her back to Ciudad Juárez.

On Jan. 31, Palazzo and other attorneys walked with her to a border crossing and asked that she be allowed to fight her case in the US. She was interviewed on the phone by the asylum officer who later said she failed.

While Elizabeth was in Ciudad Juárez, the shelter operators asked her if she could watch the door while they ran an errand. A shootout occurred shortly after between criminals and police near the shelter. Men who were running from the police ran up to the shelter’s doors and told Elizabeth to let them in. She faced them and refused, but they threatened to come back for revenge before running off.

Last week, a day before Elizabeth was due at a court hearing in El Paso, she was in the streets of Ciudad Juárez when one of her kidnappers approached her and recognized her. Filled with dread, Elizabeth and her daughter quickly made their way to the shelter to hide. Her fear then was that the men would come looking for her there.

The next day, on Friday, she went to her immigration court hearing in El Paso. She joined other immigrants in MPP who present themselves at the border in the predawn hours of the day to be transported to immigration court. Her plan was to ask for another non-refoulement interview, but that same morning, a federal appeals court blocked the Trump administration policy.

For the entire day, attorneys, immigrants, and advocates tried to understand what the 9th Circuit Court of Appeals’ order affirming a 2019 preliminary injunction meant for people stuck in Mexico, but also what would happen to those who had court hearings in the US that day, like Elizabeth. Sending them back would surely violate the judges’ order, some immigration attorneys said.

By Friday night, the 9th Circuit stayed its initial order blocking the Trump administration from enforcing MPP and the policy was allowed to continue. Still, Elizabeth and her daughter remained in CBP custody, and attorneys weren’t sure authorities were going to release her into the US.

She was interviewed three times about her fears of being sent back to Mexico. Her daughter told a US asylum officer about the nightmares she has, how she can’t sleep, and that she had trouble eating. Eventually, Elizabeth was told she passed her interview, was released Monday with an ankle monitor, and sent to reunite with family in Kansas.

Elizabeth was worried about the costs of continuing to receive medical care in the US for her acid burns, but she is determined to start a new chapter in her life.

“I’ve suffered a lot,” she said, “but for the first time in a long time, I feel safe.”

UPDATE

March 7, 2020, at 12:54 a.m.

This post was updated to include the more than 1,000 public reports of rape, torture, kidnapping, and other violence against immigrants sent back to Mexico.

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There are lots of Elizabeths out there who have been silenced, some forever, by the likes of Roberts and other “unjust judges.” But, eventually, their stories will be told in all their grim and horrifying detail. At that point, folks like Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and their enablers will attempt to “rewrite history,” to eschew moral and legal responsibility and shift the blame elsewhere with the “usual BS” like “just following the law,” “calling balls and strikes,” “just following orders.” Those are largely the same pathetic excuses offered by those who advanced the cause of human slavery, created Jim Crow, enabled genocide against Native Americans, and helped Hitler.

One of the most important tasks of the younger generation of the New Due Process Army is to bear witness and insure that J.R. & Co. don’t “get away with murder,” literally. Their job is to insure that the stories of those wronged by enablers of the Trump regime are heard loudly and clearly; to confront the complicit with the judgements of history; to insure that the descendants of those who “stood small” and failed humanity know who their ancestors “really were” when the chips were down; and to make sure that history never again repeats itself in the form of John Roberts or anyone like him being allowed to hold positions of great trust and public responsibility in our judiciary.

Take a good like at the pictures above of Elizabeth’s legs and ankles. Those aren’t the results of somebody legitimately “just calling balls and strikes.” Roberts has “struck out.” Unfortunately, however, the rules allow him to continue to play the game to the detriment of our nation and human decency and the continued torment of those to whom he has willfully and inexcusably  denied justice.

Due Process Forever; The Complicity of John Roberts, Never! 

 

PWS

03-14-20