"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Hon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA Source: Denverdemocrats.org
DISTRICT 4:
Candidate
Total Votes
% Votes
Cecelia Espenoza (D)
20,806
80.5%
Jack Daus (R)
5,042
19.5%
SOURCE: AZCENTRAL.com
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You go, my friend and colleague! Thanks for running and for standing up for a better, fairer America! Building a “values based movement” starts at the “grass roots level.” You’re getting it done, Cecelia!
The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants. IMAGE: Public RealmEduardo Porter Columnist and Editorial Board Member Washington Post PHOTO: WashPost
“I think that we have sufficient stock in America now for us to shut the door.”
That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”
Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.
. . . .
The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.
Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.
We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.
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Gordon F. Sander Journalist and Historian PHOTO: www.gordonsander.com
Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:
Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”
The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.
But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.
During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.
At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.
But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.
Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books
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Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.
Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:
And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.
I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.
Well said, Susan!
Susan Gzesh American scholar, educator, expert, author PHOTO: U. Of Chicago
I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who areseeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”
It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are —tragic acts of political and moral cowardice!
Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past.
Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected.
As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.
Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.”
U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!
Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.
And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.
Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.
Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!”We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all!Make the right one!
Immigration law and policy are very complex, and truly boring for everyone except those who have to deal with them. But we live in an instant gratification, fast food culture. Immigration is a Hot Topic, folks want a Solution Now, so journalists naturally write about it…some better than others.
David Leonhardt, a senior writer at the New York Times, is a smart fellow who has won awards. But his “wheelhouse,” as the kids say, is mostly business and economics. I wish he (and/or his editors…where were they?) had consulted a panel of experts before hitting “send” on this piece.
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Now, I’m not an expert, but I did practice immigration law for almost 40 years, and today my social media feeds and email listservs are burning up with negative reactions to Leonhardt’s piece from true immigration experts.
Responding to every one of the problems in the piece would make this post too long, and would put you to sleep rather quickly, so I’ll touch on just a few highlights that really chapped my professional hide.
First, Leonhardt said, “Biden … changed the definition of asylum to include fear of gang violence.” That is simply false. The definition of who qualifies for asylum is based on the “refugee” definition, is fixed by statute, and only Congress can change that. Congress did NOT make any such change, and neither Biden nor any president could. Fear of gang violence as a basis for an asylum claim is a continuing subject of litigation at the Board of Immigration Appeals and in the federal courts, but the statute remains unchanged.
Second, Leonhardt states that Biden could have issued executive orders to mitigate the situation at the border. Oh, but “Yes, federal judges might block some of these policies… .” Maybe because they are illegal orders? No matter, “sending a message” is more important than legality.
Third, on the matter of admission into the U.S. via “parole,” Leonhardt implies that Biden expanded the use of parole beyond its “case-by-case” legal limits. Maybe Leonhardt did not know that “parole was … used to resettle over 360,000 Indochinese refugees between 1975 and mid-1980” and that “[b]etween 1962 and the end of May 1979, over 690,000 Cuban nationals were paroled into the country, “the largest number of refugees from a single nationality ever accepted into the United States.” ” – Amicus brief submitted to the Supreme Court in Clark v. Martinez.
Finally, the overall thrust of Leonhardt’s piece seems to be that the border is a “problem” that can and should be “solved” by some combination of legal and physical deterrents. This is a misperception common to educated elites as well as regular folks, and it is based on an ignorance of the full panoply of historical, economic, geographic and political forces that combine to make true border “control” a fantasy. Go to the border, look at the miles of desert, mountain and river and you will conclude that border walls are nothing more than a contractor’s financial wet dream. Talk to a woman from Central America who has risked everything to come here and you will conclude that no laws, no walls, no “message” would have deterred her.
I usually ignore much of what the MSM publishes about immigration, but the Times and Leonhardt carry a certain weight, so here I am, typing away. You’re welcome.
[The Comments are open, so fire away!]
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:
Before David Leonhardt writes another piece on immigration, he should make sure he has his facts straight. He erroneously claims Biden “changed the definition of asylum to include fear of gang violence.” Biden did no such thing. What his Justice Department did was overturn a Trump-era ruling attempting to foreclose asylum claims by victims of domestic and gang violence, regardless of their legal merits. That decision was widely criticized, including on your pages in an op-ed I co-authored with Jane Fonda. Attorney General Garland rightfully vacated it, leaving the issue to be resolved by regulations [which to date have not been issued].
Leonhardt is incorrect in his assertion that more “aggressive” moves will mitigate challenges at the border, or score points with voters who overwhelmingly opposecruel and exclusionary policies. The Senate bill touted as a step in the right direction would have codified failed policies that only create more chaos.
Executive actions reportedly under consideration would similarly exacerbate operational challenges and inevitably get tied up in litigation.
And yes, Republicans’ sabotage of the bill was “transparently cynical.” Just as cynical, however, was the president’s choice to back anti-immigrant legislation he knew was doomed. In their attempts to out-Trump Trump, the president and his allies have betrayed their values and the voters who put them in office.
Karen Musalo
San Francisco, CA
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Thanks, Dan and Karen! Turning Leonhardt loose on a subject he’s obviously unqualified to write about — “stunning ignorance” in the words of one world-renowned expert — is nothing short of journalistic malpractice on the part of the NYT!
Immigration is a serious topic with life or death implications for migrants and the future of our nation. It deserves serious, informed, professional journalism by experts who are familiar with the plight of forced migrants and the actual legal requirements for asylum and due process as well as the realities of the border and the anti-immigrant absurdities of our dysfunctional Immigration Courts and non-legally-compliant asylum adjudication system.
There are lots of well-qualified folks around who could inform the public. Needless to say Leonhardt is not one of them. Unhappily, few “mainstream media” journalists have the necessary creds. That’s one reason the toxic national debate is so dominated by right wing White Nationalist media spreading lies and myths with little critical pushback from the “MSM.”
Rachel Siegel Economics Reporter Washington Post PHOTO: WashPost
Ironically, the same day’s Washington Post had an article by Rachel Siegel about how robust immigration of all types has saved the U.S. economy and how many economists believe Trump’s mindless, restrictionist, and likely illegal nativist policies could slow growth, devastate the U.S. workforce, and exacerbate inflation! https://www.washingtonpost.com/business/2024/05/20/trump-immigration-undocumented-economy/. At the same time, he would create chaos and waste billions in public funds.
Recently, I publisheda number of articles by experts debunking many of the very anti-immigrant myths that Leonhardt disingenuously repeats or enables:
In one of many bad moments, Leonhardt uncritically “parrots” the oft-debunked fiction that changes in U.S. immigration policies and “deterrents” like walls, detention, and racially-driven cruelty are primary long-term “drivers” of forced human migration. Undoubtedly, in the complex interrelated world of migration, such policies do have some fairly marginal, largely short-term effects, causing changes in migration paths, adjustments in smuggling methods, changes in smuggling fees, more deaths and unreported irregular entries (when enforcement “gimmicks” are irresponsibly expanded), and enough “statistical variance” to allow proponents of these futile policies to falsely claim “victory” before the system reverts to a new “equilibrium.”
But the truth is inescapable, even if inconvenient for Leonhardt and other dilettantes: Human migration is a complex worldwide phenomenon driven by forces beyond the ability of any single nation, even one as powerful and influential as the U.S., to control by harsh deterrence and restriction, no matter how cruel, deadly, and wasteful.See, e.g., https://immigrationcourtside.com/wp-admin/about.php (“Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children. . . .No wall, sheriff or headscarf law would have prevented [forced migrants] from leaving their homes.”).
As cogently stated by Robert McKee Irwin, an immigration scholar at U.C. Davis:
Leonhardt also suggests, quite incorrectly, that Biden’s (limited) attempts to increase pathways for legal immigration and return to the rule of law at the border somehow benefitted and encouraged smugglers and cartels. NOTHING could be more wrong-headed!
It is Trump and his restrictionist allies and enablers who have been a huge boon for human smugglers! As legal pathways are eliminated or unreasonably restricted, the entire “protection” system falls into the hands of smugglers and other trans-border criminal organizations who become “the only game in town” for those seeking protection! Smuggling prices go up and the risks to migrants increase, even as profit margins for the smugglers skyrocket! Equally bad, law enforcement is diverted from real criminals to playing a bogus “numbers game” at the expense of those who seek only to have their life-determining claims heard fairly, timely, and humanely in accordance with the rule of law!
If our country builds a fair, timely, and humane system for considering asylum claims, something that succeeding Administrations have shamefully eschewed, the majority of asylum applicants will use it, which at the same time would allow border law enforcement to focus on real security issues rather than contrived ones. Similarly, more realistic and robust paths for legal immigration, both temporary and long term, will reduce the pressure and incentives for irregular migration. These measures would also tap into the truth about migration being ignored by politicos of both parties:
These [restrictionist] political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.
Notably, the Biden parole program criticized by Leonhardt not only has been upheld in Federal Court, but has generally been praised and recognized by experts as a great, largely under appreciated, success in both creating an orderly process and reducing border pressures while benefitting American families and fueling our economy. See, e.g., https://www.fwd.us/news/chnv-parole/. (I’ll admit to not initially being a “fan,” but hey, results matter so I’ve come around). The most legitimate criticism is that it has been too limited both in terms of numbers and nationality restrictions!
Bad journalism promoting myths like those spouted by Leonhard misleads the public and enables politicos to get away with policies that are not only illegal, but often harm and even kill the very vulnerable migrants we are supposed to be protecting, or at the very least treating with fairness, respect, and human dignity. America and the migrants who still (against the odds) see us as a beacon of hope in a cruel world deserve better from the NYT!
Judge Lister also has a plan to donate patented “healthy, sustainable textile technology” developed during the pandemic that could be used to create good jobs in Mexico and other countries beyond our borders.
Professor Michele Pistone at Villanova Law has developed a “scalable” online training course (“VIISTA Villanova”) that is currently being used to graduate more highly-qualified non-lawyer “Accredited Representatives” to close the burgeoning and critical representation gap in Immigration Court, thus “delivering due process with efficiency.” She believes that with more funding, this program could be “ramped up” to produce 10,000 new Accredited Representatives annually! See, e.g., https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html.
With so many brilliant, informed, and involved experts out here, with creative positive ideas for improving immigrant justice and restoring the rule of law, it is very disappointing that the NYT and Leonhardt have chosen to uncritically recycle and repeat cruel, failed, legally problematic proposals by irresponsible politicos that would make things worse. Rather, the media should be consulting the experts actually involved in immigration at the “grass roots level” and pressing politicos on both sides of the aisle and the Administration as to why they aren’t concentrating and investing in humane potential solutions rather than deadly and discredited “deterrence through cruelty!”
As Erica Bryant of the Vera Institute of Justice, someone who, unlike Leonhardt, is actually qualified to write about migration, stated in an article I recently republished:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
Obviously, neither Leonhardt nor the NYT editors got the message. They should!
Thanks again, Dan and Karen, for being the first to speak out and challenge Leonhardt’s dangerous, misleading, and highly irresponsible nativist nonsense!
As critical elections approach, voters are being bombarded with harmful myths, misrepresentations, and outright lies about people who are immigrants. More than 45 million people living in the United States were born elsewhere. Despite their proven contributions to communities nationwide, people seeking office call them “invaders” and make campaign promises for the “largest domestic deportation operation in history.” Inflammatory talking points about “border security” and the “migrant crisis” come from candidates across the political spectrum.
What is missing from this rhetoric is simple: the truth. The United States has failed to align its immigration laws and practices with 21st-century realities, leaving a system that is cruel, dysfunctional, and widely criticized. Bringing the country’s approach to immigration in line with the needs of the moment and building an immigration system that is both functional and humane will require serious effort. False information distracts from the solutions that we know work.
Here’s the truth.
It is perfectly legal to request asylum. People who come to the United States border to ask for help are not breaking the law.
Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.
Asking for asylum is not a “free ticket” into the United States.
Applying for asylum is a long and complex process. Asylum cases completed in fiscal year 2019 or later took an average of 5.2 years to resolve, according to unpublished analysis of government data conducted by Vera. Currently-pending removal cases have been on the docket for an average of 1.9 years. Dangerous conditions around the world have forced record numbers of people to flee their homes and seek safety. This increase in need, exacerbated by a decades-long lack of investment in infrastructure and capacity to humanely process asylum claims, has created an enormous backlog in processing requests. Vera’s unpublished analysis of government data showed that, as of January 31, 2024, there were 3,353,199 cases pending removal proceedings in the United States.
Undocumented people have far lower crime rates than U.S. citizens.
Political candidates often falsely link undocumented people to crime in the United States. Yet an extensive study of crimes in all 50 states and Washington, DC, from 1990 to 2014, found that undocumented immigration does not increase violent crime. A study of arrests in Texas found that, relative to undocumented people, U.S.-born citizens are more than twice as likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and more than four times more likely to be arrested for property crimes. Another study in Texas found that the criminal conviction rate for undocumented immigrants was 45 percent below that of native-born Texans. Immigrants of any legal status are typically found to be less involved in violence than native-born Americans.
Undocumented people pay taxes and help prop up social security by paying into the system—without receiving benefits.
Undocumented people pay an estimated $31 billion dollars in federal, state, and local taxes each year, including billions of dollars into a social security system from which they can draw very few, if any, benefits. The Social Security Administration (SSA) itself estimated that it collected $13 billion in payroll taxes in 2010 from workers without documentation, while only disbursing about $1 billion in payment attributable to unauthorized work. In a 2013 report, SSA estimated that “earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally. . . . We estimate that future years will experience a continuation of this positive impact on the trust funds.”
Virtually no fentanyl has been seized from people seeking asylum.
Fentanyl overdoses are increasing in the United States, and real solutions will require investments in treatment and preventative health care infrastructure. Instead, far too many politicians seek cheap political points by falsely blaming people seeking asylum at the southern border for this serious problem. In fact, virtually no fentanyl has been seized from people seeking asylum. In 2023, 93 percent of fentanyl seizures occurred at official border crossings or legal checkpoints. Nearly all of these seizures involved people permitted to cross the border, and more than 70 percent were U.S. citizens.
People with pending immigration cases show up to their court hearings.
Evidence clearly shows that, over the past two decades, most immigrants have shown up for the immigration court hearings that determine whether they have legal standing to remain in the United States. They do not slip into the country and disappear, as some political leaders claim. In fact, those who attend immigration court outside detention, on what are known as “non-detained” dockets, almost always continue to appear for their hearings when they are able to secure legal representation. There is no need to confine people in costly and inhumane immigration prisons.
Not all people at risk of deportation cross the border without documentation. Visa holders, long-term permanent residents, and even U.S. citizens are at risk.
While the spotlight often shines on people who cross the southern border without documentation, there are many ways that people can face the threat of deportation in the United States. Indeed, there are 22 million people in the United States who are at risk of being separated from their families and sent to countries where they may face danger. Tens of thousands of children who were adopted from outside the United States, for example, do not have documentation and are vulnerable to deportation because their complex citizenship paperwork was improperly filed. Additionally, more than one million people were brought to the United States as children by parents who entered the country without documentation or overstayed their visas. And, in 2022, more than 850,000 people from countries around the world overstayed their visas, making their continued presence in the United States unauthorized. Lawful permanent residents, current visa holders, and even U.S. citizens have been subjected to the risk of deportation and forced to defend their right to remain home with their families and in their communities.
Many people at risk of deportation actually have a legal right to remain in the United States—but are deported anyway.
Unlike in criminal court, people facing deportation in immigration court are not entitled to an attorney if they cannot afford one. Immigration attorneys can cost thousands of dollars, making them unaffordable for many. As a result, people seeking asylum, longtime legal residents, parents of U.S. citizens, and even small children are forced to appear in immigration court without an attorney to protect their rights. This makes it much more likely that they will be deported, even if they could have established a legal right to stay in the United States. The Fairness to Freedom Act, which was introduced in Congress last year and would establish a right to federally funded attorneys for all people facing deportation, would help fix this injustice.
Immigrants participate in the labor force and start businesses at higher rates than the native-born population.
One in six people in the United States workforce are immigrants. In fact, immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants are also more likely to start businesses than native-born U.S. citizens. Furthermore, millions of people in the United States are employed by immigrant-founded and immigrant-owned companies.
People in the United States view immigration as a positive that benefits the country, and they support protections for people fleeing danger.
The majority of the public believes that immigration brings benefits to the United States, including economic growth and enriching culture and values. Nearly three-quarters of people polled said that people immigrate to the United States for jobs and to improve their lives, and more than half say that the ability to immigrate is a “human right.” Multiple polls show that the majority of people in the United States support protections for people who are trying to escape persecution and torture in their homelands. According to one Pew Research Center poll, 72 percent believe that accepting civilians trying to escape war and violence should be an important goal of U.S. immigration policy.
The United States has much work ahead to reform its dysfunctional and often cruel immigration system. This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
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Erica’s “spot on” last sentence is certainly worth repeating:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
While migrants might be the “easy target” of politicos and nativists, because they are vulnerable and “the usual scapegoats” for problems created or fostered by those very politicos and nativists themselves, in the end we ALL are the targets of those who want to inflict gratuitous cruelty while destroying our precious democracy.
As Dr. Martin Luther King, Jr., said “Injustice anywhere is a threat to justice everywhere.” Each of us has a vested interest in “not looking the other way” while our fellow humans unfairly are stripped of their rights and humanity with “harmful myths, misrepresentations, and outright lies.” YOU could be “next on the list!”
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
From Professor Austin Kocher @ Linkedin:
New Report! “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”
Out of 1M+ asylum cases decided by immigration judges over the past decade, 685,956 (66%) were legally entitled to remain in the United States due to asylum or other relief.
Remember, this is in a system that has, over decades, been intentionally rigged, manipulated, and skewed AGAINST legal asylum seekers, particularly those of color from certain arbitrarily “disfavored” countries! (Think Haiti, The Northern Triangle, and many African Nations). While this anti-asylum bias has “peaked” in GOP Administrations, Dems have also been guilty including the Biden Administration’s flailing, legally problematic efforts to abuse the asylum adjudication system as a “deterrent” to those legally seeking asylum!
The U.S. Asylum system over the past two decades has prided itself in making the experience of asylum seekers as restrictive, difficult, complex, arcane, arbitrary, and “user unfriendly” as possible for many of the most vulnerable. Even so, courageous asylum seekers who can actually get a decision persevere and succeed against the odds! What if Administrations of both parties worked to make the system fair and timely, rather than trying to use it as a false “deterrent?” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Austin’s post triggered this exchange between Beckie “Deportation Defender” Moriello and me on LinkedIn:
BECKIE: It’s really higher than that, once we factor in all the wrongfully denied cases for clients who can’t afford to appeal.
PWS: Thanks for speaking truth, Beckie! If true asylum experts were on the BIA, IJs were experts who applied or were held by the BIA to the Cardoza, Mogharrabi, Kasinga, 8 CFR 208.13 framework, the asylum adjudication system had dynamic leadership, and individuals were competently represented, many more cases would be granted much more efficiently and backlogs would eventually come under control and start to diminish. In fact, individuals should be considered eligible for asylum even where persecution on a protected ground is “significantly less than probable” — the 10% rule! Moreover, asylum seekers who testify credibly are supposed to be given “the benefit of the doubt.” These and the presumption of future persecution established by past persecution, thereby shifting the burden to DHS, are still too often ignored, misapplied, or manipulated against asylum seekers. There is nothing that will make a backlog at least a decade in the making disappear overnight. But, a legitimate, legally compliant, properly generous asylum adjudication system would benefit all involved. It’s sad that Biden, Harris, Garland, and Mayorkas are afraid to comply with the rule of law for asylum seekers and other migrants!
Proposed Asylum Bar Regs Are At Odds With International Law (And Why That Matters)
In 2003, the Office of the U.N. High Commissioner for Refugees published Guidelines for applying the bars to asylum known internationally as the “exclusion clauses” (because they exclude an applicant from being recognized as a refugee under international law). Addressing the proper procedure for applying these bars, the UNHCR Guidelines state:
Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made.1
This week, the Biden Administration published a proposed rule seeking to do precisely the opposite of what UNHCR advises.2 The rule would empower USCIS asylum officers to apply certain bars to asylum eligibility up front, at the border, as part of a preliminary admissibility determination. The goal is to effect the immediate deportation of certain asylum seekers, foreclosing their ability to have their eligibility for asylum decided by an Immigration Judge pursuant to a full-fledged hearing.
Advocates have already pointed out the dangers of the proposed approach, which will require quick decisions on highly complex issues at a point at which applicants very rarely have access to lawyers or evidence; their responses should be read.3 However, I would like to focus here on the rule’s conflict with international law, and why this is problematic.
Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy 4 has required domestic statutes to be interpreted consistently with international law whenever possible.5
This general requirement carries a particular urgency in its application to refugee law. The purpose of the 1951 Refugee Convention (which applied to those made refugees by World War II), and the 1967 Protocol (which extended the 1951 Convention’s definitions and protections to all) was to create a single, universal refugee standard to replace the patchwork of protections that reflected individual states’ own political preferences and biases.
This is not a small matter. International refugee law scholars James C. Hathaway and Michelle Foster have warned that “[i]nconsistency and divergence in interpretation of the Convention definition would clearly undermine the principled goal of ensuring a single, universal standard for access to refugee protection.”6 They further quote a decision of the Australian Administrative Appeals Tribunal in support of this contention: “[i]nconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”7
Congress apparently agreed with this approach when enacting the 1980 Refugee Act. In its landmark 1987 decision in INS v. Cardoza-Fonseca, the Supreme Court pointed this out:
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.8
And in adhering to Congress’s clear intent, the Supreme Court in Cardoza-Fonseca looked for guidance in interpreting the 1980 Refugee Act to UNHCR, citing its Handbook first issued in 1979 as an important tool for interpreting the Convention’s provisions. In a footnote, the Court found that while it was not binding, “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform. It has been widely considered useful in giving content to the obligations that the Protocol establishes.”9
As leading scholar Deborah E. Anker has noted, “One of the most important developments in U.S. asylum law is the weight that U.S. authorities – including the USCIS Asylum Office, the Board, and the federal courts – give to the UNHCR’s interpretation of the refugee definition contained in its 1979 Handbook….” Anker noted that UNHCR has issued other interpretive documents since 1979 that “complement and expand on the Handbook.”10 I would argue that those other documents (which include the 2003 guidelines addressing the exclusion clauses that is quoted above) are deserving of the same interpretive weight.
So given (1) the Supreme Court’s Charming Betsy doctrine mandating conformity with international law whenever possible; (2) the stated intent of Congress to bring U.S. asylum law into conformity with international refugee law (as recognized in Cardoza-Fonseca); and (3) the purpose of the 1951 Convention to “ensure a single, universal standard” for refugee status, according great weight to UNHCR guidance in interpreting the Convention provides the best means of adhering to all of the above requirements.
However, another leading scholar, Karen Musalo, provided a recent reminder of how far U.S. law has strayed from international law standards for determining nexus (i.e. when persecution is “on account of” a statutorily protected ground), and in determining the validity of particular social groups. Musalo posits that realignment with international standards would resolve the erroneous interpretations that have arisen under present case law, and would remove unwarranted barriers to protection that presently exist.11 But with its new proposed regulations, the government instead seeks to veer even further off course in its procedures for determining bars to asylum eligibility.
In December 2020, I presented in a blog post a “wish list” for the incoming Biden Administration. One of the items on my list was to create a “Charming Betsy” regulation requiring adherence to international law refugee standards. It included the hope “that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.”12
I am not so naive to expect that a regulation like this will be proposed anytime soon. But I do believe that the direct contradiction of the proposed regs with international law guidance should be included in comments and talking points by those both inside and outside of government. Through these rules, the Biden Administration seeks to engage in the type of politically-motivated action that the Refugee Convention and 1980 Refugee Act sought to eliminate. For the above reasons, such action would violate the intent of Congress, our treaty obligations, and over two centuries of U.S. case law.
Moving forward, whether an asylum-related law, rule, policy, or case holding conforms with international law should instinctively be the first question asked by all of us. When refugee protection is viewed in such neutral, legal terms, the urge to politicize decisions will be lessened.
As those scholars referenced above have been saying far longer and more articulately than myself, it is only when international law becomes normalized in the process that our asylum law will function as it should.
Copyright 2024 Jeffrey S. Chase. All rights reserved.
See Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (noting that construing federal statutes to avoid violating international law has “been a maxim of statutory construction since the decision” in Charming Betsy).
James C. Hathaway and Michelle Foster, The Law of Refugee Status (Second Ed.), (Cambridge, 2014) at 4.
Hathaway and Foster, supra at n.18 (quoting Brennan, J., in Re Drake and Minister of Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Aus. AAT, Nov. 21, 1979) at 639.
480 U.S. 421, 436-37 (1987).
Id. at 439.
Deborah E. Anker, Law of Asylum in the United States (2023 Ed.) (Thomson Reuters) at 20-21.
Karen Musalo, “Aligning United States With International Norms Would Remove Major Barriers to Protection in Gender Claims,” International Journal of Refugee Law (2024).
The schooner Charming Betsy sailed into Supreme Court history. Hon. Jeffrey Chase and other legal experts aren’t “charmed” by AG Merrick Garland’s approach to binding international standards for asylum! PHOTO: The Constitutional Law Reporter
Thanks, “Sir Jeffrey” for a great and timely analysis!
For the second successive Administration, we have an Attorney General who does not take seriously his oath of office to uphold the Constitution and laws of the United States when it comes to those seeking asylum.
Garland has too often signed off on regulations and policies that are clearly at odds with domestic and international law as well as our Constitution. The current abominable proposed regulations, referenced by Jeffrey and opposed by all experts on asylum law and human rights, are just the latest example. Those politicos behind these toxic policies won’t confront in person or acknowledge the well-documented unnecessary human trauma and degradation caused by scofflaw actions and policies that intentionally fail to make fair, humane, safe, and timely asylum processing available to all who come to legal ports of entry as required by law (not to mention human decency)!
Under the Trump administration, most of the people we met there [in immigration detention in the Dodge County Jail] had benefits (some protection against deportation) that they were eligible for. They were asylum seekers, people with family ties, or people with DACA (people who were brought to the U.S. when they were children). It would be shocking every time I went to see the number of people that needed representation. They had strong claims to remain in the U.S. and often had family ties. Some were employed at certain jobs for a very long time and had no criminal record.
. . . .
Everybody deserves a fair chance, and legal representation is part of the fair chance.
Most people who have a conviction for an aggravated felony are not going to be allowed to remain in the U.S. But certain individuals are from countries that are unsafe for them to return to, and our laws say we will never deport anybody that will more likely than not be tortured or killed. And these individuals need representation because the stakes are so high.
No one is perfect, and our legal system certainly isn’t perfect. But without legal representation, we cannot ensure that people have their rights and have a fair due process in immigration proceedings.
. . . .
Every day, I witness the politicization of this topic. And political parties are taking on the rhetoric to fearmonger in a lot of ways. I find that horrifying and discouraging.
I can understand why these ads and messaging incite fear and why people can be scared by the messaging, even though the messaging is often untrue. It scares me that that’s what we’re doing to people that I work with everyday, who are mostly families and children who’ve become part of our communities.
. . . .
Q: Tell me more about the work you’re doing in collaboration with others in Colombia.
A: The program is called Safe Passage. It’s a collaboration with Sara McKinnon at the Department of Communications, us at the Law School, and Jorge Osorio at the Global Health Institute.
People often have to take an extremely dangerous journey just to arrive at the southern border to ask for asylum in the U.S. We are looking at whether some alternative, regular routes for migration can be beneficial in decreasing the pressure on the southern border.
. . . .
The last time I was in Colombia, there were people from all over the world. There were people from Afghanistan who probably had very strong claims for asylum. There were people from China, and they generally have very high approval rates for asylum. But in order to seek the benefits under the law, they have no option but to take a very dangerous journey.
So I think if we were able to expand the safe mobility offices in these other countries to process applications from other people who could potentially be eligible, we could ensure safety and take pressures off of the southern border. I think that’s something that everybody wants.
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Read the complete interview at the link.
Here’s a comment about Erin that I recently received from Professor Juliet Stumpf at Lewis & Clark Law:
I had the pleasure of meeting Erin when we both took students to Tijuana to work with asylum seekers at Al Otro Lado in 2020. She is a wise, kind, and collaborative colleague, and I was lucky enough to benefit from her deep experience and her generosity in sharing it.
Tom and I had the honor of appearing at a recent luncheon at U.W. Law hosted by Erin and her colleague Professor Sara McKinnon to discuss our proposal with students.
What a difference it makes to hear from experts like Erin and Sara who actually understand the laws, the realities of forced migration, and deal directly with the human trauma caused by short-sighted government“deterrence only” policies. The latter, promoted by politicos who have lost their moral bearings, intentionally misconstrue or ignore legal protections for migrants while failing to acknowledge or take responsibility for the proven, unnecessary human trauma caused by bad policies like “Remain in Mexico, “Title 42,” and “Mandatory Detention.”
That same report showed that “violence against migrants transit[ing] Mexico is escalating, the study found: 39.2% of interviewees were assaulted in the country, while 27.3% were threatened or extorted – with the actual figures likely higher than the official statistics as victims tend not to report crimes committed against them.”
Yet, despite these facts, politicos of both parties shamelessly press for the reinstitution of these demonstrably harmful, ineffective, immoral, and arguably illegal policies. Never do they acknowledge or discuss the infliction of human carnage they are irresponsibly promoting. Perhaps even worse, the so-called “mainstream media” seldom, if ever, has the integrity to confront these politicos of both parties with the deadly human consequences of the immoral, yet predictably ineffective, actions they advocate!
WASHINGTON — Senators were sworn in Wednesday for their third impeachment trial in four years, this time of Homeland Security Secretary Alejandro N. Mayorkas.
Three hours later, they had voted along party lines to dismiss both counts against Mayorkas.
House Republicans, who say Mayorkas has failed to fulfill his duties in upholding immigration law, pushed for a full Senate trial of the case against him. Senate Democrats called the allegations baseless.
. . . .
“Today’s decision by the Senate to reject House Republicans’ baseless attacks on Secretary Mayorkas proves definitively that there was no evidence or Constitutional grounds to justify impeachment,” Department of Homeland Security spokesperson Mia Ehrenberg said in a statement. “It’s time for Congressional Republicans to support the department’s vital mission instead of wasting time playing political games and standing in the way of commonsense, bipartisan border reforms.”
Ian Sams, a White House spokesperson, added that “President Biden and Secretary Mayorkas will continue doing their jobs to keep America safe and pursue actual solutions at the border.”
Senate Majority Leader Charles E. Schumer (D-N.Y.) sought to accommodate the wishes of Republican colleagues in agreeing to a period of debate before moving to dismiss the case against Mayorkas.
Engaging in a full trial “would be a grave mistake and could set a dangerous precedent for the future,” he said, urging colleagues to save impeachment “for those rare cases we truly need it.”
Schumer said the first impeachment article — for “willful and systemic refusal to comply with the law” — does not allege conduct that rises to the level of a high crime or misdemeanor and is therefore unconstitutional.
After breaking to discuss how best to proceed, Republicans began stalling by initiating a series of increasingly far-fetched motions, which failed:
. . . .
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Read Andrea’s full report at the above link.
I’ve often expressed doubts about whether Mayorkas is the right person for the job at DHS. This has been based primarily on his failure to stand up for and effectively implement the legal and moral right to seek asylum, at the border and in the interior, and his lack of leadership and creativity in addressing backlogs at DHS. But, that’s hardly a basis for impeachment.
The GOP is a party of insurrection and lawlessness, particularly in their attempts to eradicate the rights of asylum seekers, led by a man with absolutely no respect for the rule of law except where it personally benefits him. The GOP House has failed to constructively address a number of important governance issues, including Ukraine aid, while finding time for this wasteful nonsense. For the scofflaw GOP to pursue frivolous charges of impeachment against Mayorkas for not “complying with the law” has to be one of the greatest examples of “chutzpah” in recent political history.
Last Tuesday, in an interview with Univision’s Enrique Acevedo, President Joe Biden again said he’s considering issuing an executive order to ban asylum at the border. It’s an idea that Biden has floated before as the presidential election season slogs on, and after the bipartisan border bill meltdown in Congress. “We’re examining whether or not I have that power. Some are suggesting that I should just go ahead and try it,” Biden told Acevedo. “And if I get shut down by the court, I get shut down by the court.”
If Biden were to do such a thing, he would rely on Section 212 (f) of the Immigration and Nationality Act (INA), which gives a president the authority to suspend entry or place restrictions on noncitizens.
If this sounds familiar, it’s because Trump tried this several times during his presidency, most notably with the xenophobic Muslim ban. None of them were successful, and they only injected more chaos into an already beleaguered immigration system. So why is Biden proposing this idea now? The Border Chronicle spoke with immigration expert Aaron Reichlin-Melnick, policy director at the American Immigration Council, about Biden’s proposal and what an asylum ban would mean for asylum seekers and border communities.
Biden is floating the idea of issuing an asylum ban. How will this impact people seeking asylum at the border? And can the president actually, you know, just shut down the border?
So I’ll start with the second question. The answer is no. Though there are some authorities that get you somewhere close to it, like Title 42. But it’s important to understand the distinction between the legalistic aspect of issuing an order that further bans crossing the border and actually, effectively shutting down the border.
The best example of issuing an order that I would point to is President Trump’s 212 restriction from November 2018, through February 2021, which suspended the entry of all migrants crossing the border illegally. So we already know what it looks like when a president invokes Section 212 (f) of the INA to suspend the entry of migrants. What it looks like is nothing, because nothing happened. And that is because it is already a violation of immigration law to cross the border without inspection. And so adding another reason, you know why that’s not allowed, doesn’t have any practical impact on people who simply walk across the border or wade through the river or climb over a wall. Because the important question is not whether a person is committing an unlawful act by crossing. The important question is, what can the U.S. government do to respond once a person is on U.S. soil? This is why Section 212 (f) is not a good tool for addressing irregular migration.
The other question is, how does that affect people seeking asylum? Well, not very much. We saw this with the Trump administration, in order to carry out their 212 ban. They had to do two things: They had to issue the proclamation suspending the entry of migrants. And then separately, they passed a regulation saying, we are going to ban asylum to anyone who crosses the border in violation of the proclamation. And it’s that regulation that got struck down as unlawful with a court in California, and then the Ninth Circuit saying and affirming that what that amounted to was a total ban on asylum for people who enter the country illegally, which is simply not permissible, because the INA says people, no matter how they arrive in the United States, may apply for asylum.
Photo courtesy of Aaron Reichlin-Melnick
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I think people often forget about this, right? I mean, the law says that you can arrive anywhere at the border and ask for asylum.
You can arrive anywhere, and you can have any status. You can be documented, undocumented, you can enter legally or illegally. The key issue is whether or not you are physically present in the United States. And in that case, then they are allowed to apply for asylum. Now, the Biden administration has imposed an asylum restriction that does target people primarily by how they enter the United States. It is currently on appeal at the Ninth Circuit, and the legality of it is not entirely clear. This is the circumvention of lawful pathways rule from last May. The Biden administration basically argued that it wasn’t a total ban on asylum, because it wasn’t technically based on the manner of entry, so it didn’t violate the INA. I think that was a weak argument, though.
If Biden were to implement the ban, would it impact legal migration?
Probably not at all. This would be a restriction, like the Trump restriction, that would apply only to migrants who cross the border between ports of entry, not those who go to ports of entry. So it would probably have no impact at all on legal migration. The crucial thing to understand is that, as a practical matter, even if they do manage to get an asylum restriction in place, which passes court muster, actually carrying out that restriction on migrants at the border is a very different story. And as we are seeing today, with the circumvention-of-lawful-pathways rule, even if you have banned asylum to nearly everybody crossing the border illegally, that does not actually mean that nearly everyone who crosses the border illegally is restricted from seeking asylum.
What impact could the asylum ban have on border communities? Do you think we’d see a buildup of people on the Mexican side and in camps just sort of waiting and trying to figure out what to do?
Anytime a new policy goes into effect, there’s a wait-and-see period. The Biden administration is already maximizing credible fear interviews. So it wouldn’t have a major change on how people are processed at the border. Other than that, the few 15 percent who were even put through credible fear, they would get denied. But even then, not all of them would get denied because, crucially, an asylum ban is discretionary. It’s just an asylum ban, and there’s more to humanitarian protection than just asylum that migrants can potentially invoke to avoid rapid removal or deportation proceedings. There’s withholding of removal, which is a form of asylum that’s harder to win and offers fewer benefits. And there’s protection under the Convention against Torture. So even today, people who are not eligible for asylum are still managing to pass their fear screenings because they could demonstrate eligibility for withholding or eligibility for protection under the Convention against Torture.
So, realistically speaking, having this asylum ban applied to 100 percent could mean only a few hundred people more a month being ordered removed. Not a huge shift. But for those people, obviously a very, very dramatic change. The question then is, how does the Biden administration talk about this? Does the ban discourage some people from showing up? You know if they falsely believe that this is a major shift? And, of course, how does Mexico respond?
These are the questions that are more important, because with Section 212 (f), I don’t see a way for the president to re-create something like Title 42, where people are simply expelled back across the border without being able to seek asylum. Even the Trump administration acknowledged that that’s not something that they could do with Section 212 (f).
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What strategy do you think Biden’s using here by floating this idea? Is it purely for political reasons? Because it’s an election year?
I don’t know. I think there’s a reason that they haven’t done anything yet. And that reason is likely to do with the fact that the lawyers have probably explained to Biden what happened when Trump tried and how unsuccessful that was.
Has the narrative around immigration and the border become so removed from reality that it’s just not helpful at this point?
Yes, I do think so. People want an easy solution, you know, build the wall, what have you, and are not acknowledging that this is an issue that the United States has been facing for, in its modern form, for 15 years. If you go back further, 100 years, really, ever since we first made it illegal to cross the border, we’ve been dealing with the challenges of how do you enforce that law? If you go back to the late 19th century, when Congress passed the Chinese Exclusion Act, the United States created a Bureau of Immigration where they had an entire division whose job it was to try to stop Chinese people coming in from Mexico and Canada. And then, in the early 20th century, the biggest issue at the southern border was Mexican migrants crossing the border without permission. We have a nearly 2,000-mile land border on the south and a 3,000-mile land border on the north. That is a lot of territory to patrol even in a modern world with technology. And the United States has been through a period of high migration for 40 out of the last 50 years. For 40 years it was Mexicans, not entirely, of course, and there were Central Americans during the death squad years of the 1980s, who came to the United States for safety.
But the real shift that’s happened in the last three years has been people from further abroad. And it is just a challenging issue in a world that is more interconnected and hypermobile than at any point in human history. And we have to acknowledge that complexity when we talk about how to address this issue.
I think when people are talking about, you know, just shutting down the border, they forget about the billions in trade and citizens from both sides who are crossing the border every day.
Right, exactly. Oftentimes, people don’t even think about that, you know, most people don’t know that about the half a million people who enter the United States every single day at the southern border. That’s at least 16 million entries a month. And that’s people legally crossing back and forth for school, for work, for commerce, or tourism. So when people say, “Let’s shut down the border,” they mean to migrants, but they’re not thinking about the rest of it. And you have to go back to this question of, is that something the United States can do or wants to do? Let’s say you build a Berlin Wall with, you know, gun towers, and Trump’s moat filled with alligators and shoot migrants in the legs. That probably would deter some people. But then are you a country that is murdering people for trying to seek a better life? Do we want to be that kind of country?
So here’s a really tough question. Do you have any solutions?
An overwhelming majority of people who would like to come to the United States have no legal pathway to do so. Alternate pathway strategies are key. This puts a focus on those who haven’t yet made the decision to leave. I think it’s important to put that in that framework. Because once people have already left, they have sold their house, they’ve abandoned the lease, they, you know, liquidated a lot of their savings, they may have sent a child to a parent or an aunt or uncle. All of which means, at that point, that simply going back becomes much harder.
We also have to address the root causes for why people leave their home countries, which is the hardest to do, of course. This would require the United States to reckon with its own record of foreign policy in Latin America, which is something a lot of politicians do not want to do. Alternate pathways are a good middle ground there, because you can give people an opportunity to come to the United States temporarily and legally without breaking any laws, starving the smugglers of resources. And making it easier for people to get here without falling into the hands of bad actors.
Once people are at the border, though, it’s a different story. There have to be better options for people to cross legally at ports of entry. People still need the opportunity to seek asylum. But there should also be an enforcement component for people who don’t fall within our asylum laws. Right now, the issue is that the system can’t easily distinguish at the border between those who have slam dunk asylum claims from those who just want to come here for a better life. And that is because for years Congress has failed to provide enough resources to the asylum system, humanitarian protection, systems screening—all of that is grievously underfunded and has been for decades.
Given the scale of migration we see today, the system has buckled under its own weight. So, we have to build the system back up and allow it to function. And that means delivering a yes in a reasonable time and delivering a no in a reasonable time regarding asylum claims. You know, it shouldn’t take seven years.
And it’s important to keep reminding people that these issues didn’t just start in 2020 with the Biden administration.
This is not a new issue. And it’s one that requires us to think outside of a partisan lens. This is about U.S. government capacity, the underlying legal structures, and U.S. foreign policy across the region, which has gone on for generations. The underlying legal authorities haven’t changed in decades. And the external circumstances have changed dramatically.
The ability of migrants to get to the border is easier than it has ever been. Flights are cheaper, and people have cell phones and Google Translate. In the past, if you wanted to get to the border, you would need to speak some Spanish, you would need to know someone. Now you can find all the information online. You can find it circulating on WhatsApp, Telegram or TikTok. And once you’re in a foreign country, you know, if you’re an African migrant who speaks French when you come through Mexico, you can use Google Translate to talk to other migrants and find out what they know. And so moving and migrating across the world is easier now than it has ever been. And that’s not necessarily a genie that we can put back in the bottle. And I think people need to acknowledge that and start thinking more broadly about what that means for the modern world.
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Undoubtedly, as noted in this interview, “the narrative around immigration and the border [has] become so removed from reality that it’s just not helpful at this point.”
The nativist GOP doesn’t want to acknowledge the reality of immigration, including by refugees and asylees, its inevitability, and its proven long-term benefits to America.
By contrast, Dems are afraid of the reality of immigration and too politically timid to stand up for the right to apply for asylum.
What both parties have in common is that they are perfectly willing to accept the benefits of immigration of all types — after all, this is a nation of immigrants — while denying the very humanity and the legal and human rights of those courageous and talented individual immigrants, of all types and statuses, who have built our nation and continue to do so. 🤯🤮👎🏽
“Do you support American taxpayer dollars being used to fly illegal immigrants from countries like Venezuela and Haiti into America to be settled in cities and towns near you? If so, then vote against me. Vote no to preserve this practice of using taxpayer dollars to charter planes that move and import thousands of illegal aliens into your states.”
— Sen. Bill Hagerty (R-Tenn.), in a speech on the Senate floor, March 23
“Have you had to cancel or rethink any upcoming summer trips because of high prices? Don’t worry — your taxpayer dollars will be used to pay for illegal immigrants to fly into a town near you.”
— Rep. Mark Green (R-Tenn.), chair of the House Homeland Security Committee, in a post on X, April 2
Two lawmakers from Tennessee have issued misleading statements about a Biden administration program that permitted an increased use of a process known as humanitarian parole for migrants from Cuba, Haiti, Nicaragua and Venezuela. Hagerty offered an amendment to a spending bill — defeated in a party-line vote — that he said would prevent taxpayer dollars from being used to fly in migrants. Green, on X, posted a Fox News article — headlined “All Senate Dems vote against barring taxpayer funds to fly illegal migrants to US towns” — and made a similar claim.
Under the Biden program, people from these countries who try to cross the border without the proper paperwork are ineligible for parole and subject to expulsion. Instead, before arriving, they must receive authorization to travel to the United States and a statement of financial support from a sponsor.
As of the end of February, the Department of Homeland Security says, more than 386,000 people from those countries had arrived lawfully in the United States and another 19,000 were vetted and authorized to travel. In other words, they are not in the country illegally, despite the rhetoric in the statements.
And beyond the question of whether these immigrants are “illegal,” if you listen to Hagerty and Green, U.S. taxpayers are footing the bill for their travel. That’s wrong.
. . . .
Four Pinocchios Source: WashPost
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Get all the relevant facts in the complete report at the link!
Dems appear “chronically afraid of touting success” when it comes to immigration. These programs show that with leadership, creativity, and coordination, robust, realistic legal immigration programs will garner public support, be cost effective (particularly when compared with expensive, wasteful, ineffective, cruel “detention and deterrence”), take pressure off the border, and maximize America’s ability to capitalize and maximize the benefits of human migration.
Despite the GOP’s disingenuous denial, human migration, including forced migration, is a reality! The countries that eschew “GOP-style” fear-mongering, xenophobia, and nativism to work with and manage human migration in an orderly, fair manner will own the future.
Angel of Death Artist: Evelyn De Morgan 1880 Public Realm The Angel of Death (“AOD”) comes for another asylum seeker at the border. American border policies have needlessly and heedlessly created “full employment” for the AOD!
Arelis R. Hernandez, Mariana Dias, Danielle Volpe report from Eagle Pass, TX for WashPost:
“If they’ve been in the water awhile, their skin gets pruned and webby and starts to peel off. Their eyes, nose and mouth get swollen,” [Sgt. Aaron] Horta said with a far-off look in his eyes. “For a while, I couldn’t sleep.”
By the end of 2022, Horta had recorded 225 deaths. He said it bothers him when no one claims a body, so he tries to do what he can. This past Thanksgiving, 11-year-old Cristal Tercero Medrano of Nicaragua drowned while wearing a bright-yellow Tweety Bird sweater. Horta worked with Border Patrol agents to identify her. Not long after, they found the girl’s family. Relatives sent in a photo of Cristal wearing the same yellow sweater.
“I get mad, as the father of a little girl,” Horta said. “There should be a process that isn’t the river. It gets to me, but I have to be a professional.”
. . . .
As she swiped through the images in her photo album, she landed on one of a boy in his late teens who had been in the river so long that the current had wiped the features of his face away. In another, the braces inside the mouth of a sun-scorched child were still visible. Behind [Justice of the Peace Jeannie] Smith were rows of folders detailing each death.
“River. River. Ranch. Ranch,” she said as she thumbed through the files. “John Doe. Jane Doe. John Doe. Fetus, the mother gave birth at the river, but the baby didn’t survive. They come from everywhere. I say a little prayer for each one.”
. . . .
“There’s no dignity in this,” [forensic scientist Kate]Spradley said. “But this is what our state deems acceptable.”
. . . .
As for the total fiction that immoral politicos dishonestly present (and the “mainstream media” too often mindlessly and uncritically repeats) that “deterrence — even by death” will stop forced migrants from seeking legal refuge:
[Evelin Gabriella] Gue [of Guatemala] said she and her relatives are still struggling with denial and hoping that the body Texas officials found was not her mother. They want her home, if for nothing more than to be absolutely sure it is her as they grieve. Consular officials have confirmed to the family that it is her body, though they have not submitted DNA for further verification.
Cú Chub’s family is still in debt. To pay off the loan they took out for her to migrate, they may soon make the same journey that cost them their matriarch.
So much for the deadly, irresponsible “bipartisan BS” spouted by politicos who have lost their humanity and their sense of decency!
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Everyone should read the stomach-churning complete report at the link.
It has lots of dramatic color photography, so folks can get “face to face” with this preventable human carnage. These are the truths and consequences that should — but aren’t —being heard and heeded as border enforcement is discussed.
For the same amount, or likely much less, that governments at all levels are squandering on uncoordinated “proven to fail, illegal, gonzo enforcement and false deterrence,” that enriches cartels and human smugglers while killing legitimate refugees and harming our national psyche, the U.S. could build a first-class, timely, legally compliant, processing and resettlement system for forced migrants here and abroad that would reduce unnecessary border tragedies while capitalizing on the positive power of migration in today’s world.
As safe corridors for migration disappear, more people risk their lives crossing the U.S.-Mexico border. And more people die. A new report by the nonprofit No More Deaths, along with a searchable map and database, documents the increasing number of migrant deaths at the border in New Mexico and far West Texas. Until now, not much research has been done on the deaths of people migrating through this section of the border. The project was led by Bryce, a No More Deaths volunteer (who asked that we not use his last name because the Far Right has recently been targeting the group). He, along with several others, have created the most comprehensive database to date of deaths in the Border Patrol’s El Paso Sector, which includes New Mexico and two counties in Texas, El Paso and Hudspeth. The report covers 15 years, from 2008 to 2023, and it shows many disturbing trends, including the acceleration of deaths that has accompanied “prevention through deterrence,” the U.S. government’s strategy implemented in the 1990s to push migrants into more remote, dangerous crossings. That strategy is now morphing into something all the more tragic as people, increasingly women and children, are barred from accessing asylum and are dying at the doorstep of American cities and towns. In this Q&A, Bryce talks about documenting these deaths, and the discoveries that both shocked and angered him in creating this new report.
Why did you study this particular part of the border in New Mexico and far West Texas?
A couple of years ago, a few of us started getting interested in what’s happening in New Mexico, and whether there’s any need for humanitarian aid out there, just because we hadn’t really heard anything but assumed there must be something happening out there. Quickly, we noticed that there was not much data in general about the area. So I started doing public records requests. And pretty quickly, just with the first batch of data, we got about 20 deaths for 2022. We went to some of those locations to see if we’d see trails. And while we were checking out some of these locations, we found human remains right across the street from a cemetery and about 50 feet from a main road in Sunland Park [New Mexico]. It was not a remote place. It was right in town. So we started looking at the Sunland Park Fire Department’s social media page, and quickly realized that there was a lot happening and quickly. And then 2023 ended up being this record deadly year for the area.
It’s shocking that you found a dead person right there in the middle of Sunland Park. Can you tell me more about this person? Were they identified? How long had the person been there? And how could this have been missed by people who live there?
He was later identified as a man from Colombia. [His name was Johan Orozco Martinez, age 36.] He had been there for a couple of days. I’m not joking when I say he was right across the street from the Memorial Pines Cemetery, and near the shoulder of the road. Many cars drive this road, but I think typically people look toward the cemetery, and I guess they didn’t see him because they were looking in the other direction. He was in his 30s and so older than many of the usually young men you see, for instance, crossing through southern Arizona.
Two findings that really stand out to me from your report are the number of women who have died, and how increasingly people are dying within city limits and no longer just in remote areas that are hard to access. I mean, you found a person in the middle of Sunland Park. What’s going on, do you think?
The dynamics of migration are complex. But one thing that seems pretty clear is that the asylum policies in the last few years have led to an increase in some of these deaths, just from people trying to get asylum and being prevented either by metering or by turnbacks. And then feeling they have no choice but to cross through the desert. A lot of people who are crossing are older, they’re women, they’re people with health problems. The demographics, we found, were much different in the El Paso sector than in southern Arizona, with people being older and more than 50 percent of the deaths in 2023 being of women, which is unusual.
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When did the deaths start increasing? And has the increasing militarization of the border and Operation Lone Star in El Paso contributed to these deaths?
Up until 2015, there were very few deaths in this area. But especially since 2018, the deaths have just been ramping up every single year. We were in New Mexico watching Operation Lone Star soldiers put up a barbed-wire fence between New Mexico and El Paso in an area where a lot of people cross. So once you’re in the United States, even crossing into Texas from the New Mexico side has become more deadly. And you can see National Guard in El Paso patrolling and pushing people back. The more enforcement, the more the deaths increase. In El Paso, there are what I call “moats” because if people climb the border wall, there’s an irrigation canal right on the other side, which at times can be moving very quickly. Then beyond that there’s multiple highways and more canals. So if someone is being chased by Border Patrol or Operation Lone Star, there are multiple deadly obstacles.
In 2022 there was a two-week period when 15 people died in the canals, one right after the other. This was during irrigation season in El Paso. Water is released from a reservoir in New Mexico into the canals and the river to irrigate farmland further east of El Paso. When that happens, the water can be going like 20 miles per hour. Unless somebody physically rescues you, there’s no way of getting out once you’ve fallen in. I watched a news broadcast in El Paso where they made a public service announcement about drowning deaths in El Paso, saying like, “Irrigation season is here, stay away from the canals, watch out for drowning.” But if you read all the autopsy reports, it’s almost all migrants dying. Because the medical examiner doesn’t flag whether it’s a migration-related death, you end up getting these weird statistics about drowning deaths being on the rise in El Paso. And so they’re directing these public safety messages toward El Paso residents who are actually in very little danger of drowning. And the people who are in danger of drowning, the migrants, have no idea.
Did you also find an increase in the deaths of children?
Definitely, yes. In 2018, two eight-year-old Guatemalan kids died. There’s a lot of teenagers dying, crossing the border wall, a lot of them drowning in El Paso city itself. For instance, there was a Russian man and his teenage daughter who both fell into a canal and drowned. They were running from Border Patrol agents. I believe that happened in 2021. We saw fewer deaths of younger people in New Mexico.
You also found that Customs and Border Protection is significantly undercounting deaths related to enforcement. Can you talk about this finding?
CBP is supposed to keep track of migrant deaths and CBP enforcement-related deaths, but we found that the agency is severely undercounting them. There’s been a lot of documentation in the past, talking about that fact, but there hasn’t been a whole lot of quantifying that undercount. Aside from the Arizona data that the Pima County Office of the Medical Examiner and Humane Borders have reported. For example, in one year we found 39 deaths, while CBP reported only 10 deaths.
We looked at investigator reports and so we were able to read the narratives, and learn circumstances around the deaths. We were able to see if someone was chased by Border Patrol, either on foot or by vehicle, or if they died in Border Patrol custody. We found that Border Patrol had tried to underplay some of these deaths.
We found that 15 percent of all migrant deaths in the El Paso sector were caused directly by Border Patrol due to chases or use of force, also due to custody deaths, or falls from the border wall. Humane Borders doesn’t track deaths related to Border Patrol enforcement. So this is the first instance that I’m aware of, where we are able to quantify the CBP undercount of Border Patrol-related deaths.
For 2022, for instance, we found 16 deaths that should have been reported by CBP as CBP-related deaths. CBP had only reported six of those deaths. Of the 16 we found, I think it’s still an undercount, because a lot of the investigative reports use vague or passive language about a person “jumping into the canal,” for instance. So you don’t know if the person was actually chased. So we only included cases where it’s very explicit.
What surprised you most in working on this report?
It’s really just shocking how close to help a lot of people died. I’m used to southern Arizona, where the terrain and trails are very remote. But we found people dying across the street from the cemetery, people dying a short walk from the Dollar General store. We’ve had this narrative of “prevention through deterrence” for the last few decades, which has pushed people away from cities into remote areas where they’re more prone to dying from heat exposure or something else. But now the border is militarized to the point where even Sunland Park, this suburb of El Paso, can be as deadly as the middle of nowhere in southern Arizona.
Last June, for instance, something like 40 percent more people died in Doña Ana County in New Mexico than the entire state of Arizona. Most of these deaths were close to the highway or close to a town. It’s a dynamic that has not really been studied. And the fact that it’s been happening for years without anybody really noticing is really scary.
With these findings, are No More Deaths and other humanitarian groups mobilizing to do search-and-rescue and water drops in this area?
Like Texas, much of the land in New Mexico where people are dying is privately owned land, so it’s difficult to access for humanitarian groups.
We’ve been going there about once a month for the past year to try to organize some support. There’s a group that doesn’t have a name yet that we’ve started to work with, that’s putting out water in some of these areas. There’s another group from southern Arizona that has moved over to New Mexico to search for remains in the desert.
We’re hoping the news will spread and that others will join to help. We have some money to help out some groups that are forming. We’re really hoping that groups will form on their own for search-and-rescue and putting out water. Because right now, Border Patrol is the only game in town if you call 911 as a migrant. And Border Patrol has a horrible track record of actually helping anybody.
To get involved, learn more, or support humanitarian efforts, contact No More Deaths here.
A complete lack of accountability for the misguided politicos and bureaucrats who are dishonestly pushing these immoral and ineffective policies without “owning up” to both the known deadly consequences and the lack of long-term “deterrent” value (even assuming, as I do not, that effective deterrence could justify immoral and illegal policies) of the actions they are touting; and
A complete abdication of professional journalistic standardsand performance from the many members of the so-called “mainstream media” who fail to include in each report on draconian “border control” proposals and “policies” the deadly, well-documented human consequences of those policies and who provide a toxic forum for politicos and supposed “pundits” spouting myths andnativist propaganda about “border enforcement,” without presenting experts like Melissa, Todd Miller and many others who have actual experience with the unending trauma and futility caused by our current misguided, often flatly illegal, and clearly immoral approach to “border enforcement.”
While most of the debate over immigration focuses on the U.S.-Mexico border, one of President Joe Biden’s most effective policies so far has occurred elsewhere ― at airports.
For a little over a year, Biden has used what’s called “parole” authority to collectively allow up to 30,000 vetted Cubans, Haitians, Nicaraguans and Venezuelans per month into the country, mostly via air travel, for a temporary two-year window.
The program is based on the authority held by the federal government under the 1952 Immigration and Nationality Act to grant temporary admission to foreigners on a “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” And, the Biden administration touts, it has been accompanied by drops in the number of nationals from each of these countries who’ve crossed the U.S.-Mexico border on foot.
But to hear some right-wingers talk about it, the “CHNV parole” program — the name an acronym for the nationalities it encompasses — is a secret, treasonous endeavor that utilizes government-funded charter flights to transport “illegal” migrants into the United States. None of that is true, but that doesn’t seem to be the point.
“I don’t know of anyone in Congress who knew this!” exclaimed Sen. Ted Cruz (R-Texas) on a podcast episode, just 14 months after Biden himself announced the CHNV parole program during a public press briefing and despite regular publications of data on the program by the Department of Homeland Security.
The false accusations of secret taxpayer-funded charter flights ferrying unvetted migrants to new lives in the United States plays into Republican attempts to cast immigration issues as a major crisis — and one on which Democrats are failing — ahead of the 2024 election.
. . . .
The precedent to the CHNV parole program was introduced in October 2022, when the Department of Homeland Security created a parole program for Venezuelans that was modeled on the Ukrainian program, requiring applicants to have a U.S.-based sponsor who’s financially able to support them and to pass vetting and background checks. In January 2023, the White House announced the program would expand to include Cuba, Haiti and Nicaragua.
Individuals from those four counties who meet the requirements and haven’t attempted to cross the U.S.-Mexico border between ports of entry are allowed to fly from their home countries into the United States rather than appearing in person at land border crossings.
Since January 2023, more than “386,000 Cubans, Haitians, Nicaraguans, and Venezuelans arrived lawfully and were granted parole under the parole processes,” U.S. Customs and Border Protection wrote in a February 2024 update.
“There’s no doubt that the CHNV program is by far the largest-scale parole program that any administration has done in decades,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council, a research and legal advocacy organization.
And data supports the administration’s claim that the parole program, as part of a larger package, has helped discourage “irregular” migration.
As the Cato Institute reported in September, illegal entries by Venezuelans fell 66% from September 2022 to July 2023 and from December 2022 to July 2023, illegal entries fell 77% for Haitians, 98% for Cubans and 99% for Nicaraguans. Compared with peaks in CHNV numbers in 2021 and 2022, the report added, July 2023 arrests for those four nationalities were down 90%.
“There has not been a single month where unlawful entries of the four countries combined has been above the level it was in December 2022,” Reichlin-Melnick said.
The White House announced the policy as part of a package explicitly meant to “increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry.” The Biden administration grouped the program with others meant to encourage “legal pathways” into the United States ― such as increased refugee admissions and asylum opportunities in other countries ― and alongside harsher border enforcement for migrants who broke the rules.
Naree Ketudat, a spokesperson for the Department of Homeland Security, told HuffPost in a statement that the CHNV parole process was part of a strategy to “combine expanded lawful pathways with stronger consequences to reduce irregular migration, and [has] kept hundreds of thousands of people from migrating irregularly.”
And yet many on the right have misrepresented ― or simply lied about ― what the parole program is, playing on anxieties about race and national identity to paint it as part of a supposed scheme by Democrats to overwhelm the country with new residents or somehow displace American citizens.
. . . .
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Read the complete article at the link.
Beyond the barrage of racially-driven GOP lies, Dems have failed to capitalize on the success of Biden’s efforts and its benefits to the U.S. economy. Significantly, rather than just “moaning and groaning” about the so-called “immigration problem,” the Biden Administration actually took innovative action to address the situation.
The GOP claim that the program is “secret” is a blatant lie! Yet, you would be hard pressed to find any recent examples of Biden, Harris, their campaign officials, or Dem politicos touting the success of the parole program or the critical role of immigration of all types in the continuing strong performance of the U.S. economy.
You would would be much more likely to come across disingenuous statements blaming the GOP for not giving Biden “authority” to close the border, violate human rights, inflict more needless cruelty, and otherwise dehumanize asylum seekers at the Southern Border. In this way, Dems unwisely are playing along with the GOP nativists and giving them “cover” for their lies.
I’ll admit to initially being somewhat skeptical about the parole program, mainly because it could be seen as deflecting attention from much needed reforms and revitalization of existing legal programs for the admission of refugees and asylees that had been intentionally “kneecapped” by the Trump Administration.
Of course, no “pilot program” like this — particularly one with nationality restrictions and somewhat arbitrary numerical limits — can solve overnight problems allowed to fester for years. Yet, the parole program has demonstrated important principles that should form the basis for more durable legislative reforms of our legal immigration system:
Given realistic options, most individuals would choose to be pre-screened and apply from abroad (i/o/w “If you build it, they will use it!”);
Private sponsorships can play a key role in the selection, welcoming, resettlement, and integration process for legal immigration;
Allowing immigrants to work immediately upon arrival — rather than forcing them into an overburdened and over-bureaucratized work authorization process — benefits everyone;
More robust legal immigration opportunities will reduce pressure on the border and keep cases out of the backlogged Immigration Courts.
Rather than being a “false bone of contention” in the “immigration debate,” innovations like the parole program should form an empirical basis for bipartisan legal immigration reform and expansion that will benefit our nation and those who seek to become part of it in the 21st Century.
Pass Immigration 101? Understand “mixed motive” and how it should be used to protect, not reject? Willing to stand up for due process and the legal and human rights of migrants? Prepared to promote justice and resist the evil culture of “any reason to deny?” We need YOU on the BIA today! “Revolution by evolution” is a crock. We need an aggressive “Due Process Revolution” from within EOIR NOW! Public Domain
United States Court of Appeals For the First Circuit
No. 23-1443
AMGAD SAMIR HALIM KHALIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.
March 29, 2024
RIKELMAN, Circuit Judge.
. . . .
We turn, then, to Khalil’s argument that the factual record compels the conclusion that religion was at least one central reason for his beating. We review the factual finding
– 15 –
against Khalil on this issue under the substantial evidence standard. Pineda-Maldonado, 91 F.4th at 87.
Here, a reasonable adjudicator would be compelled to conclude that Khalil’s religion qualifies as a central reason for the beating. Khalil’s attackers demanded he convert, beat him when he refused to do so, demanded again that he convert, and beat him more intensely when he again refused. The attackers’ own statements show that, regardless of whatever else prompted the beating, Khalil would not have been harmed had he agreed to convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021) (deeming perpetrators’ statements essential to the nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st Cir. 2013) (determining persecutors were driven by a religious motive that they “recognized and gave voice to” during their attack of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008) (explaining that perpetrators’ statements “are a crucial factor” for determining the central reason for harm); cf. Esteban-Garcia v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus because persecutors “didn’t say anything” about the applicant’s protected ground).
The attackers’ demands that Khalil convert to another faith and their increased violence in response to his refusal to do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), which the IJ relied on in finding that the beating was
– 16 –
the result of a personal dispute only. In Sompotan, we held that the record did not compel the conclusion that those who robbed the petitioners and their restaurant while yelling “Chinese bastard, crazy Christian, crazy Chinese” were motivated by religious and racial animus rather than by a desire to rob because “[t]he fact that [robbers] would stoop to the level of using racial slurs is, unfortunately, not surprising.” 533 F.3d at 70. By contrast, the attackers here did not make just a passing reference to Khalil’s religion. Rather, they made religious demands on him during the attack and beat him more vigorously when he refused to cede to those demands.
The arguments the government offers as to why substantial evidence supports the agency’s no-nexus determination do not alter our conclusion. The government emphasizes that Khalil recounted his attackers’ demands that he convert only in his asylum interview and written declaration attached to his asylum application, but not in his testimony before the IJ. But in evaluating whether substantial evidence supports the agency’s conclusion, we are tasked with reviewing “the record as a whole.” Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil described the beating exclusively during the government’s cross-examination, and the government strategically asked him only one question about what his attackers said during the beating: Did they reference the blood test results? The framing of the
– 17 –
government’s questions on cross-examination does not change our assessment of the record as a whole. The government also contends that, because Khalil testified that the imam had no issue with him until the imam found out about the blood test results, religion did not motivate the attack. But that argument ignores the attackers’ own words and actions.
For all these reasons, we find that the record compels the conclusion that Khalil’s religion played more than an incidental role in his beating. We therefore grant the petition for review as to Khalil’s asylum claim premised on mixed-motive persecution.5
. . . .
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Many congrats and much appreciation to the NDPA team involved in this litigation!👏🙏
Oh yeah, the BIA also screwed up the CAT analysis! 🤯
This is another classic example of deficient scholarship and an “any reason to deny culture” that Garland, inexplicably, has allowed to flourish in some parts of EOIR on his watch!
This is the REAL “immigration crisis” gripping America, and one that obviously could be solved with better-qualified judges and dynamic due-processed-focused leadership at EOIR!
“Revolution by evolution” is a meaningless piece of bureaucratic gobbledegook I sometimes heard during Dem Administrations to justify their often gutless, inept, and dilatory approach to due process at EOIR! What total poppycock! EOIR needs a dramatic “Due Process Revolution” from within! And, it needs it yesterday, with lives and the future of American justice on the line!
There’s an opportunity, open until April 12, 2024, to become a BIA Appellate Judge and start improving the trajectory of American justice at the “retail level!”
“A caste system is an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups.”
― Isabel Wilkerson, Caste: The Origins of Our Discontents
Last year, a dangerous and despotic Texas Governor Greg Abbott signed into law SB 4, heralding the legislation as a form of defense in his war against President Biden’s immigration policies that have apparently left Texas unsafe and vulnerable. Obviously, nothing could be further from the truth; in fact, Texas is privileged to be the second state in the union with the largest immigrant population that has contributed over $40 billion in federal and state taxes, with a spending power of more than $110 billion. According to a report by the Immigration Research Initiative and Every Texan:
Once provided a work permit, new immigrants earn an average of $20,000 in their first year, which increases to $29,000 by their fifth year living in Texas. […] For every 1,000 workers, immigrants and asylum seekers contribute $2.6 million to state and local taxes within their first year of eligibility. Far from a burden on Texas communities, newly arrived immigrants and asylum seekers are as essential to our state’s economy as they are to our families and communities.”
Abbott and the state have reaped from the contributions of immigrant families, regardless of immigration status, only to waste millions in taxpayer dollars to cruelly militarize the border against their own border communities and the children and families seeking refuge and safety. With SB 4, Abbott and Texas would make it a felony for any undocumented immigrant to enter the state and empower local law enforcement and state judges to arrest and deport undocumented immigrants.
. . . .
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Read Beatriz’s complete article at the link.
The proposition, uncritically reported by many in media and mindlessly repeated by politicos of both parties, that effectively eliminating asylum at the border, thereby turning the ability to seek protection in the U.S. over to smugglers, cartels, and thugs, will “enhance security” is beyond preposterous! Obviously, it will do the exact opposite by improperly treating desperate individuals seeking legal protection from the U.S. the same as the small number of actual security threats who might seek to cross the border (at least some of whom are actually caught).
Just ask yourself the question that the media never presses on Abbott, DeSantis, Trump, GOP nativists, or their spineless Dem enablers: Why would a “real terrorist” spend weeks or months trying to get a “CBP One” appointment to be screened by CBP? Alternatively, why would such an individual risk the irregular border crossing and then turn themselves in to CBP for processing or wait weeks in filthy conditions to be processed by CBP? Answer: Obviously, they wouldn’t.
There are many easier ways for those smuggling or seeking to engage in criminal behavior to enter (think thousands of miles of lightly guarded Northern Border, false visas, entering legally at an airport under false pretenses, or concealing contraband in legitimate commerce — the way most fentanyl enters the U.S.). And, they are all “facilitated” by the USG’s insanely bad policy decision to concentrate “law enforcement” resources overwhelmingly on those who present no realistic threat and want only fair consideration of their legal claims! Sure it generates (largely misleading) “numbers,” but does little to actually enhance security.
Indeed, one might well suspect that the inordinate hoopla and intentionally exaggerated fears focused on asylum seekers is largely a “cover-up” and diversion from the Government’s poor record on dealing with the fentanyl crisis.
As I have repeatedly said, what if the Feds and states stopped disingenuously wasting unconscionable amounts resources on bogus enforcement and deterrence and instead invested in building a fair and timely asylum reception, screening, adjudication, and resettlement system that encouraged and rewarded those presenting themselves at ports of entry? That would make it easier for law enforcement to concentrate on those actually seeking to avoid our legal system (rather than inanely concentrating on those who merely want our legal system to fairly consider their claims)!
What would happen if the “mainstream media” actually fulfilled their professional, ethical, journalistic responsibilities to research, understand, and report honestly about the right to asylum, those seeking it, and those assisting them in presenting their claims to an intentionally hostile and dysfunctional system! What if the media stopped uncritically and irresponsibly reporting nativist propaganda, such as Abbott’s babbling, as “news,” and began concentrating on informing the public of the truth about asylum seekers, the legitimacy of many of their claims, and their great potential benefits to America!
Last Tuesday, in an interview with Univision’s Enrique Acevedo, President Joe Biden again said he’s considering issuing an executive order to ban asylum at the border. It’s an idea that Biden has floated before as the presidential election season slogs on, and after the bipartisan border bill meltdown in Congress. “We’re examining whether or not I have that power. Some are suggesting that I should just go ahead and try it,” Biden told Acevedo. “And if I get shut down by the court, I get shut down by the court.”
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