🇺🇸🗽EUGENE ROBINSON @ WASHPOST — Biden Must Do The Right Thing For Kids At The Border — Their Best Interests Are Our Best Interests!

 

Eugene Robinson
Eugene Robinson
Opinion Columnist
Washington Post
Source: WashPost Website

https://www.washingtonpost.com/opinions/biden-migrant-surge-stop-child-detention/2021/03/11/99d9a7e4-8295-11eb-9ca6-54e187ee4939_story.html

. . . .

So the Biden administration needs to do two things. First, it needs to create more shelter space, at least in the short term. Reopening a mothballed, 700-bed Trump-era shelter for migrant teens in Carrizo Springs, Tex. — a step the Department of Health and Human Services took last month — was probably necessary, but it’s not a good look for an administration trying to turn the page. New shelters are needed, and they must be put into service with the same urgency the administration summons for coronavirus vaccination centers.

The other thing the administration must do is move children out of the shelters into family or sponsor custody faster. This is mostly a matter of bureaucratic efficiency. Many of these “unaccompanied” minors actually were accompanied when they crossed the border, but by their grandparents, aunts, uncles or older siblings — not their parents. Biden needs to flood the zone with enough investigators, lawyers and other personnel to speedily determine that these relatives are in fact relatives, not traffickers, so these families can be promptly reunited.

Just as Biden and his aides decided to err on the side of doing too much rather than too little on covid-19 relief, they should go big on the border. When the pandemic does end, existing shelter space should be enough to handle the kind of surge we’re seeing now — but that day could be many months away. The system is overloaded this minute.

As a matter of politics, it is unwise for Biden to give Republicans fodder for demagoguery about a supposed border “crisis.” It is equally unwise to give progressive Democrats any reason to complain that his border policy is less than a complete departure from Trump’s.

And as a matter of policy, Biden must keep his eye on one guiding star: We are talking about the lives and well-being of children. It is nothing less than our duty to love and care for them as if they were our own.

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

Read Eugene’s full op-ed at the link. 

In addition to asking for DHS volunteers, another idea is to quickly rehire retired Asylum Officers, Refugee Officers, and Immigration Inspectors to help out on a temporary basis.

Eugene’s article reminds me of one of my first essays that I published on Courtside in 2016, set forth in full here (originally published by Dan Kowalski in LexisNexis Immigration Community) :

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

By Paul Wickham Schmidt

They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.

I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”

Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.

Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.

For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.

Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.

To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.

Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”

Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.

The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied

2

children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.

Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.

Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.

It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.

The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.

Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather

3

than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.

Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.

The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.

The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.

4

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

🇺🇸⚖️🗽Due Process Forever!

PWS

03-13-21

🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

Kangaroos
Anybody remember the last time we interpreted the law or facts in favor of a human? 
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Here are four more recent screw-ups:

  1. Misinterpreting “Realistic Possibility” — 8th Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-realistic-probability—lopez-gonzalez-v-wilkinson

CA8 on “Realistic Probability” – Lopez Gonzalez v. Wilkinson

Lopez Gonzalez v. Wilkinson

“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”

[Hats off to Jamie Arango!]

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

Cuthill v. Blinken

https://www.ca2.uscourts.gov/decisions/isysquery/05b681bb-4767-4cf6-b370-6f0ee77ad5d2/3/doc/19-3138_opn.pdf

D. Chevron Deference

Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and

33

legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

https://www.ca10.uscourts.gov/opinions/20/20-9520.pdf

Ni v. Wilkinson, unpublished

After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded

2

again that Mr. Ni had failed to show a material change in country conditions.

This conclusion is unsupportable. Mr. Ni’s evidence of worsening

conditions in China largely mirrored his wife’s evidence, which had led us

to grant her petition for review. Mr. Ni’s evidence was even stronger than

his wife’s because China had recently adopted a regulatory crackdown on

practicing Christians. We thus grant Mr. Ni’s petition for review.

4) Misconstruction Of Record — 1st. Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-albania-changed-circumstances-lucaj-v-wilkinson

CA1 on Albania, Changed Circumstances: Lucaj v. Wilkinson

Lucaj v. Wilkinson

“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”

[Hats off to Gregory G. Marotta!]

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

America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!

Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!

See, e.g., https://immigrationcourtside.com/2021/03/11/%e2%9a%96%ef%b8%8f%f0%9f%97%bdu-s-district-judge-susan-illston-nd-ca-shreds-enjoins-eoirs-anti-due-process-%e2%98%a0%ef%b8%8f%f0%9f%a4%aemidnight-rules-judge-p/

Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field. Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars! 

See,e.g.,  https://immigrationcourtside.com/2021/03/08/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8finside-a-failed-and-unjust-system-reuters-report-explains-how-the-trump-administration-destroyed-due-process-fundamental-fairness-humanity-in-the-u-s-immig/

The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!

Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!

Judge Garland must “clean house!” Now!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-12-21

THE GIBSON REPORT — 03-08-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — TPS For Venezuelans, Border Issues, Among The Headlines!

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.

 

USCIS Office Closings, Including Weather

 

TOP NEWS

 

Texas family detention centers expected to transform into rapid-processing hubs

WaPo: The Biden administration is preparing to convert its immigrant family detention centers in South Texas into Ellis Island-style rapid-processing hubs that will screen migrant parents and children with a goal of releasing them into the United States within 72 hours, according to Department of Homeland Security draft plans obtained by The Washington Post.

 

Biden extends protective status to thousands of Venezuelan migrants

WaPo: The Biden administration on Monday declared an estimated 320,000 Venezuelan migrants in the United States eligible for temporary protected status, a category of legal residence that would open a path to U.S. citizenship for them under the immigration bill President Biden sent to Congress last week.

 

ICE Is Adding A New Appeals Process For Immigrants Who’ve Been Detained

BuzzFeed: The new program, which establishes the ICE Case Review Process led by a senior reviewing officer based in Washington, DC, is part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works but which immigrants are arrested and detained.

 

ACLU asks DHS to take action on complaints of abuse, misconduct by U.S. border agents

NBC: The allegations were detailed in 13 complaints the ACLU filed against Customs and Border Protection, or CBP, during the Trump administration. The lawyers said in a letter that so far they have no indication that any action has been taken either to punish the officers or to reform the agency to prevent abuse and respond to such allegations.

 

‘Not quite ready yet’: Democrats won’t take up Biden immigration plan this month

Politico: The issue of what to do with Biden’s comprehensive immigration plan has bedeviled Speaker Nancy Pelosi and her leadership team, particularly after a disappointing whip count came back this week showing they don’t yet have the votes to pass the bill on the floor, according to people familiar with the talks.

 

In 2019, the US Undocumented Population Continued a Decade-Long Decline and the Foreign-Born Population Neared Zero Growth

CMS: The undocumented population continued to decline in 2019, falling by 215,000 compared to 2018; this population has declined by 1.4 million, or 12 percent, since 2010.

 

Special Report: How Trump administration left indelible mark on U.S. immigration courts

Reuters: The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Supreme Court Affirmed CA8 Decision on Cancellation and Inconclusive Criminal Records

The Supreme Court affirmed the Eighth Circuit decision, and found that under the INA, certain nonpermanent individuals seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. (Pereida v. Wilkinson, 3/4/21) AILA Doc. No. 21030435

 

Supreme Court Ends ‘Sanctuary City’ Fight Over Grant Funds

Law360: The U.S. Supreme Court dropped a trio of lawsuits concerning state and local cooperation with federal immigration authorities, winding down a yearslong battle during the Trump administration over so-called sanctuary cities.

 

CA1 Finds BIA Applied Incorrect Standard in Determining That LCA Filed Was Not “Approvable When Filed”

The court held that determining whether a labor certification application (LCA) is approvable when filed requires a holistic inquiry, and found that the BIA had failed to keep its focus on that inquiry in the course of its evaluation of the petitioner’s LCA. (Oliveira v. Wilkinson, 2/22/21) AILA Doc. No. 21030336

 

1st Circ. Won’t Vacate Conviction Tied To Rwandan Genocide

Law360: The First Circuit denied a Rwandan woman’s habeas corpus petition on Wednesday, finding that a faulty jury instruction that had led to her criminal conviction would not have yielded a different outcome if corrected.

 

CA2 Says Petitioner’s Belief That Gangs Are Bad for His Town and Country Is Not a Political Opinion for Asylum Purposes

The court held that the petitioner’s negative view of gangs did not amount to a political opinion for asylum purposes, and that substantial evidence supported the BIA’s decision that he did not establish a likelihood of future torture in El Salvador. (Zelaya-Moreno v. Wilkinson, 2/26/21) AILA Doc. No. 21030834

 

CA3 Finds Conviction for Strangulation in Pennsylvania Is a Particularly Serious Crime

The court found that the BIA correctly determined that the petitioner’s Pennsylvania conviction for strangulation was a particularly serious crime, and concluded that the agency’s adverse credibility finding was supported by substantial evidence. (Sunuwar v. Att’y Gen., 2/25/21) AILA Doc. No. 21030835

 

CA4 Finds BIA Improperly Discounted Honduran Petitioner’s Corroborating Evidence in Support of Asylum Claim

Where petitioner asserted that she and her husband had been subjected to death threats by a gang in Honduras, the court held that the BIA had improperly discounted her corroborating evidence, including affidavits, burial permits, and other documentation. (Arita-Deras v. Wilkinson, 3/4/21) AILA Doc. No. 21030837

 

CA8 Finds Petitioner Had No Constitutionally Protected Interest in Receiving Second Try at Cancellation of Removal Proceeding

The court upheld the BIA’s decision denying petitioner’s motion to reopen, finding she did not have a constitutionally protected interest in receiving a second try at a cancellation of removal proceeding because a grant of relief would be discretionary. (Baker White v. Wilkinson, 3/4/21) AILA Doc. No. 21030838

 

CA9 Says Federal Conviction for Dealing in Firearms Without a License Is an Aggravated Felony

The court held that the petitioner’s conviction for importing, manufacturing, or dealing in firearms without a license was categorically an “illicit trafficking in firearms” aggravated felony under INA §101(a)(43)(C) that rendered him ineligible for asylum. (Chacon v. Wilkinson, 2/18/21) AILA Doc. No. 21030337

 

CA9 Says BIA Erred in Finding Somalian Petitioner Did Not Qualify for Exception to Firm Resettlement Bar

The court held that the BIA erred in finding that the petitioner did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he had suffered past persecution in Somalia on account of a protected ground. (Aden v. Wilkinson, 3/4/21) AILA Doc. No. 21030844

 

CA9 Grants Remand and Withdraws Previously Filed Opinion in Enriquez v. Barr

Withdrawing its 8/13/20 opinion, the court granted the respondent’s unopposed motion to remand to the BIA for reconsideration of whether the petitioner’s California conviction for attempting to dissuade a witness constitutes a crime of moral turpitude. (Enriquez v. Wilkinson, 3/1/21) AILA Doc. No. 21030843

 

CA9 Holds That Conviction for Simple Possession of Cocaine in California Was a Controlled Substance Offense

The court upheld the BIA’s finding that petitioner’s 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code §11350 qualified as a “controlled substance offense” rendering him removable under INA §237(a)(2)(B)(i). (Lazo v. Wilkinson, 2/26/21) AILA Doc. No. 21030842

 

CA9 Holds That Amendment to §18.5 of the CPC Cannot Be Applied Retroactively for Purposes of INA §237(a)(2)(A)(i)

The court held that an amendment to §18.5 of the California Penal Code (CPC), which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under INA §237(a)(2)(A)(i). (Velasquez-Rios v. Barr, 10/28/20, amended 2/24/21) AILA Doc. No. 20110236

 

CA9 Finds BIA Erred in Asylum Nexus Analysis as to Petitioner Who Fled Mexico Due to Drug Cartel’s Threats

Granting in part the petition for review, the court concluded that substantial evidence did not support the BIA’s determination that petitioner was not persecuted on account of her membership in her proposed social groups—her family and property owners. (Naranjo Garcia v. Wilkinson, 2/18/21) AILA Doc. No. 21030335

 

BIA Rules Conspiracy to Commit Visa Fraud in Violation of 18 USC §§371 and 1546(a) Is a CIMT

The BIA ruled that a conviction for conspiracy to commit visa fraud in violation of 18 USC §§371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach. Matter of Nemis, 28 I&N Dec. 250 (BIA 2021) AILA Doc. No. 21030839

 

District Court Finds Plaintiff Paroled into United States Based on TPS Was an “Arriving Alien”

The court held that because the plaintiff had been paroled into the United States within the meaning of the INA based on her Temporary Protected Status (TPS), she was an “arriving alien,” and ordered USCIS to reopen her adjustment application and adjudicate it. (Michel v. Mayorkas, 3/2/21) AILA Doc. No. 21030833

 

ICE Is Told To Vaccinate Detainees Or Risk Release Order

Law360: A New York federal judge says he would consider ordering U.S. Immigration and Customs Enforcement to release vulnerable individuals from its Batavia detention center if that is the only way they can get access to the COVID-19 vaccine.

 

DC Judge Baffled Why DOJ Won’t Stay Immigration Court Rule

Law360: The U.S. Department of Justice won’t agree to hold off on enforcing an overhaul of the immigration court appeals process that was crafted in the last months of the Trump administration, and the D.C. federal judge overseeing a challenge to the new rule can’t see why.

 

ICE Announces Creation of ICE Case Review Process

ICE announced the creation of the ICE Case Review process for individuals who believe their case does not align with ICE’s enforcement, detention, and removal priorities. AILA Doc. No. 21030590

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, March 8, 2021

Sunday, March 7, 2021

Saturday, March 6, 2021

Friday, March 5, 2021

Thursday, March 4, 2021

Wednesday, March 3, 2021

Tuesday, March 2, 2021

Monday, March 1, 2021

 

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

Thanks, Elizabeth!

PWS

03-09-21

WOMEN’S REFUGEE COMMISSION BIDS FOND FAREWELL TO NDPA 🌟 SUPERSTAR MICHELLE BRANÉ AS SHE TAKES KEY POSITION WITH BIDEN ADMINISTRATION! — “We can’t imagine a better person at the helm of the family separation task force. It’s a smart move by the Biden administration, and a massive win for the nation and for separated families.“

 

pastedGraphic.png
pastedGraphic_1.png
Dear Paul,

I am extremely proud to let you know that Michelle Brané, long-time director of the Women’s Refugee Commission’s Migrant Rights and Justice program, is headed to the Biden administration—effective immediately—to serve as executive director of the newly formed Interagency Task Force on the Reunification of Families. The task force is charged with identifying and reuniting families that were cruelly separated under the Trump administration.

In Michelle’s 14 years at WRC, she built our Migrant Rights and Justice program from the ground up. She and her team have been trailblazers in the work to protect the rights of women and girls seeking asylum in the United States.

READ OUR STATEMENT
pastedGraphic_2.png
pastedGraphic_3.png
pastedGraphic_4.png Forward this email to a friend.
pastedGraphic_5.png
pastedGraphic_6.png
pastedGraphic_7.png
pastedGraphic_8.png
pastedGraphic_9.png
Copyright © 2021 Women’s Refugee Commission, All rights reserved.

The Women’s Refugee Commission is a 501(c)(3) organization.
Donations are deductible to the full extent allowable under IRS regulations.

You are receiving this email because you joined our mailing list online or at an event.

Women’s Refugee Commission

15 West 37th Street, 9th Floor

New York, New York 10018

Add us to your address book

Update Preferences | Unsubscribe | View in Browser

pastedGraphic_10.png*********************

Here’s the link to the full WRC press release:

https://www.womensrefugeecommission.org/press-releases/michelle-brane-tapped-for-biden-administration/

An truly inspired and very encouraging choice by the the Biden Administration! The only “downside” — I had Michelle on my “shortlist” for key judicial or executive positions at the “New EOIR,” as well as for an Article III judicial appointment! But, that still could and should happen when her a work at the Interagency Task Force is done! 

Michelle is a prime example of the “new generation” of due-process-oriented leaders that the NDPA produces! Brilliant, tough-minded, battle-hardened, “practical scholars,” experts, and innovative managers who will see the battle for social justice through to success, no matter how long it takes. Her background, starting at the BIA, also demonstrates how Judge Garland could and must remake EOIR into a “model judiciary” that attracts, trains, and exports the “best and the brightest” for high level judicial and policy positions.

But, it’s not going to happen unless the current awful mess at EOIR is replaced with “Michelle caliber experts” from the NDPA.

Congrats again, Michelle. You make us all proud!

🇺🇸5🗽⚖️Due Process Forever!

PWS

03-01-21

CNN’S CHRISTIANE AMANPOUR INTERVIEWS NDPA SUPERSTAR 🌟 ANDREA MARTINEZ ON NEED FOR BIDEN’S IMMIGRATION REFORM BILL!

Amanpour & Martinez
CCN Anchor Christiane Amanpour & Immigration Attorney Andrea Martinez
SOURCE: CNN

Watch this video clip from CCN:

https://apple.news/A5fldUh3pTnWBhjhXUz6QOg

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

Thanks for speaking out Andrea! Andrea is a former Arlington Immigration Court intern and one of the “charter members” of the NDPA. As captured on this video, she was assaulted by ICE while trying to assist her child client in reuniting with his mother! A civil suit against the agent involved is pending.

🇺🇸🗽⚖️Due Process Forever!

PWS

02-27-21

CNN: Some Separated Families Reunited; Biden Restores Legal Immigration; “Remain in Mexico” Phaseout Begins!

Priscilla Alvarez
CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN

Immigration

 

Lawyers are slowly making progress in locating and reuniting children and families separated at the southern US border as part of the Trump administration’s “zero tolerance” immigration policy. A month ago, the parents of 611 children had yet to be located. Now, that number is down to 506. President Biden this month signed an executive order establishing a new task force designed to identify and reunify these separated families. Meanwhile, the Biden administration has lifted an order that temporarily banned certain immigrant visas during the pandemic and will begin admitting some of the hundreds of migrants held in deplorable conditions in tent camps as part of a policy requiring them to stay in Mexico until their US court dates. Both these decisions are reversals of controversial Trump-era policies.

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

Progress on restoring the rule of law at the border and in our legal immigration system, although many advocates yearn for much faster remedial action. Links to more detailed analysis, much of it by CNN All-Star 🌟 Immigration Reporter Priscilla Alvarez, are embedded in the above CNN summary.

🇺🇸⚖️🗽Due Process Forever!

PWS

02-25-21

⚖️🗽A FAIR ASYLUM SYSTEM THAT TREATS HUMANS WITH “EMPATHY, DIGNITY, & RESPECT” – It’s What Our Constitution, Laws, & Values Require – Every Day, As A Nation, We Violate These Basic Principles – When Will It Change? – A New Human Right First (“HRF”) “Video Short,” Narrated By Clara Long, Shows The Unnecessary Human Misery We Cause That Can Never Be Undone!

Clara Long
Clara Long
Associate Director
US Program
Human Rights First
PHOTO: HRF website

 

Here’s the video:

 

https://youtu.be/USIKjkzTS7U

 

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

It’s not “rocket science.” Actually, just carrying out our current legal and moral obligations. It’s well within our capabilities, particularly with the right people in charge. Why wasn’t a plan to get this done “front and center” in Judge Garland’s testimony today?

 

🇺🇸⚖️🗽Due Process Forever! Human misery doesn‘t stop for “study.” Not all damage and harm is reversible! What if it were YOU and YOUR family?

 

PWS

 

02-22-21

⚖️🗽🇺🇸👨🏻‍⚖️JUDGE GARLAND’S STATEMENT: Lots Of Nice Words, Lofty Ideals, Few Specifics On How He Will Shape The Actual Work Of Broken & Dysfunctional DOJ — No Mention Of How He Will Address The Ungodly Immigration Mess @ EOIR!

Judge Merrick Garland
Judge Merrick B. Garland
Official White House Photo
Public Realm

. . . .

The President nominates the Attorney General to be the lawyer — not for any individual, but for the people of the United States. July 2020 marked the 150th anniversary of the founding of the Department of Justice, making this a fitting time to remember the mission of the Attorney General and the Department.

It is a fitting time to reaffirm that the role of the Attorney General is to serve the Rule of Law and to ensure equal justice under the law. And it is a fitting time to recognize the more than 115,000 career employees of the Department and its law enforcement agencies, and their commitment to serve the cause of justice and protect the safety of our communities.

If I am confirmed, serving as Attorney General will be the culmination of a career I have dedicated to ensuring that the laws of our country are fairly and faithfully enforced, and that the rights of all Americans are protected.

. . . .

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and

climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission.

Here’s the full statement:

https://www.scribd.com/document/495370966/Read-Merrick-Garland-Testimony

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

At the opening of the hearing, he told Senate Judiciary Chairman Dick Durbin (D-IL):

Garland also distanced himself from the Trump administration’s child separation immigration policy, calling it ‘shameful’ and committing to aiding a Senate investigation into the matter.

‘I think that the policy was shameful. I can’t imagine anything worse than tearing parents from their children, and we will provide all of the cooperation that we possibility can,’ Garland told Senate Judiciary Chairman Dick Durbin.

https://www.cnn.com/2021/02/22/politics/merrick-garland-confirmation-hearing-day-1/index.html

Star Chamber Justice
“Justice”
Star Chamber
Style

Yet, the harsh reality is that the DOJ is still actively engaged in furthering the operation of “Baby Jails” and “Family Gulags.” Indeed, disgracefully, the DOJ’s EOIR actually operates “judicial star chambers” euphemistically called “Detained Immigration Courts” in DHS Gulags throughout America. 

There, bonds are unconstitutionally denied, the right to legal representation is aggressively hindered and discouraged, some individuals have their asylum claims wrongfully denied, while others are pressured under duress into giving up their legal rights.  

As all of this is ongoing, EOIR’s so-called “judges” assert that they “lack power” to examine the life-threatening, dangerous, unconstitutionally substandard conditions and abusive custody present throughout the “New American Gulag” operated by DHS that they serve. (How do “judges” work for the AG under the Due Process Clause of our Constitution?)

What kind of “courts” are these? What does Judge Garland intend to do to stop official child abusers and illegal and unethical “civil detention?”   

Judge Garland’s tone is an obvious improvement over the past two turkeys 🦃  to hold the job! But, words are words; actions are what counts! Unfortunately, I couldn’t discern any “plan of action” here!

Without being unduly picky:

    • You should have said “This President nominates;” obviously, the last one did view the AG as his personal lawyer and the DOJ as just another of the many law firms on his retainer — one working pro bono at the people’s expense against the people’s interests — how perverted is that; 
    • In a way it’s nice and expected to acknowledge the many hard-working civil servants in the DOJ; but, the reality is that far too many of them were part of the problem — failing to stand up for “the people’s” (actually, as you know, immigrants regardless of status are “persons” under our Constitution — real, live, breathing, feeling “people” if you will) individual rights and ignoring their oaths of office to carry out the White Nationalist, anti-democracy agenda of the past regime; like it or not, Judge, if you are going to turn your elevated thoughts into policy and practice, you are going to have to deal with the folks who “went along to get along” over the past four years; like it or not, you’re going to need a broom 🧹 and a plunger 🪠 to get this dirty job done;
    • Of course equal justice for all should be the goal (it’s not a new idea, except in GOP Administrations — if you remember it was actually Janet Reno’s motto) and obviously we’re not close to being there; “communities of color” faced more than “discrimination” — over the past four years, it was an active and concerted policy of “Dred Scottification”willful dehumanization of the other and trashing their Constitutional rights: to vote, to due process, to “life, liberty, and the pursuit of happiness” on many occasions — mostly with the participation, encouragement, and often unethical  actions of the DOJ, sometimes endorsed and enabled by Federal Courts, all the way up to the Supremes; it’s going to take some real bold, and undoubtedly unpleasant, actions at the DOJ to make the rhetoric a reality, not to mention standing up to some of the lousy Federal Judicial appointments from the last four years;  
    • How are you going to do any of this without acknowledging that immigration is where it starts; as you deliver your remarks today, some EOIR “judges,” soon to be “your judges,” will be actively applying racist, misogynist, anti-due process, “worst practices” “precedents” to dehumanize, disparage, and wrongfully deny and remove the very “people in the United States,” among our most vulnerable and often deserving, whose rights you claim to be dedicated to protecting and enhancing; how are you going to do that without a definitive plan for immediately reforming EOIR, OIL, the SG’s Office, OLC, OLP, the Civil Division, the Civil Rights Division, the Criminal Division and a host of other “components” who participated, and continue to participate, in these legal travesties and mockeries of due process, humanity, and the rule of law on a daily basis;  
    • I understand your commitment to addressing domestic terrorism; but, you can’t do that without addressing its most obvious manifestation in the DOJ: EOIR; you can draw a straight line from the White Nationalist, racist agenda of Stephen Miller to the lies, misogyny, racism, and disrespect for immigrants, particularly those of color, “institutionalized and weaponized” @ EOIR, to the empowered political thugs who thought they were entitled to forcibly attack democracy and its representatives (many among the GOP who were actively complicit) at our Capitol!
    • How do you intend to deal constructively, professionally, and constitutionally with the stunning, yet largely self-created, 1.3 million plus case Immigration Court backlog that threatens to topple our entire justice system; what’s your plan for ending “Aimless Docket Reshuffling” @ EOIR, returning control to local judges while keeping politicos and bureaucrats @ EOIR & DOJ from further destructive meddling;
    • How are you gonna credibly fight “domestic terrorism” with these folks as “your judges?”
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

I, of course, appreciate your lofty thoughts and wish you all the best. You remind us all of something sadly lost over the past four years and something still glaringly missing from the GOP and its supporters: Values matter! But, values require implementation — action! 

I won’t be convinced that you will actually be able to accomplish your goals and carry out your values until I witness your bold action to “deconstruct” the EOIR that Stephen Miller, Gene Hamilton, “Gonzo” Sessions, and “Billy the Bigot” Barr built and replace it with a real court system with real progressive, due-process/equal justice-committed expert judges and professional judicial administrators as an essential step to the creation of a long-overdue and urgently needed Article I U.S. Immigration Court.

I look forward to seeing your EOIR Reform Plan in action, very soon! Good luck!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

02-22-21

 

NBC REPORTS THAT ANOTHER NDPA ALL-STAR, 🌟 MICHELLE BRANÉ, WILL BE TAPPED BY BIDEN ADMINISTRATION FOR KEY LEADERSHIP POSITION!

Michelle Brane
Michelle Brane
PHOTO: Women’s Refugee Commission

https://www.nbcnews.com/politics/immigration/biden-admin-name-refugee-advocate-director-task-force-reunite-separated-n1257255

Feb. 10, 2021, 1:12 PM EST

By Julia Ainsley, Jacob Soboroff and Geoff Bennett

WASHINGTON — The White House is expected to select Michelle Brané of the Women’s Refugee Commission as the executive director of the task force to reunite migrant families separated by the Trump administration, three sources familiar with the decision tell NBC News.

The selection of Brané, director of migrant rights and justice programs at the Women’s Refugee Commission, is welcome news to the immigration advocate community, as most of the task force is made of government officials.

“If selected, Michelle would be a fantastic choice. She would bring deep expertise on the issues and the perfect mixture of passion and common sense,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

. . . .

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

Read the full article at the link.

Good news indeed!

Michelle was an Attorney Advisor at the BIA during part of my tenure as Chair, before moving on to a distinguished career in the NGO sector.

She is brilliant, tough, practical, humane, a leader, and a true pro who has been getting the job done for refugees and the most vulnerable among us for years. Michelle is just who America needs to bring expertise, organizational skills, and moral as well as intellectual leadership to a Government that has been missing those essential qualities for far, far too long!

Always satisfying to see the “best and brightest” whom I’ve worked with over my career rise to the leadership positions they deserve where they can use their skills to lead America to a better future!

Congrats, Michelle, and Due Process Forever!

PWS

02-15-21

😢DIFFERENT TONE, BUT THE SAME OLD SONG — BOTTOM LINE:  BIDEN ADMINISTRATION WILL CONTINUE STEPHEN MILLER’S BOGUS BORDER CLOSING POLICY — Refugees Told That U.S. Will Continue To Violate Asylum Laws, Due Process “Until Further Notice” ☠️

 

Death On The Rio Grande
Supremes Sign Death Warrants For Vulnerable Refugees, Trash Refugee Act of 1980
Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Remain in Mexico
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung

https://www.buzzfeednews.com/article/adolfoflores/biden-turning-away-immigrants-border-policy

by Adolfo Flores and Hamed Aleaziz in BuzzFeed News:

After days of confusion about changes along the southern border, the Biden administration on Wednesday said immigrants should not try to enter the US because most will still be turned away under a Trump-era policy that has recently come under legal scrutiny.

. . . .

Confusion about who was being allowed into the US in recent days forced the administration to issue a stronger warning. Last week, reports of some families being allowed into the US after being apprehended at the border resulted in speculation that immigrants would no longer be immediately expelled and instead be allowed to fight their immigration cases from within the United States. In the Rio Grande Valley in South Texas, immigration advocates have reported seeing about 100 people a day released by Customs and Border Protection. In other parts of Texas, shelters have also seen increasing numbers of immigrant families, but it is not clear why.

Attorneys and advocates who work with immigrants along the border have been bombarded with phone calls and texts about whether they should try their luck at getting into the US. Erika Pinheiro, policy and litigation director with the immigrant advocacy group Al Otro Lado, said it was “incredibly disappointing” that the Biden administration has continued to expel immigrants under the CDC order.

“We know now that the CDC order prohibiting asylum processing at the border did not arise from public health concerns but rather was part of Stephen Miller’s efforts to dismantle the US asylum system and was implemented despite opposition from CDC leadership,” Pinheiro said, referring to one of Trump’s former senior advisers. “US expulsions of asylum-seekers, including infants, constitute plain violations of domestic and international laws meant to protect vulnerable refugees. CBP absolutely has the resources to process asylum-seekers in a safe and humane way.”

The turnbacks, known as expulsions, are legally different from deportations, which would mean an immigrant had actually undergone the immigration process and found to not be legally allowed to stay in the US. Critics say the government is using the public health orders as an excuse to turn back immigrants at the border.

. . . .

“While we recognize that the Biden administration has been saddled with a lot of bad policy and structural problems, it cannot continue the Trump administration practice of turning away people in danger based on illegal policies, such as the notorious and pretextual Title 42 policy,” said Lee Gelernt, an attorney with the ACLU.

. . . .

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

Read the full article at the link.

“Go suffer and die somewhere else, out of our sight,” might not be the best message for an Administration trying to re-establish its human rights and humanitarian leadership and credentials. Ever hear of the “St. Louis Incident?” It’s always easy to find a way to “just say no” to refugees — and the consequences are seldom pretty. 

Those who won’t learn from history are destined to repeat it. Refugee and forced migration situations happen in the “here and now;” they can’t be “back burnered” — no matter how much policy officials might wish otherwise. In a forced migration situation, “doing nothing” is an action that produces consequences for both the forced migrant and those who ignore their plight.

There are many daily potentially deadly and dehumanizing consequences of continuing to ignore asylum laws and Constitutional due process for asylum seekers at our Southern Border.

One predictable one: Instead of turning themselves in at the border or to the Border Patrol shortly after entry, as had been happening until Miller & co. intervened, those seeking refuge apparently have gotten the message that our legal system is and remains a sham for them. Consequently, increasingly they are simply evading the Border Patrol and disappearing into the interior with no screening whatsoever — health, legal, or background. Also, by intentionally driving people out of the legal system, the Administration is totally blowing a chance to harness and build upon one of the most powerful known facts — represented individuals with asylum hearings scheduled show up for their hearings!

⚖️🗽OUTING THE BIG NATIVIST LIE: EOIR/DHS CLAIM THAT MIGRANTS DON’T SHOW UP FOR HEARINGS REFUTED BY USG’S OWN DATA — Professor Ingrid Eagly & Steven Schafer Analyzed Millions Of Records To Show How False Narratives Drive Draconian Policies — Eagley, Shafer, Reichlin-Melnick, Schmidt Set Record Straight @ Press Conference!

According to an article in today’s Washington Post, the estimated number of so-called “get always” — actually human beings seeking refuge — hit 1,000 on Sunday. 

https://www.washingtonpost.com/immigration/border-arrests-increased-in-january/2021/02/10/8604f714-6bc0-11eb-9f80-3d7646ce1bc0_story.html

Sure, there are many aspects of this problem. But, it has been “out there” for nearly a year!

Sure seems to me that with the right experts in charge, including folks like Lee Gelernt and Erika Pinhero, this issue could and should have been addressed more constructively and with much more urgency by the Biden Administration by now. Why not harness the expertise and proven problem solving abilities of folks like Lee, Erika, and many other members of the New Due Process Army rather than fighting with and resisting them? 

Instead, it looks like time and resources will continue to be wasted on forcing policy changes through litigation. Meanwhile, vulnerable asylum seekers and their families will continue to suffer as illustrated by this recent article from HuffPost about the human consequences for those caught up in the Government’s scofflaw border policies.

https://www.huffpost.com/entry/biden-trump-migrant-asylum-seekers_n_60219e61c5b6c56a89a39a32

NOTE TO PRESIDENTIAL PRESS SECRETARY JEN PSAKI: Sorry, Jen, but those fleeing for their lives don’t generally respond well to “don’t come right now, we don’t want you” messages, particularly from folks who have never been in that situation themselves. It’s actually pretty insulting to think that folks fleeing to the U.S. 1) aren’t smart enough to know the dangers involved; 2) don’t realize that the the U.S. Government doesn’t want them; and/or 3) have choices about their travel as Jen and her buddies might have when planning a summer vacation. 

As one of my esteemed colleagues once told me: “Desperate people do desperate things.” What about people who keep repeating the same policy mistakes over and over while expecting different results and failing to grasp either the absolute urgency or the human side of forced migration issues? It’s sort of like going to the emergency room with a burst appendix and being told, “Why don’t you just sit in the waiting room until we doctors figure out what to do? Get back to you later!”

Somewhere out there, Stephen Miller must be gloating about how he totally outsmarted and outflanked the Biden Team!

🇺🇸⚖️🗽Due Process Forever! Oh, when will they ever learn, when will they learn?

PWS

02-11-21

UPDATE: THE CONTINUING REAL TRAUMA CAUSED BY THE “REMAIN IN MEXICO PROGRAM” (A/K/A “LET ‘EM DIE IN MEXICO”) WHILE THE BIDEN ADMINISTRATION “STUDIES” THEIR NEXT MOVE:

Emily Green writes in Vice, as reposted in ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/02/the-trauma-of-being-stuck-at-the-us-mexico-border.html

 

Emily Green
Emily Green
Latin America Reporter
Vice News

PWS

02-11-21

🖕ICE CONTINUES TO GIVE BIDEN ADMINISTRATION, HUMANITY THE BIG MIDDLE FINGER! — Racism Also On Display As Haitian Kids & Babies Deported To “Burning House!”

 

https://apple.news/ATjEjX2Z_QnKYbl01eYMHNA

Ed Pilkington reports for The Guardian:

US Immigration and Customs Enforcement (Ice) deported at least 72 people to Haiti on Monday, including a two-month-old baby and 21 other children, in an apparent flagrant breach of the Biden administration’s orders only to remove suspected terrorists and potentially dangerous convicted felons.

The children were deported to Haiti on Monday on two flights chartered by Ice from Laredo, Texas to the Haitian capital Port-au-Prince. The removals sent vulnerable infants back to Haiti as it is being roiled by major political unrest.

New claims of migrant abuse as Ice defies Biden to continue deportations

Read more

Ice is facing a rising chorus of denunciation as a “rogue agency” for its apparent refusal to abide by the new guidelines laid down by Biden and his homeland security secretary, Alejandro Mayorkas. The incoming administration ordered a 100-day moratorium on all deportations, which was temporarily blocked by a judge in Texas.

However, the judge’s restraining order left in place the new guidelines stipulating that only the most serious immigration cases should be subject to deportation.

Last Friday, the administration appeared to gain the upper hand in its attempt to rein in Ice when deportation flights to Haiti were suspended. But on Monday the immigration agency reasserted itself again with the renewed flights to Port-au-Prince, children and infants on board.

Human rights activists are dismayed by the deportations, which bear a close resemblance to the hardline course set by Donald Trump. “It is unconscionable for us as a country to continue with the same draconian, cruel policies that were pursued by the Trump administration,” said Guerline Jozef, executive director of the immigration support group the Haitian Bridge Alliance.

She added: “I don’t know what’s going on between Ice and the Biden administration, but we know what needs to be done: the deportations must stop.”

. . . .

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

Read the full article at the the link.

Unfortunately, as I have pointed out, ICE is totally of control. It’s going to take more than policy memos to change that!

PWS

02-08-21

☠️🤮🦹🏿‍♂️ CHILD ABUSERS IN ROBES! —- Three Trump Appointees On DC Circuit OK Child Abuse @ Border!

Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
“Floaters”
“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)

Here’s the opinion, with no discernible rationale for this unprincipled and irrational action:

DC CIRCUIT APPROVES CHILD ABUSE

 

Here’s the “death to children” ☠️⚰️ panel: Katsas, Rao, and Walker, Circuit Judges. As long as it’s not THEIR children  . . . . 

Bad things happen to countries that make child abuse an “official policy” and reward child abusers with lifetime judicial appointments!

The Biden Administration needs to move quickly to get a handle on what’s happening in their name at the border. Also, might want to take a look at the Government lawyers who defend the indefensible in Federal Court.

Better Judges For a Better America! No more child abusers on the Federal Bench!

🇺🇸⚖️🗽Due Process Forever! Child Abusing Circuit Judges🤮, Never!

 

PWS

01-30-21

 

🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

A Parting Shot At Women

As the Trump Administration comes to an end, let’s remember how it began.  On the day following the inauguration, millions participated in Women’s Marches around the world.  There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.

It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence.  That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated.  The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound.  The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.

The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection.  Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.

There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-.  Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below.  But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers.  As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.

So what does the new decision of the recent Deputy Transportation Secretary say?  It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.

As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection.  The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.

I’m not sure of the need for what follows on the topic.  Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available.  Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap.  Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.”  No court has ever said that it was.  Let’s move on.

The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established.  This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father.  The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.

Our laws recognize that persecution can arise for multiple reasons.  A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm.  The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”

In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm.  Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store.  But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted.  This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed

In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction.  The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family.  The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.

I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice.  The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable.  I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political.  I’m not sure what jumps out in that example as evidence of animus towards the family itself.  How would one apply the Romanov test to anyone ever appearing in Immigration Court?  By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.

Of course, this is just my humble opinion.  The assistant Transportation czar feels differently.  Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”

I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference.  Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied.  (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).

But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference.  It is instead a legal standard not specific to asylum or immigration law.

For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity.  In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes.  In determining nexus, the Court stated:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context.  What would give an Acting Attorney General the authority to hold otherwise?

A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.

However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required.  The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.

Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1  While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test.  The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.”  This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive.  Perhaps the author required more than three weeks at the Department of Justice to understand this.

I write this on the last full day of the Trump presidency.  Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.

Note:

1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.  See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.

Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team. 

The Clown Show🤡🦹🏿‍♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹

🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!

And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”

“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!

Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿‍♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮

PWS

01-20-20

CRIME BLOTTER: CHILD ABUSE🤮☠️⚰️🦹🏿‍♀️: DOJ IG REPORT CONFIRMS WHAT COURTSIDE & OTHERS KNEW FROM THE START: Trump, Sessions, Miller, Rosenstein, Hamilton Are Cowards🐓, Lying 🤥 Criminals, Child Abusers🦹🏿‍♀️, Who Belong Behind Bars For Intentionally Abusing Asylum Seeking Families & Kids & Then Having Their Sleazy DOJ Lawyers Lie To Federal Judges! — What Happened To “Due Diligence” As An Ethical Requirement For Government Lawyers?

Trump Regime Emoji
Trump Regime
Kiddie Gulag
Trump’s Legacy
Kiddie Gulag
Sessions in a cage
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license
Jeff “Gonzo Apocalypto” Sessions
“Police Brutality? What Police Brutality?”
Stephen Miller Monster
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com, Republished under license
Stephen Miller Cartoon
Stephen Miller & Count Olaf
Evil Twins, Notorious Child Abusers
Stephen Miller & Wife
“Gauleiter Muller & Eva Braun” Yuck it Up In The Comfort Of “Public Welfare Dole” While Looking Forward to Planning Together for More “Crimes Against Humanity,” Abusing Children, Dehumanizing Persons of Color, Spreading Lies & False Narratives, & Targeting World’s Most Vulnerable Refugees 🤮☠️⚰️🦹🏿‍♂️ — Sure Looks Like “Welfare Fraud” to Me!

 

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=newssearch&cd=&cad=rja&uact=8&ved=0ahUKEwjByaGq6p7uAhVwuVkKHXiFC34QxfQBCFMwBA&url=https%3A%2F%2Fkval.com%2Fnewsletter-daily%2Fmerkley-calls-for-prosecution-of-trump-officials-after-report-on-child-separation-policy&usg=AOvVaw1vnWzv2UxSmymy6iLrVQ-o

 

 

By KVAL CBS (Eugene, OR) News Staff:

 

WASHINGTON, D.C. – Senator Jeff Merkley of Oregon has called for the investigation and prosecution of current and former Trump administration officials after the Department of Justice Office of the Inspector General released “a disturbing report confirming that the Trump administration knew their zero tolerance policy would lead to family separations,” the Oregon Democrat said in a statement.

“We finally have more answers about how this diabolical plan came to be,” Merkley said. “It is crystal clear that Jeff Sessions, Stephen Miller, Chad Wolf, Kirstjen Nielsen and other senior Trump administration officials were not only fully aware that their policy would have traumatizing impacts on families, but also that their intention was to inflict that trauma as a means to deter people from coming to America in search of a better life.”

The senator added “it’s now confirmed that they committed perjury by lying to Congress about their intentions and actions in order to avoid accountability for their monstrous initiative.”

In June 2018, Merkley traveled to Texas and attempted to enter a child detention center in a former Walmart, calling attention to the practice of separating and detaining children apart from their families.

“The intentional infliction of harm on innocent children is unforgivable and has no place on our soil,” Merkley said Thursday. “The architects should be investigated and prosecuted to the full extent of the law for any crimes connected with both the atrocities and the cover-up.”

Merkley returned to the border 6 more times and advocated for families to be reunited – and for people seeking refuge “from gang violence, murder, rape, and extortion in their home countries” be allowed to make their case – something the senator alleges the Trump adminitration has not allowed in keeping with the law.

“America is at its strongest when we embrace our historic role as a beacon of hope for persecuted people from around the world,” Merkley said. “I am determined to work with the Biden administration to ensure that we turn that vision into a reality, and to hold the perpetrators of the Trump administration’s cruelty fully accountable.”

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

Couldn’t have said it better myself, Senator! Right on! Remarkable how all it takes is an armed insurrection against our Capitol and our democracy generated by the Traitor Prez and supported by far, far too many cowardly, anti-American members of his “Party of Treason” to get folks “thinking like Courtside.” 

Even if the criminals described by the IG escape prosecution for their crimes, the new IG Report and the additional documents that certainly will come to light once the Trump kakistocracy is removed should provide enough evidence to keep these wretched fascist creatures and their families tied up in civil litigation for the rest of their miserable and worthless lives!

To date, only Senator James Langford (R-OK) has had the decency to apologize for his role in supporting Trump’s beyond bogus, treasonous, insurrectionist claims of “election fraud” or a stolen election. Where are the apologies from the rest of the cowardly GOP traitors and toadies who supported and/or enabled Trump and his band of racist thugs over the past four years? Why is scumbag Rep. Jim Jordan walking around with a bogus “Medal of Freedom” for spreading lies and encouraging sedition, rather than sitting in a jail cell awaiting trial?

WHERE ARE THEY NOW?

“Gonzo Apocalypto” Sessions. Child abuser and racist plotter remains at large, after having the shameless audacity to run for the U.S. Senate again, being defeated by Magamoron “Coach Tubby Traitorville (a blithering idiot who obviously got hit by one too many flying tackling dummy).

“Gauleiter Stepan Muller.” Hiding out on the public dole in the seat of corruption and insurrection (formerly and soon again to be known as the “White House”) with his repulsive “Eva Braun substitute” and carrying out more “crimes against humanity” to the end.

Rod Rosenstein. Hiding out, hanging his head in (belated, fake) shame and making the big bucks at King & Spaulding. Will need them after he is dismissed from his law firm, disbarred, and has to pay legal fees and damages to the families he traumatized.

Gene (No Relation to Alex) Hamilton. Still grifting on public welfare at the DOJ until next Wednesday. First cowardly “Waffern SS Member” to publicly take the “Nuremberg defense:” I was only following Der Fuhrer’s orders.” But, he won’t be the last.

Donald J. “Big Loser/Traitor” Trump. Hiding out in White House basement and planning flight from DC after initiating botched coup attempt against his own Government.

Victims of Failed Regime’s “Crimes Against Humanity.” Already sentenced to a lifetime of pain, suffering, and trauma by Large Banana Republic that shirked its legal and moral duties.

Accountability for this “gang of White Nationalist thugs” is important!

Also, Judge Garland needs to look into the conduct of the DOJ lawyers who defended the regime’s transparent lies and false claims that there was “no child separation policy.” These turkeys 🦃  took no responsibility for their clients’ ongoing crimes and cover ups. Indeed, outrageously, they got away with making it the burden of the plaintiffs’ lawyers to reunite families the Government intentionally and illegally separated without any plans for reunification.

The invidious racist, unconstitutional motives of criminals like Trump, Miller, Sessions, Hamilton, and Rosenstein was no secret. Except for the degree of Rosenstein’s involvement, it was widely reported at the time. Trump was a well-established liar whose public statements and rationales should have been assumed false until proven true. (Ask yourself what would happen to a corporate lawyer who took at face value and presented to a court as “facts” or a “defense” in a civil suit false statements by a corrupt CEO with a long-standing record of fraud, racism, and dishonesty.)

Also, what was the a racist hack like Sessions (the report also reveals that he was as totally incompetent as a lawyer as he was devoid of human decency) doing running border enforcement programs that had intentionally been removed from the AG’s portfolio by Congress when DHS was created? How does that fit with “Gonzo’s” transparently unethical and unconstitutional actions as a “quasi-judicial officer” in interfering with due process at the EOIR Clown Show🤡/Star Chamber🦹🏿‍♂️?

This IG report is just the “tip of the iceberg” of the institutionalized racism and systemic misconduct that polluted the immigration kakistocracy at DOJ and DHS during the Trump regime. The failings of the U.S. Justice system from top to bottom, starting with the Supremes’  consistent failure to critically examine the regime’s transparent pattern of unconstitutional, racist, biased behavior culminating  in an insurrection can’t be “swept under the carpet.”

Nor can their enabling of the White Nationalist immigration agenda of “Dred Scottification” pushed by unethical SG Noel Francisco! In a well-functioning democracy, the Trumpist thugs’ child abuse should have been stopped in its tracks. Thanks to the failure of legal, ethical, and moral leadership by Roberts and his righty GOP buddies, it wasn’t!

The entire beyond disgraceful and patently illegal “zero tolerance program” instituted by Gonzo was a grotesque misuse of public funds and abuse of prosecutorial discretion. Real crimes (the Trump regime has been an absolute boon to serious criminals from the Oval Office on down) went un-prosecuted and un-investigated. The conduct of U.S. Attorneys, Federal Judges, and U.S. Magistrate Judges along the border who shirked their duties and participated in the legal farce taking place in our criminal justice system also needs to be examined.

Those of us who lived through Watergate can see that this time around, under extraordinarily poor leadership generated by an anti-American GOP, the response of all three branches of our Federal Government to the overt threats to our Constitution and democracy posed by a dishonest Executive fell disturbingly below the bipartisan levels that saved our nation from Nixon.

That’s why the critical democratic standard of a “peaceful and orderly transfer of power” has fallen by the wayside and the Biden-Harris Inauguration will take place in an armed camp. Ironically, the man administering the oath to President Biden, Chief Justice John Roberts and his GOP colleagues on the Supremes bear a major responsibility for democracy’s peril and the pain and suffering of those like separated families whom they failed to protect from Executive abuses!

As I’ve said before, although it won’t happen, the resignations of Roberts and his fellow GOP Justices should be on President Biden’s desk on the morning of January 21. That would be a real start on healing, restoring democracy, and reinstituting human decency and respect for human lives and the rule of law in America.

(Let’s not forget that ethics-challenged Justices Thomas and Coney Barrett showed up at what essentially was a “MAGA campaign rally” at the White House on the eve of the election that eventually resulted in impeachable acts of insurrection and sedition by a patently dishonest and dangerous Chief Executive whose unfitness to govern was more than clear by that time. Honestly, it’s going to take more than a black robe to cover the shame of these dudes who stand for protecting and enabling tyranny and against justice for the people. If nothing else, it’s high time for a Democrat-led Congress to impose at least some minimal ethical standards on the Supremes, since they appear to have none to mention. That’s, of course, after they come to grips with the treason of GOP guys like Cruz and Hawley who should be expelled and barred from public “service” (treason?) for life.)

🇺🇸⚖️🗽👎🏻Due Process Forever! Cowardly thugs, 🥷🏻magamorons, 🦹🏿‍♂️ and their enablers, never!

PWS

01-16-21

 

⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”

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

Two most recent recent rebukes, courtesy of Dan Kowalski at Lexis-Nexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca6-on-exceptional-circumstances-e-a-c-a-v-rosen

Immigration Law

pastedGraphic.png

Daniel M. Kowalski

12 Jan 2021

 

  • More

CA6 on Exceptional Circumstances:

E.A.C.A. v. Rosen

“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Rachel NaggarHere is a link to the audio of the oral argument.]

pastedGraphic_1.png

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-asylum-u-s-army-contractor-al-amiri-v-rosen

CA1 on Asylum, U.S. Army Contractor: Al Amiri v. Rosen

Al Amiri v. Rosen

“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”

[Hats off to J. Christopher Llinas!]

pastedGraphic_2.png

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

  • Congrats to all involved!
  • Think how much better this system would function with expert  judges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
  • At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
  • The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process. 
  • Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.” 
  • Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
  • In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
  • NOTE TO JUDGE GARLAND👨🏻‍⚖️: Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!

Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!

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

Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)

 

Greetings,

 

Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.

 

Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:

 

SIJS

·       “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”

·       FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”

 

Totality of the Circumstances

·       “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”

·       “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”

 

Exceptional Circumstances

·       “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”

·       “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”

 

Prima Facie Eligibility

·       “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”

 

Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.

 

Gratefully,

 

Michelle N. Mendez | she/her/ella/elle

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿‍♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴‍☠️👎🏻

Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.” 

The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸

I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR! 

HINT TO JUDGE GARLAND: Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿‍♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!

The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!

The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.”  You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻.  “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!

And, it starts with better judges @ EOIR, which is entirely under YOUR control! An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts  —  all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!

We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!

🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿‍♂️ ☠️⚰️Never!

PWS

01-13-21