"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
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The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
WASHINGTON — The scenes witnessed by journalists and humanitarian workers in recent months have been striking: In Sudan, swollen-bellied babies are looking for anything to eat. In Yemen, where warring parties have blocked humanitarian aid, hollow-eyed children and their mothers languish on the brink of death from starvation. In Ukraine, the elderly are collecting rancid rain runoff for drinking water.
Malnourishment and hunger were big problems even before Russia invaded Ukraine in February and cut off Europe’s breadbasket from its markets, sparking a flurry of dire warnings about the world’s food supplies. Dozens of countries across the globe are already suffering from devastating food shortages, so much so that the number of people facing starvation more than doubled in just the last two years, to 345 million, according to United Nations figures.
The causes are myriad: drought and flooding, and the interruption of supply chains triggered by the COVID-19 pandemic, especially in China. An estimated 20 wars or conflicts — the latest in Ukraine — have also seriously disrupted access to food and water.
“The current food security challenge that we’re facing [is] due to these three Cs: climate, COVID and conflict,” said Ramin Toloui, assistant secretary of State for economic affairs, one of several Biden administration officials tasked to food-security issues.
The bleak situation drew the attention of powerful diplomats Friday when U.S. Secretary of State Antony J. Blinken and the foreign ministers of six other of the world’s largest economies met in Germany to map out plans for easing global food shortages. Few observers expect real solutions to emerge but hope the summit will highlight the crisis and boost funding for anti-hunger efforts.
The Biden administration has committed about $8.5 billion to emergency food assistance and related programs, focusing initially on the Horn of Africa, Yemen, Lebanon and Haiti, Blinken said.
“We hear all these numbers; we’ve all cited numbers of this growing food insecurity,” Blinken said in Berlin. “But what we know is this: We know that those numbers are people, real people, real lives, real livelihoods, mothers, fathers, children. … As human beings, all of us have to be seized with this.”
The U.N.’s World Food Program calculates that eight of the 10 largest food crises worldwide are being primarily driven by conflict — in Yemen, Ethiopia, Afghanistan and the Democratic Republic of Congo. Such wars force people from their homes into long desperate treks for safety. They devastate farms and wreak havoc on food distribution systems.
In Latin America, food scarcity is also driving tens of thousands of people to abandon parched or hurricane-leveled farms and migrate to the United States.
These were the disasters already in motion when Russia invaded Ukraine. Now, the U.N. says the Russian blockade of Ukraine’s Black Sea ports could lead 40 million more people to go hungry.
. . . .
Caitlin Welsh, a veteran expert in global food security who heads that program at the Center for Strategic and International Studies in Washington, said hunger and famine have consequences for both health and politics.
Hungry people can be angry people, and the rising price of food or fuel have led to coups throughout history. The health effects of going hungry can be far-reaching and insidious, Welsh said.
“The sudden elevation in prices [of foodstuffs like bread] can make people shift from more nutritious food to items of lower nutrition,” she said. And for pregnant women and young children, that can cause lifelong disabilities, Welsh said.
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Read Tracy’s complete article at the link.
War is bad, particularly when those who needlessly start them for their own amusement, ego, and nationalistic jingoism escape accountability. See, e.g., V. Putin.
Anna Flagg is The Marshall Project’s senior data reporter.
Julia Preston is a contributing writer at The Marshall Project.
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Twitter, Instagram and Facebook.
During their harrowing journey from Venezuela to the Texas border, the three Zaragoza children liked to imagine the refuge they would find when they reached the United States, a place where they would finally be free from hunger and police harassment and could simply be kids
Instead, when they reached the border in March, they were detained — dirty with mud from the Rio Grande and shivering with cold — in frigid cinder block cells. They spent sleepless nights on cement floors, packed in with dozens of other children under the glare of white lights, with agents in green uniforms shouting orders.
The siblings were booked by officers who asked questions they didn’t understand and were told to sign documents in English they couldn’t read. Even after their release three days later, they feared the U.S. would never be the haven they had longed for.
Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
For most young migrants crossing without documents, the first stop in the U.S. is one of some 70 Border Patrol stations along the boundary line. The records reveal that detaining children and teenagers has become a major part of the Border Patrol’s everyday work. The records also show that conditions for minors have not significantly improved under President Joe Biden. While the numbers of kids in Border Patrol custody peaked in 2019 under former President Donald Trump, they rose again when Biden took office and have remained high.
Those numbers could surge to new highs when the Biden administration eventually lifts Title 42, a public health order that border authorities have used for more than two years to swiftly expel most unauthorized border crossers, including many children.
But the Border Patrol has resisted making changes to its facilities and practices to adapt to children, even while officials acknowledge that the conditions young people routinely face are often unsafe.
“A Border Patrol facility is no place for a child,” Homeland Security Secretary Alejandro Mayorkas, the nation’s highest immigration official, has repeatedly said. However, even now, as authorities are scrambling to beef up enforcement and expand detention capacity in preparation for a post-Title 42 influx, the Border Patrol’s basic approach to kids remains the same: Just move them out of custody as fast as possible.
Without broader changes, many thousands of kids seeking protection will remain at risk for harsh, demeaning and sometimes dangerous treatment as their first experience of the United States.
. . . .
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Read Anna’s and Julia’s complete, disturbing, infuriating report at the link. Unnecessary, immoral, inappropriate, and just plain stupid and evil! Did I mention stupid and evil?
Thanks, in part, to the Trump Administration’s policies of racist child abuse masquerading as “immigration enforcement,” there is a large body of recent, available, accessible empirical data on the devastating effects on children, families, society, and our world’s future of immigration enforcement that targets children, teens, and other vulnerable groups!
The “perps” of these repulsive policies will “check out” at some point in the future. The Biden Administration, which pledged to do better but disgracefully hasn’t delivered, also can’t and should not escape accountability.
The damage they are inflicting on future generations and the ability of our world to harness and utilize in a cooperative fashion the “human capital” needed for our planet’s and humanity’s survival is totally unacceptable! People of intelligence, courage, energy, innovation, and compassion must work together to stop this disgraceful abuse. Those chosen as responsible leaders and officials in the future must represent “our better angels!” 😇
While those of us in the “senior generation” who believe in social justice and a better future for humanity will continue the fight, our “time on the stage” is inexorably winding down. It will be up to the NDPA and the rest of the upcoming generation — in America and elsewhere — to decide what kind of world they want to live in and what they are willing to do, and sometimes sacrifice, to make it happen.
As I have said many times: “We can diminish ourselves as a nation, but it won’t stop human migration!”
It’s past time for a better, more realistic, more human, and “robustly humane” approach to human migration!😎 One that focuses on the long-term welfare of children and society, NOT short-term mythical “enforcement goals” or fears!
When immigration officials come to Aaliyah’s home and take her father, she and her family find themselves coping with a variety of emotions. As they prepare themselves for the legal proceedings in Immigration Court, Aaliyah realizes how brave she is, and the family realizes how important communication about what is happening helps to empower her.
Designed as a resource for parents, teachers, social workers, advocates, and lawyers, Aaliyah The Brave helps readers understand the impact immigration enforcement can have on children and what emotions children may feel in the aftermath.
Reviews
“Rekha’s book makes a much-needed contribution in relating, in a first-personal way, the destructive impact immigration enforcement has on children’s lives. It will hopefully help create more space for kids to verbalize and make sense of their own experiences with the confusing and oppressive system that is such a big part of their families’ journeys.”
“Aaliyah the Brave is a story of resilience and an amazing tool for any adult that wants to start a difficult conversation with their child but does not know how. Immigration and family separation is a reality that we can no longer ignore. The book’s author does an incredible job at teaching the public about the process while encouraging open communication and emotional validation within the family unit.”
Dr. Marina G. Villani Capó
Bilingual Clinical Psychologist at a children’s hospital, Miami, FL
“Aaliyah The Brave is a much-needed and inspiring story for children impacted by the harsh reality of our immigration laws. Parents, attorneys, adjudicators, and all adults involved in our immigration system can help children like Aaliyah process their feelings when faced with separation from a loved one. Sharma-Crawford’s story is a thoughtful, accurate portrayal of what many families face, and demonstrates that even the youngest members of the family can benefit from honest and compassionate communication through uncertain times.”
“Aaliyah the Brave is an intimate narrative on the delicate nature of legal status in America. The story offers a simple yet thought-provoking conversation starter to build empathy for the children facing these issues and the community around them.”
“The story of a little girl who finds great courage in the face of unspeakable hardship, AALIYAH THE BRAVE is a go-to resource for parents, lawyers, and teachers helping children process the pain of family separation and immigration enforcement.”
Valarie Kaur
Civil rights leader and author of SEE NO STRANGER: A MEMOIR AND MANIFESTO OF REVOLUTIONARY LOVE
ABOUT REKHA SHARMA-CRAWFORD, ESQUIRE:
Rekha Sharma-Crawford ESQUIRE Partner and Co-Founder Sharma-Crawford Law Kansas City, KS
Rekha Sharma-Crawford is a nationally recognized, award-winning, attorney and advocate for immigrant families and children. She represents clients across the United States but calls Kansas City home. More information about her practice can be found at Sharma-Crawford.com
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My friend Rekha Sharma-Crawford is an award winning human rights attorney (“a fiery advocate”), educator, author, and parent. I recently had the pleasure of working with Rekha, my Round Table colleagues Judges Lory D. Rosenberg and Sue Roy, and a cast of outstanding instructors at the Sharma-Crawford Clinic Immigration Trial College (a/k/a “The Litigation Boot Camp”) in Kansas City, KS, April 28-30, 2022.
At a time when there is far, far too much talk about intentional cruelty, exclusion, dehumanization, and rejection of the “most vulnerable” (and often the bravest) among us, this book is a welcome and refreshing change!
Garland’s vision of “justice” for refugee children appears to be little different from that of Stephen Miller and his White Nationalist predecessors at DOJ! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Cindy Carcamo Immigration Reporter LA Times
After drug traffickers killed his little brother, William and his 6-year-old son, Santiago, fled Colombia last September to seek asylum in the United States.
Unbeknownst to William, who ended up in Los Angeles with a friend, he and his son immediately became part of a cohort of thousands of families in a “dedicated docket” program that the Biden administration established in 11 cities, including Los Angeles, in May 2021.
In response to a sudden rise of apprehensions last spring of families and children at the Southwest border, Biden promised the accelerated docket would resolve cases “more expeditiously and fairly.” These sorts of programs have existed in various forms under previous administrations; Biden’s program pushes immigration judges to resolve cases in 300 days, significantly shorter than the 4.5-year average of asylum cases in immigration court.
But according to a new Center for Immigration Law and Policy at UCLA Law report, the docket’s fast-track timeline has imposed new hardships on many asylum seekers and created additional obstacles that ultimately lead to higher rates of deportation orders, sometimes based on legal technicalities.
For William — who didn’t want his last name published, fearing reprisal against his family still living in Colombia — the docket’s expeditious nature meant he had only six weeks to secure legal representation before his first court hearing, leaving him to navigate a complex and often confusing system without an attorney. Immigration officials provided him with documents heavy with legal jargon in English. He could read only in Spanish.
In addition, those on the docket are released with “alternatives to detention,” which means they are monitored, either with an ankle bracelet or via a phone application. Immigration officials shackled William with a GPS monitor on his ankle before releasing him and his son.
Ultimately, an immigration judge ordered William and his 6-year-old to be deported in “absentia” when they didn’t show up for their court hearing at U.S. Immigration Court in downtown Los Angeles. In fact, at the time the judge gave the order, William was in the building, but was three floors below the courtroom in a waiting area at the direction of an Immigration and Customs Enforcement official. By the time William was told he was in the wrong place, the judge had already ordered the father and son’s removal from the U.S.
In Los Angeles, an estimated 99% of the 449 cases completed on the dedicated docket as of February of this year resulted in removal orders and about 72% of those cases were issued to people who missed their court hearing — “in absentia” — according to a report released Wednesday by the Center for Immigration Law and Policy and Immigrants’ Rights Policy Clinic at UCLA School of Law
Perhaps most striking, the report shows that almost half of those in absentia removal orders are for children, many 6 and younger.
In addition, court data analyzed in the report show that an estimated 70% of people on this particular docket don’t have legal counsel. In contrast, an estimated 33% of those on the Los Angeles court’s non-accelerated docket lack legal counsel.
The nature of the accelerated dockets made it nearly impossible for asylum-seekers to get a fair hearing, the report’s authors concluded. The high absentia rate, the report concluded, is a red flag that the dedicated docket isn’t working as it should.
. . . .
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Read the rest of Cindy’s totally disturbing article at the link!
Sadly, this news will come as no surprise to readers of “Courtside.” Having watched these types ofefforts to co-opt the Immigration Courts as a vehicle of unfair, racially motivated “deterrence” and “enforcement,” I could see that this program was going to be an unmitigated disaster at EOIR, given Garland’s failure to install progressive judicial leadership and human rights and due process expertise into the broken and biased system he inherited from Sessions and Barr.
The NDPA is going to have to “dig in” and fight Garland and Mayorkas every step of the way, at every level of the system, to save as many lives as possible from their disgraceful continuation of a “Miller Lite” White Nationalist, anti-immigrant program of abusing and dehumanizing asylum seekers — most individuals of color and many of them children or other “vulnerable individuals.”
🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!
GOP nativists say starving Brown-skinned kids will solve all problems. Feed My Starving Children (“FMSC”) — El Salvador Creative Commons License
Bess Levin @ The Levin Report:
Bess Levin Politics & Finance Writer Vanity Fair
The United States is in the midst of a massive formula crisis affecting some of the most vulnerable members of the population: babies. A perfect storm of numerous factors—pandemic-related supply chain delays; government bureaucracy; the stranglehold that just a few companieshold on the formula market; the closure of one of the biggest formula-manufacturing plants in the country, following the recall of contaminated batches and the death of two infants—has led to a terrifying reality for parents desperate and scrambling to feed their children. People who have the time—and many don’t—are driving long distances only to find empty shelves. Private sellers are reportedly price gouging, charging customers double or triple the normal amount. Unable to find what they need, some parents have been forced to ration formula as they search, often in vain, for more. One woman toldTheNew York Times she recently found herself “freaking out, crying on the floor,” telling her husband, “Dude, I can’t feed our kids, I don’t know what to do.” The solution from Republicans, many of whom claim to be pro-life? Let the babies of undocumented parents starve. Or, at the very least, use the situation to demonize immigrants and score the cheapest of political points.
On Wednesday, Florida representative Kat Cammacktweeted a pair of photos, writing, “The first photo is from this morning at the Ursula Processing Center at the U.S. border. Shelves and pallets packed with baby formula. The second is from a shelf right here at home. Formula is scarce. This is what America last looks like.” Later, on Facebook, she claimed to have obtained the photos from a “border patrol agent” that’s been on the job for “30 years.” In the video, the congresswoman generously acknowledged that while all children deserve to eat, it’s not America’s job to feed the babies it detains.
“It is not the children’s fault at all,” Commack told her followers. “But what is infuriating to me is that this is another example of the ‘America Last’ agenda the Biden administration continues to perpetuate.” Cammack claims to be pro-life and only supports abortion in extreme cases in the first trimester, according to Fox News. She is cochair of the House Pro-Life Caucus and, naturally, is thrilled about the news that the Supreme Court is poised to overturn Roe v. Wade.
One day after Cammack’s suggestion that the migrant children the U.S. government has locked up should be forced to go hungry, Texas governor Greg Abbott jumped on the bandwagon, issuing a joint statement with the National Border Patrol Council: “While mothers and fathers stare at empty grocery store shelves in a panic, the Biden administration is happy to provide baby formula to illegal immigrants coming across our southern border…. Our children deserve a president who puts their needs and survival first—not one who gives critical supplies to illegal immigrants before the very people he took an oath to serve.” Like Cammack, Abbott would like people to believe he is “pro-life,” and signed a bill last September banning abortions after six weeks, leading to a surge of copycat legislation across the country.
Also on Thursday, Texas congressman Troy Nehls tweeted, “Baby formula should go to Americans before illegals.” (You can probably guess where Nehls stands on abortion.) And we’re sure it’ll absolutely shock you to hear that Fox News also believes migrant children should be forced to starve to death. As Media Matters’ Matt Gertznotes, a small selection of commentary from the networks’ stars over the past two days has included: “Why are we feeding illegal babies ahead of American babies?” (Jesse Watters); “These are not people that respected our borders, our laws, and our sovereignty. Why wouldn’t all of the pallets go to American families first?” (Sean Hannity); and “Once they get here, the Biden administration will give them food supplies that you can’t buy. Those would include baby formula…. How much more of this are people going to take, you wonder? It’s too humiliating” (Tucker Carlson). Fox, of course, has been a major voice in the antiabortion movement.
The rank hypocrisy of claiming to want to protect the “sanctity of life,” and then casually suggesting that some lives are less important than others aside, the entire situation these conservatives are decrying wouldn‘t actually be an issue if the right wasn’t so obsessed with imprisoning people trying to seek a better life. (While detention is not strictly the domain of Republicans— and both Joe Biden and Barack Obama were and remain happy to lock migrants up—Democrats are not the ones out there suggesting we let migrant children starve.) As the Washington Post’s Glenn Kesslernotes, federal law literally requires the government to provide food— as well as other basic human rights— to the people it detains. If conservatives don’t want to have to follow that rule, they should probably stop demanding the government throw migrants in prison, though we have a small, sneaking suspicion they won’t. Because demonizing people who weren‘t born here is quite clearly their thing, and has been for years. As Jezebel’s Caitlin Cruzwrote on Thursday: “Migrants and immigrants of all ages are the perfect boogeymen. First, they take their jobs; now they want to take food out of babies’ mouths, while also forcing women to carry their pregnancies to term. The hypocrisy is so thick I am choking on it.
Mitch McConnell: It’s the Supreme Court’s job to issue rulings Americans don’t want
One of the most outrageous aspects of the news that the Supreme Court is likely to overturn Roe v. Wade is the fact that—despite what some conservatives would have people believe—a majority of Americans believe abortion should be legal in all or most cases and want to see the landmark decision upheld. But according to Senate minority leader Mitch McConnnell? It’s the high court’s job to issue rulings that fundamentally change life in a way Americans don’t want.
Speaking to NPR, the Kentucky lawmaker claimed that the whole point of the Supreme Court is to make decisions that most of the country doesn’t agree with. “For the Supreme Court to on any issue, to reach a decision contrary to public opinion it is exactly what the Supreme Court is about,” he argued. “It’s to protect basic rights, even when majorities are in favor of something else, that happens all the time.” McConnell then chose to bizarrely point to the issue of flag burning, the prohibition of which the court ruled in 1989 was a violation of the First Amendment. “If you took public opinion polls on that issue, people would overwhelmingly support a legislative prohibition of flag burning, but the Supreme Court interpreted that as a violation of the First Amendment freedom of speech.”
Of course, letting people burn flags is not the same as taking away the constitutional right of millions of people to make medical decisions about their own bodies, but you’ll have to forgive ole Mitchy, who’s currently trying to make people forget he’s one of the key architects of the impending obliteration of reproductive freedoms. In the interview with NPR, he claimed that his yearslong singular focus on installing conservative judges was not specifically about gutting Roe but keeping out “judicial activist[s],” a conservative smear for judges who believe in things like, for example, women having the same bodily autonomy as men. “My interest in this was unrelated to any particular issue,” he said. Naturally, he also blamed the declining trust in the court not on the appointment of people credibly accused of sexual assault (which they deny), or the revelation that at least one of them is married to someone who tried to have the 2020 election overturned, but on the left.
“It’s no wonder that by politicizing the Supreme Court, like the political left has, including the Democratic leader of the Senate—it would affect their approval ratings. That needs to stop,” McConnell said. “The president, who knows better, set up a commission to study the composition of the court. The Supreme Court is not broken and doesn’t need fixing.” Unsurprisingly, the GOP leader refused to say what he would do if Republicans take back the Senate and Joe Biden has an opportunity to nominate another justice, though, of course, it should already be clear. “How that plays out on individual confirmations or legislation, I’m not prepared to announce today, but we are going to see where we can cooperate,” he said, unconvincingly.
In a unanimous ruling on a controversial issue, the Texas Supreme Court on Friday has cleared the way for the state child welfare agency to resume investigating parents and doctors who provide gender-affirming care for trans youth—actions that Governor Greg Abbott has equated to child abuse. It’s a blow to Texas families with transgender children, some of whom are departing the state or considering moves because of the threat of these investigations.
The ruling overturns a lower court’s injunction from March 11, barring state officials from pursuing Abbott’s February 22 directive that instructed the Department of Family and Protective Services to investigate “any reported instances” of a range of treatments and procedures, including the administration of hormones and puberty-blocking drugs. The parents of a transgender teen sued to stop the investigations, and in early March, District Judge Amy Clark Meachum issued a temporary order halting an investigation into the parents of the 16-year-old girl. Meachum later issued another order at the statewide level, temporarily blocking all such investigations stemming from Abbott’s directive.
In February, after Abbott issued his directive, the White House toldThe Dallas Morning News: “Conservative officials in Texas and other states across the country should stop inserting themselves into health care decisions that create needless tension between pediatricians and their patients. No parent should face the agony of a politician standing in the way of accessing life-saving care for their child.”
Sam Alito’s former Princeton classmate doesn’t think too highly of him
Millions of people have that in common with her. Per CNN:
Susan Squier, a former classmate of Supreme Court Justice Samuel Alito at Princeton University and who organized a letter protesting a leaked draft opinion that would overturn Roe v. Wade, on Thursday said she was stunned and called it “a greatest hits of misogyny.”
“When I read the document—I read all 98 pages of it, and mind you, I’m trained as a scholar of literature and medicine, and I look at nuance. And when I saw that he had smuggled into the document the wording from the Mississippi Gestational Age Act, which, as I understand it—now, I’m not a lawyer—but isn’t even law yet. And he was referring to unborn children rather than fetuses. I was just stunned,” Squier told CNN’s John Berman on New Day. “I mean, I have read a lot of medical history going back for doing literature and medicine, and his is like a greatest hits of misogyny.”
“He doesn’t consider the context,” Squier continued. “And this man was a historian at Princeton. He was a double major in history and poli sci. But it is as if he doesn’t believe history actually involves a record of things changing. Instead, it is history as, ‘let’s go back to the Salem witch trials.’ It makes me so angry.”
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Of course there is no causal connection between the U.S. nationwide formula shortage and providing the necessities of life to those in the DHS “New American Gulag.”
Nor are these asylum applicants illegally present in the U.S. Most were allowed in to pursue their legal right to asylum, after having been found to have a “credible fear.” Indeed, the “illegality” here is the DHS’s failure to recognize and carry out our legal and moral obligations to give all asylum seekers a fair opportunity to present their claims before impartial expert adjudicators.
Additionally, starving asylum seekers’ children would not in any way address the national shortage of formula. No, it would just be another gratuitous act of cruelty motivated by hate and racism. In other words, standard GOP policies.
Although most senior Biden Administration officials work hard to avoid the border and confronting scenes like this, trauma, death, destruction, and dehumanization of the world’s most vulnerable will remain as indelible parts of their toxic legacies. “Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Carrying on and defending this guy’s cruel, inhuman, deadly, dishonest, and illegal policies wasn’t part of the Biden-Harris campaign pledge. Or was it? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
“For two years, the U.S. government has illegally blocked and expelled people seeking refuge at the southern U.S. border despite U.S. laws and treaties created to protect them. Since March 20, 2020, the U.S. Department of Homeland Security (DHS) has used orders from the Centers for Disease Control and Prevention (CDC), purportedly issued under Title 42 of U.S. law, to prevent asylum seekers from requesting U.S. asylum and returning thousands to persecution, torture, and other horrific violence. In March 2022, the U.S. Court of Appeals for the D.C. Circuit found that the use of Title 42 to expel people to places where they would face persecution or torture is likely illegal, violating U.S. refugee laws and international treaty obligations.
The grave human rights abuses faced by people turned away under Title 42 continue to mount every day that U.S. officials allow this policy’s use to evade refugee law. Human Rights First has now tracked at least 9,886 kidnappings, torture, rape, and other violent attacks on people blocked in or expelled to Mexico due to the Title 42 policy under the Biden administration – a new record of suffering.
Flouting refugee protection laws as a response to the COVID-19 pandemic is not and never was justified as a public health measure. Initially issued by the CDC under orders from senior Trump administration officials and despite objections by CDC experts, the Biden administration has continued the policy for migration policy and/or political reasons, according to various reports. CDC Director Dr. Rochelle Walensky re-issued a new version of the Title 42 order in August 2021, and has subsequently repeatedly extended it. The CDC must review whether to continue, modify, or end the Title 42 order by March 30, 2022.
Epidemiologists and medical experts have exhaustivelyestablished that Title 42 does not protect public health, and in fact exacerbates the spread of COVID-19. The claimed public health justification for the Title 42 order has become even more transparently unjustified as the administration lifts other pandemic-related international travel restrictions and with mask mandates lifted in all 50 U.S. states. In March 2022, the CDC partially terminated the Title 42 order as to unaccompanied children following a federal court ruling that would have compelled the resumption of expulsions of unaccompanied children. In a notice explaining the decision, the CDC cited declining COVID-19 cases nationwide, including in communities along the U.S.-Mexico border, increased vaccination rates in the United States and countries of origin, and widespread availability of COVID-19 testing and other mitigation measures at facilities receiving migrants. Despite these factors applying equally to all people seeking refuge in the United States, the CDC has so far disingenuously maintained the Title 42 order to expel families and adults.
At this shameful second anniversary of the Title 42 policy, the Biden administration continues to illegally turn away asylum seekers without access to the U.S. asylum system. It is carrying out dangerous expulsions to countries refugees have fled, including: El Salvador, Guatemala, Haiti, Honduras, and Mexico, as well as expelling some Venezuelans to Colombia. The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families. While some Ukrainians fleeing the Russian invasion have been allowed to cross into the United States at southern border ports of entry, Customs and Border Protection (CBP) continues to cite Title 42 to illegally block others and to discriminatorily turn away many asylum seekers of other nationalities and races who have often been waiting for months or years in danger in Mexico to seek U.S. asylum protection.
The Biden administration must immediately end this disastrous policy and restart the asylum processes required under U.S. law along the border, including at ports of entry, as Human Rights First has recommended. In recent weeks, dozens of members of Congress have publicly called for an end to the Title 42 policy with Senate leadership condemning the Biden administration’s decision to continuing sending asylum seekers “back to persecution and torture” as “wrong.” The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.
How will Harris, Mayorkas, Garland, Walenksy, and other senior Biden Administration officials who have spinelessly furthered these inexcusable, illegal, abusive, and deadly anti-humanitarian policies deal with their toxic legacies? Also, Deputy AG Lisa Monaco, Associate AG Vanita Gupta, SG Liz Prelogar, and Assistant AG for Civil Rights Kristen Clarke stand out as irresponsible, “look the other way,” fundamentally flawed public officials who have failed to “rise to the occasion” in the time of democracy’s and humanity’s greatest needs! Carrying out “Miller Lite,” Jim Crow, xenophobic, racially targeted policies, often endorsing false narratives and using obvious pretexts, directed against some of the world’s most courageous, vulnerable humans, deserving of humane treatment and fair access to refuge, is “NOT OK!”
Perhaps the most telling observation about our exercise in national failure is this:
The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.
It’s not rocket science! All it would have taken to get his right would be some political courage and empowering those with the skills and vision to change the way we treat refugees, asylees, and other immigrants!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
How much of Ukraine will look like this by war’s end? Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski Creative Commons License
Weekly Briefing
briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.
Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.
ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.
Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.
WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.
NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.
NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.
RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.
AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.
Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.
NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.
Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.
Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”
Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.
Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.
LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.
LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.
LexisNexis: The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.
BIA: When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”
Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.
LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.
Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.
Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.
Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.
USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.
AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.
My Take: Ukrainian Refugees & The U.S. Response
So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.
That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.
For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?
As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html
Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.
Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.
But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.
And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?
The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed.
Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.
Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?
We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements.
Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law)to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all.
Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.
I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!
Trump Judge Mark T. Pittman has a very explicit vision of the future for brown-skinned children seeking protection from “White Nationalist Nation.” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
ThreadOpen appSee new TweetsConversationAaron Reichlin-Melnick@ReichlinMelnick🚨Absolute madness. The same day the DC Circuit rules that families can’t be expelled under Title 42 to places they will be persecuted, a federal judge in Texas just overruled the CDC and ordered the Biden administration to expel unaccompanied children. https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf…
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Read the rest of Aaron’s feed at the link.
Although the DC Circuit basically confirmed that the evidence produced by plaintiffs showed illegal returns to death and that there was little, if any, support for the draconian Title 42 exclusion order, the relief granted was unacceptably narrow. The order merely directed the Administration to cease returning individuals to countries where they would be persecuted or tortured.
That order is weak because:
It doesn’t specify any particular fair procedure that must be followed by DHS in determining who faces persecution or torture. That appears to leave open the possibility of DHS employing bogus “summary determinations by enforcement agents” rather than using Asylum Officers and having cases referred to Immigration Courts.
There are no limits on the Government’s ability to detain individuals and/or return them to other countries.
The standard for so-called “withholding of removal” to persecution is “more likely than not” as opposed to the more generous “well-founded fear” or “reasonable possibility” standard for asylum (although individuals should be able to invoke the regulatory “presumption of future persecution” arising out of past persecution).
Even if granted, withholding of removal does not provide individuals with “durable legal status” nor does it allow them to access the asylum system, from which they apparently would remain barred under Title 42.
Judge Mark T. Pittman of the Northern District of Texas is a Trump appointee with strong ties to the Federalist Society and a very loose grasp on domestic and international laws and procedures for protecting children.
It’s interesting, if disheartening, to compare the “overt wishy-washiness” of the DC Circuit Judges who were timidly, “sort of” trying to protect at least some minimal legal and human rights with the “in your face,” overtly anti-immigrant, arrogant tone and ridiculous self-assuredness with which activist righty District Judge Mark Pittman advanced his absurdist notion that the White Nationalist agenda of “protecting” America from the “non-threat” of brown-skinned children merited his simultaneous assumption of the roles of President, Secretary of DHS, Attorney General, and for a good measure, Congress.
Obviously, the “judicial restraint,” supposedly a hallmark of modern conservatism, was just a “smoke screen” for the GOP’s activist anti-social, anti-immigrant, racially charged agenda. That’s not news to many of us, although it seems to have gone “over the head” of many in the Biden Administration and many Dems on the Hill.
It shows once again why “Team Garland’s” indolent, often uninformed, and floundering approach to immigrant justice under law is being steamrolled by Trump holdovers and crusading right-wing Federal Judges. And, you wonder why Dems can’t figure out what they stand for and what their “line in the sand” is!
Meanwhile, back at the ranch, Garland and other weak-kneed Biden officials can’t decide how much of the leftover “Miller Lite” anti-asylum, anti-humanitarian, anti-due-process policy they want to retain and defend and how much effort, if any, they want to put into re-establishing human rights and the rule of law.
One observation: After more than one-year in office, the Biden Administration is no closer to having an orderly, functional, due-process-oriented asylum system in place and ready for the border than they were on January 20, 2021! The expert Asylum Officers and qualified Immigration Judges who are necessary to operate such a system are still few and far between, and the program to facilitate legal assistance for those seeking legal protection at the border is all but non-existent.
We would like to cordially invite you to the launch party of CLAW, “Cancellation and Life after Winning” at the CLAW headquarters located at 11710 Bowman Green Drive, Reston, VA 20190 on Sunday, February 27, 2022 at 4 pm.
What is CLAW?
CLAW is a campaign initiated by teenager and immigration activist, Neela Nesari. The campaign aims to bring about a change to increase the 4000 limitation cap on 240A cancellation cases.
Neela is initiating an awareness month about this issue in March of 2022 and needs your help. The goal is to educate, organize and advocate for legislative changes to the immigration system with respect to the defense of cancellation of removal.
We are very excited to announce that CLAW has secured the enthusiastic support of renowned former immigration judge and former chairman of the BIA, Honorable Judge Paul Schmidt, who will be the guest of honor at CLAW’s launch party.
We look forward to your support for this worthy cause. As immigration attorneys and advocates, we know too well that a 42b cancellation case doesn’t just end at the Individual Hearing and our clients face a long road ahead before they can become permanent residents. Why not do something about it?
*Practice outside of NY limited to Federal Immigration Law.
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Unfortunately, in the bizarre and counterintuitive world of U.S. immigration law and our broken Immigration Courts, winning your case, no matter how satisfying, is “only half the battle!” These amazing young people understand how unfair and counterproductive that is and are “walking the walk, not just talking the talk.” Come be inspired by folks who believe in and act for a “Better America” for all of us!
The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punitive excess that has come to define America’s criminal legal system.”
In her article, Chacón acknowledges that “our immigration laws are exceptionally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immigrate is just not true.” Moreover, “our country has not always honored its own legal processes when immigrants are doing things ‘the right way.’” And, for those “long-time lawful permanent residents who have contact with the criminal legal system are often denied the chance to do things ‘the right way.’”
“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sundering of families and communities that would, in other circumstances, seem unthinkable.”
Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!
But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.
But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.
Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!
Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.
Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” —preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!
Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!
Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”
During his confirmation hearing to be attorney general, when asked about the Trump administration’s policy of separating children from their parents at the U.S.–Mexico border, Merrick Garland repudiated the policy, stating “I can’t imagine anything worse.”
Yet, now that he is confirmed, Attorney General Garland presides over an agency that represents the U.S. government in court arguing every day that parents should be separated from their children, brothers from sisters, grandchildren from grandparents.
Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.”
“Justice” Star Chamber Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”
Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮
And, there will be no true racial justice in America without justice for immigrants!
Mica Rosenberg National Immigration Reporter, Reuters
Hi there all,
I wanted to share with you our latest Reuters investigation about unaccompanied minors released to the town of Enterprise, Alabama where the chicken industry is booming and we profiled a teen who easily found work after she was released from federal custody. We detail how last summer U.S. Department of Health and Human Services temporarily halted releases from shelters to the town, as several federal agencies probed whether migrants were at risk. While no child trafficking has been found, labor exploitation of migrants there is being investigated.
This follows our coverage of the reunification of one migrant family separated in 2017 at the U.S.-Mexico border under Trump’s “zero tolerance” policy who was reunited in January. We have been in touch with the family since 2020.
Here is the story with a graphic that shows the scale of the work of the Biden administration’s reunification task force:
We also were able to report on another heartwarming reunion, after a family lost their baby in the chaos of the evacuation of Afghanistan. Our story published last November helped lead to tips that located the baby in Kabul so he could be reunited with relatives there and hopefully soon taken to the United States to join his parents who have resettled in Michigan:
New arrivals in South Portland schools bring challenges and joy
With asylum seekers arriving in Portland housed in South Portland hotels, South Portland schools gear up for more English language learners and celebrate the excitement they bring.
Divine Nsimba Lukombo 12, left, an 8th grader from the Democratic Republic of Congo, and 7th grader Odett Mavezo Junizi 12, also from the Congo, work together in a science class at South Portland’s Memorial Middle School.
When classes started this year at Memorial Middle School in South Portland, there was just one humanities class for students beginning to learn English. Now there are three.
The school has rearranged the schedules of English language teachers, added an additional part-time English language teacher and upped the hours of a second teacher.
It has limited new enrollments because it has no more space and is relying on the middle school on the other side of the city to absorb any additional students who come into the district.
“We’re just supporting way more kids in those English language learning classes,” said Principal Rebecca Stern.
The changes are necessary because the school district is seeing an influx of English language learner students driven by the arrival of asylum seekers from African countries. It’s hard to know exactly how many of the students are asylum seekers, but officials in South Portland say the increases they’re seeing stem from the placement of many asylum-seeking families in emergency shelter in local hotels.
Since the start of the school year, the South Portland School Department has served 305 homeless students. That’s up from 180 last school year and just 34 in 2019-20. The school system has 522 English language learner students, compared to 328 last year. And overall enrollment now is at 3,021 students, up from 2,887 in October.
English Language Learner teacher Kara Kralik works with students at Memorial Middle School in South Portland last week. Shawn Patrick Ouellette/Staff Photographer
South Portland is one of five communities where the city of Portland is placing asylum seekers in hotels because of a shortage of shelter space and housing.
Portland officials reported earlier this month that new arrivals had driven the highest ever nightly averages of people in need of shelter. In the first three weeks of January, 39 families needing shelter arrived in Portland – about one-third the number the city saw in all of 2020.
School officials in Portland and some surrounding communities like Old Orchard Beach and Brunswick, which are currently housing asylum seekers or have in the past, said they aren’t seeing increases in new students. Freeport, which is housing some new arrivals from Portland, has seen a small one.
“I would argue that right now we are the most impacted school district in the state when it comes to new families, many of whom do not speak English and are housing vulnerable,” said South Portland Superintendent Tim Matheney.
Schools across the district – from elementary to high school – have mobilized to welcome the newcomers. Most come from Angola and the Democratic Republic of Congo and have spent months or even years traveling to the United States to escape violence or instability in their home countries. And many have missed long periods of school as a result.
Teaching the students English, enrolling them in classes and making sure basic needs such as housing, food and warm clothing are being met present challenges. Schools need to hire more staff – English language teachers, social workers.
But the new students are making their schools far more diverse and filling them with excitement during a challenging year.
“In America right now, as we go through the pandemic and how education looks post-pandemic, people are really sad,” said South Portland High School Principal Michele LaForge. “The anxiety of our students and our staff is really high. This has been a really hard time and it continues to be hard.
“Our new Mainers, in a lot of ways, the hardest thing they’ve ever experienced is behind them. So there’s this energy around these new students. They’re just so delighted to be here. They’re never absent. They’re excited every second of every day.”
FILLING IN THE LEARNING GAPS
At Memorial Middle School on a recent morning, English language learner teacher Elizabeth Dawson worked with a dozen students in a math class for newcomers. Just the week before, Dawson had been assigned a new sixth-grade student who hadn’t been in school for five years. She said it’s not unusual for students to have large gaps in their education, and it’s her job to catch them up.
“In all of our classes we have this philosophy of addressing language skills and gaps, but we also know these students are 14,” Dawson said. “They’re cognitively and developmentally middle school students, so we also need to make sure our content is challenging them on a seventh-grade level.”
Tanya Nsumu, 12, left, originally from the Democratic Republic of Congo works with Maria Bikuma, 14, from Angola during math class last week at Memorial Middle School in South Portland where there is an influx of asylum-seeking students. Shawn Patrick Ouellette/Staff Photographer
Maria Bikuma and Tanya Nsumu, two students in Dawson’s class, sat in the back munching on breakfast as their teacher led them in a word problem that everyone read aloud together. Bikuma, who is from Angola and arrived in Maine over the summer, said she is enjoying making new friends and being in school.
“I like America because it’s a good country,” said the eighth-grader. “I can study here and the teachers are good.”
Because she speaks English well, Bikuma often acts as a translator between teachers and her fellow students who are new to the country and whose first language is most often Portuguese or French. She said the teachers are patient and more involved in helping students than in Angola, where students were more self-directed.
“People understand quickly because the teachers explain very good,” Bikuma said.
Nsumu also arrived over the summer, from the Democratic Republic of Congo. She left her home country when she was just 6 years old and spent time in South America, Mexico and Texas. When she arrived in Maine, she spoke no English, though that has quickly changed.
“Here is different because I have a new teacher that teaches good,” said the seventh-grader. “I have an iPad. I have a new life.”
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Read the rest of Rachel’s article at the link.
When I was a judge, I was often inspired by the amazing young people who came before me. Some of them had literally walked to the US, on perilous journeys, encountering unimaginable, sometimes unspeakable, hardships and trauma.
Their courage, life skills, and problem solving abilities were truly remarkable. Once here, many were helping their families while going to school and assisting their lawyers with their cases. Some were also involved in sports, music, or other extracurricular activities. (When I heard applause from my colleague Judge John Milo Bryant’s courtroom, I knew that was for another student-athlete or academic achievement.)
I often could see both English language proficiency and school grades improve from one court appearance to another. I invariably asked students about their progress in school. Many brought report cards to the next hearing to show me how they were doing.
I always told kids that no matter how their cases eventually came out, their education was theirs for life. So, I challenged them to take full advantage. And, most appeared to do so!
I saw some of them literally grow up and come of age in court and go on to contribute to our country and our communities while continuing to take outsized responsibilities for families. Many came from homes where the parents were both working two jobs to help forge better lives for their children.
Many of these cases eventually had happy endings. When they did, I always encouraged the younger generation to pay it back by helping their parents and insuring that they had the time, encouragement, and support to meet the requirements for naturalization so that they could become full participants in their communities and our nation.
Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.
The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.
Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.
“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”
The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.
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But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.
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Read the full article at the link.
“Awkward” seems like a “sanitized term” for “duplicitous and immoral!”
So, I assume that the Dems who are unwilling to stand up for progressive values and the human rights of migrants will look to their GOP nativist, White Nationalist buddies for contributions and votes come election time. Contrary to DOJ’s misrepresentation to the courts, individuals regardless of status had a statutory and treaty right to seek protection in the U.S. regardless of manner of entry. The unconstitutional Sessions/Miller scofflaw conduct was intended to punish and deter individuals from asserting and vindicating their legal rights.
Additionally, so-called “illegal entries” are to a large extent fueled by illegal policies by both the Biden and Trump Administrations of not having an operating, fair, timely asylum system at legal ports of entry. This has been compounded by failure of both Administrations to establish robust, fair refugee processing systems for Latin America in the regions where the refugee situations are generated.
I have a different perspective: A party afraid to stand up for the values of its core constituency stands for nothing at all! And we already have a major “party of no values.” So, the “competition” for the “no values voters” might already be over.
Disgusting as the anti-democracy, White Nationalist GOP is, I must say that they know who their supporters are and aren’t afraid to act accordingly. Just who are the Dems representing in this disgraceful and cowardly race to the bottom being led by Garland and Mayorkas (with an assist from Vice President “Die in Place” Harris)?
The Biden Administration’s “policy” of abandoning asylum seekers and allowing the Immigration Courts to operate dysfunctionally with mostly “holdover judges” and ever-mushrooming backlogs hasn’t proved to be a “political winner” to date. So, why do the tone-deaf Dems pushing it believe it will help them in November?
Hopefully, at least some Federal Courts will see through Garland’s disingenuous smokescreen and stick the DOJ & DHS with judgements much larger than the ones they were afraid to agree to in settlement.
The Garland DOJ continues to squander time, resources, and goodwill by filling the Article IIIs withill-advised “Stephen Miller Lite” litigation positions. And, these are the folks progressives are depending on to vindicate voting rights and hold the leaders of the insurrection accountable? Good luck with that! Garland appears to be too busy defending Stephen Miller’s policies to effectively push progressive, due-process-oriented positions in the Article IIIs or reform his wholly owned, totally dysfunctional Immigration “Courts.”
So, what’s the “dollar value” of brown-skinned human lives to Biden, Harris, & Garland? We’re about to find out! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.
President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”
Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.
The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.
The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.
Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.
Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.
By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.
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Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!
“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.
The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!
If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand upfor the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!
For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”
As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)
It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.
