"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
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For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
Hello friends,
As we move deeper into 2023, you may be, like we are, still
processing 2022 (or 2019, let’s be honest). For immigration, the
new year comes with its own challenges as a divided Congress
makes policy decisions difficult and a shift to the 2024 presidential
race takes hold. Nevertheless, we have to remain hopeful that
progress can still be made. And you can be part of that! To remind
yourself of what happened last year and learn what issues our
government can focus on, check out our special edition of Téa’s
Coffee where she goes to the Senate to meet New York Senator
Kirsten Gillibrand.
We hope you enjoy this issue as much as we do,
-The Immigrant Food Team
Check out the full issue
Several “quick takes” from Tea’s interview with Senator Gillibrand:
She has introduced an “Article I Immigration Court Bill” in the Senate and believes it’s the type of bipartisan initiative that might interest enough GOP legislators to form a “working bipartisan majority.” A similar bill introduced by Rep. Zoe Lofgren (D-CA) in the last House received a hearing and was favorably voted out of Committee, but was never taken up by the full House, see, e.g., https://lofgren.house.gov/media/press-releases/house-judiciary-committee-passes-lofgren-s-legislation-reform-us-immigration;
Sen. Gillibrand’s biggest fear for American democracy is “demonization and racism” of which immigrants and asylum seekers are prime targets;
She thinks the “biggest danger” comes from “White supremacist groups” — basically right-wing domestic terrorists.
Both Tea’s 2022 summary and the interview with Sen. Gillibrnd are well worth the watch and can be accessed at links above.
“Social Justice/Business/Courageous Leadership Dynamo”🌪 Tea Ivanovic was recently recognized as one of “Forbes 30 Under 30” by Forbes Magazine and a “Woman Who Means Business” by Washington Business Journal! She is an “NDPA New Generation Super-Star” 🌟 to watch, for sure! And, from a “DMV standpoint,” Tea is a proud Virginia Tech Hokie alum and a former varsity tennis player. Certainly, a person of unlimited talents who has chosen to use them for the public good! You can check out my previous “Courtside profile” of Tea here: https://immigrationcourtside.com/2022/09/10/🇺🇸🗽👍🏼-immigrant-nation-teas-truth-wisdom-americans-views-on-immigrants-and-immigration-are-overwhelmingly-positive/
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Lindsay Toczylowski
• 1st
Executive Director at Immigrant Defenders Law Center
13h • Edited •
13 hours ago
This is an idea that Yliana Johansen-Méndez and I have been talking about for a long time and I am so excited to see it come to fruition at Immigrant Defenders Law Center. We need more Spanish speaking attorneys ready to fight for our communities, and there simply are not enough to fill the need that exists currently. So, let’s change that.
That was the simple idea behind the ImmDef Spanish Immersion Project for Lawyers. Give people an opportunity to become the lawyers we need. Please share widely and encourage those interested to apply quickly – we anticipate this inaugural class will fill quickly! #jobposting#immigrationlaw#socialjustice#SpanishForLawyers
Here’s the link for more information about this innovative program:
Compare this creativity and action with the moribund bureaucracies and weak, unimaginative, timid leadership at DHS, EOIR, and DOJ. The wrong folks are running the immigration bureaucracy, and doing a really lousy job of it!
This Administration might “nominally claim” to recognize the importance of representation for asylum seekers and other immigrants and to encourage it; but, their actions tell a much different story.
The dysfunctional chaos at EOIR, culture of denial, “Aimless Docket Reshuffling” on steroids, poor personnel and staffing choices, failure to establish a constructive dialogue with NGOs and the pro bono bar, and the simply jaw-dropping, avoidable “extreme user unfriendliness of almost everything at EOIR” has been a huge “turn off” for those who might be considering taking on pro bono, or even low bono, cases. If anything, some practitioners have told me that they are cutting back on their Immigration Court work because it has become so stressful, all encompassing, and discouraging.
EOIR shouldNOT be operating in this insane manner in a Dem Administration! But, unhappy fact is that it is!
Here’s a chance to be on the front lines of the fight for democracy and social justice in America! Check out Immigrant Defenders Law Center!
Sitting in the chamber after 15 rounds of votes for speaker that felt like “democracy had been hijacked by a handful of extremists,” Rep. Hillary J. Scholten (D-Mich.) was left “wondering what in the world we had gotten ourselves into with this Congress.” But then she found herself clapping alongside Republicans when McCarthy promised that a GOP majority was committed “to stop wasteful Washington spending” while lowering the price of groceries, gas and housing for families. It’s a similar message to what Scholten ran on in a district where she beat a Trump-endorsed Republican and became the first Democrat in decades to represent her part of western Michigan.
“I campaigned a lot on fiscal responsibility,” she said in an interview. “At the center of fiscal responsibility is making sure that we are keeping our government running. I am looking for no-nonsense partners on the other side, and within my own caucus as well, who are not going to play games with the budget and our deficit.”
. . . .
Democrats are keeping an open mind about what legislation to tackle with Republicans, knowing that the GOP sets the tone for which bills to pursue on the floor. Democratic leaders have repeatedly said that their caucus will not support legislation proposed by far-right Republicans or policies that are too extreme, like a border security bill by Rep. Chip Roy (R-Tex.) that detractors say would end all asylum claims.
Scholten has spoken with Republicans about immigration reforms and how best to close supply chains so the United States can remain competitive globally without relying on foreign workers to do so. She and [Rep. Jared] Moskowitz [D-FL] both voted in support of establishing a select committee on China, crossing the aisle for the first time with 144 other Democrats.
In a sign of solidarity, Scholten and freshman Republican Rep. John James (Mich.) decided to sit together during their first State of the Union address to “demonstrate the spirit of bipartisanship” that has already helped them begin finding compromise on clean water legislation and to protect a fighter mission at a local Air National Guard base.
“I think it’s so important, especially in these troubling and trying times, to show that even as neighbors right here in the office and states-mates, that more unites us than divides us,” James said.
“We’re ready to get to work,” Scholten said before they high-fived.
Rep. Hillary J. Scholten (D-Mich.) and other freshman Democrats view President James Madison’s crystal flute, played by Lizzo in September, during a tour last month at the Library of Congress. (Jabin Botsford/The Washington Post)
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As those who know her predicted, Hillary is making her presence felt “right off the bat.” She’s also using her quick grasp of issues, collegiality, and outstanding team building skills that she was known for during her time as an EOIR attorney. Those are important attributes! I might add that they are in short supply at today’s dystopian EOIR, according to sources in the agency as well as those affected by its historically poor, and literally life-threatening,performance (or lack thereof) over the past two Administrations!
Always fun and satisfying to read about “the good guys in life” making progress and getting recognition! You can read the full article at the link!
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.”
I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court. Today was a classic example.
Went in with a case that we have spent weeks on end prepping for, seeking asylum protection for our client. We extensively argued our case. Govt attorney waived arguments & had no filings for today, last filing they made in case was in 2020. Yet the judge found that despite a finding of past persecution the govt had rebutted the presumption of a well-founded fear of future persecution.
So the govt atty who didn’t make an argument, who didn’t file anything was found to have successfully rebutted our claims. We plan to appeal, but the imbalance of power in an immigration courtroom, even when someone has an attorney, is profound. Without an attorney it is inhumane.
At the end of the hearing the judge excused the ICE attorney so he did not have to stay through the oral decision. So we sat there, with our client wiping tears from his eyes, and received the decision. We took notes on its mistakes. We reserved the right to appeal.
And I felt this pit in my stomach knowing that my client was seeing his life flash before his eyes, knowing this put him in grave danger. And yet the ICE atty, one of the principal ppl responsible for putting him at risk, couldn’t even bother to stay to the end of the hearing.
Picture of the mural that sits across from one of the immigration courts in DTLA, which seems so fitting on today and so many days.
Mural
Grateful to my colleague Alvaro M. Huerta who was an incredible advocate for our client today.
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A very sad commentary on the “culture of denial” still prevalent at EOIR and Garland’s failure to address it head on. Seems like the ACC knew how the judge would rule in advance.
I actually remember a long-ago time at the USDOJ when a “win” was “when justice was done” not just “another denial and deportation notched.” As a few “old timers” might remember, I actually incorporated it into my “welcoming speech” to new INS trial counsel when I was the Deputy General Counsel/sometimes Acting GC at the “Legacy INS.” In a GOP Administration, no less!
Times have changed, I guess, to where a Dem Administration and a Dem AG function “below the Reagan line!” Interesting, yet depressing!
The IJ “excusing” the ACC from the oral decision — at least a violation of judicial etiquette, disrespectful, and unprofessional, if not marginally unethical — shows just where things stand in a system run by a former Federal Judge who has forgotten what justice and public service are all about — at least when it comes to those stuck in his dysfunctional and unprofessional “courts!”
I always insisted that both counsel be present for the delivery of an oral decision. If that were impossible, because of time constraints or a legitimate personal emergency, then the obvious solution was to either 1) issue a written decision, or 2) invite the parties to return another day to listen to the oral decision. A third option was to record it “in chambers,” and have a JLC or intern transcribe and edit it for issuance as a written decision. I actually noticed when the INS ACC was working on the files for the next case or “secretly” looking at an i-phone under counsel table while I was dictating the oral decision. While I didn’t mention it, it did “inform” my opinion of them as attorneys.
Unfortunately, I wouldn’t count on Garland’s Trump holdover BIA to correct the egregious injustices on the merits of this case. The appeals system is also “programmed to deny and deport” — just as Sessions and Barr constructed it!
One might have thought that a Dem Administration and a former Federal Judge would be interested in bringing due process, fundamental fairness, and decisional excellence to one of the most important Federal “Court” Systems — one they totally control! Not so! This is most disappointing and enraging, particularly for those practicing in the “skewed against the individual” mess that Garland tolerates and enables!
And, folks, these examples, including the outrageous miscarriage of justice and impartial judging described by Lindsay above, just cover a period since January 27, 2023, a mere 16 days ago — basically just the “tip of Garland’s deadly iceberg of injustice at EOIR!”
While numerous examples of unfairness and unprofessionalism at Garland’s dystopian EOIR have surfaced, they are “just the tip of the iceberg” masking the huge disaster lurking below where Garland and his lieutenants fear to go! Created by Uwe Kils (iceberg) and User:Wiska Bodo (sky). Creative Commons Attribution-Share Alike 3.0
The unprofessional, disgraceful performance of EOIR described above, and the inexcusable failure to “clean house,” bring in qualified expert judges and professional judicial administrators, and support and institutionalize competent expert judging at EOIR, as represented by Judge Burgie and some others, would be disgraceful in ANY Administration! Coming during a Democratic Administration that RAN ON A PLATFORM of ending xenophobic, extralegal, nativist-motivated abuses directed at asylum seekers (often of color), immigrants, and their courageous, dedicated attorneys is totally unacceptable!
Yet, Senate Dems have failed to haul Garland and his lieutenants before the Senate Judiciary Committee to be confronted by those abused on their watch and to answer for their abject failure to bring due process, fundamental fairness, best practices, and competent, expert judicial decision making to EOIR’s dystopian, dysfunctional, and outrageously unfair “faux courts!”
As Lindsay says, “I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.” It does NOT have to be this way!
These are NOT life-tenured Article III judges! They are, as the DOJ is constantly reminding them, “DOJ attorneys.” GOP Administrations have demonstrated time and again the recognition that they have the power to “purge” judges who stand up for immigrants’ rights and due process and to “stack” the Immigration Courts against asylum seekers andimmigrants.
Garland has the power to do the opposite: “unstack” EOIR, bring in qualified judges and administrators who are recognized, respected experts in immigration law, human rights, and due process, and create a “model Federal Judiciary” and a source for future experienced, well-qualified Article III appointments.
In nearly two years of inept and dilatory “administration” of EOIR, Garland has failed to achieve, or indeed even attempt, these essential, long-overdue reforms. Indeed, so poorly has he performed on immigration, human rights, equal justice, and racial equity, that many dedicated immigration practitioners tell me that things are markedly worse now for due process and fair judging at EOIR than at the end of the Trump Administration.See, e.g.,https://immigrationcourtside.com/2022/09/21/-outrage-boils-over-at-merrick-garlands-milleresque-war-on-due-process-at-eoir-his-grotesque-mismanagement-of-immigration-courts-garland-might/, (Quoting Jason “The Asylumist” Dzubow: “But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.”)
As Jason Dzubow would say, “It didn’t have to be this way!” But, sadly, and outrageously, it IS this way! Eventually, that’s something that the Democratic Party will have to answer for! Unfortunately, some of their “victims” are likely to be in their graves by then!☠️⚰️🤮
President Biden often correctly says that our democracy is in peril! Yet, one of the main places where it is most imperiled and disrespected is in HIS OWN Immigration Courts at EOIR. Why hasn’t the President led the “defense of democracy” by cleaning up the mess in his own house? Inexplicable!
“We innovate a lot in this department,” DHS Secretary Alejandro Mayorkas told reporters at a news conference this month. “This is a very novel approach to building lawful and safe pathways premised on a foundational point — which has historically been proven true — that people will wait if we deliver for them a lawful and safe pathway to come here.”
“Tell it like it is” quote of the day:
Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services to immigrants, said the Biden administration is “prioritizing speed over justice and fairness.”
“If the administration moves in this direction, they’re doing so with very clear knowledge that they will be returning people to dangerous situations,” she said. “Migrants who are returned to Mexico are extremely and particularly vulnerable to rape, assault, kidnappings and other violence. This has been so well-documented. The administration knows that this is a reality.”
“The Biden Administration lies about the cruel, disasterous, illegal, and deadly effects of ‘farming out’ asylum policies to Mexico. Unlike Mayorkas, Heidi Altman of NIJC has the courage and expertise to ‘speak truth to power’ — obviously something no longer valued in the Democrats’ failing, cowardly approach to human rights and racial justice.” Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
“Lowlights” of Biden’s proposal:
Mass deportation of non-Mexican asylum seekers to Mexico in circumvention of “safe third country” provisions of law;
Illegal return of asylum seekers to documented dangerous, degrading, and life-threatening conditions in Mexico;
“Many asylum seekers placed into MPP experienced extreme danger in Mexico. Individuals sent to the Laredo or Brownsville courts had to reside or pass through the Mexican state of Tamaulipas, which the State Department classifies as the same level of danger as Syria, Afghanistan, and Iraq. Many asylum seekers and families were kidnapped and assaulted after having been sent back to Mexico, sometimes within hours of crossing back over the border.”
“According to Human Rights First, through February 2021 there were at least 1,544 publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP. Multiple people, including at least one child, died after being sent back to Mexico under MPP and attempting to cross the border again.”
“The U.S. government did not provide support to individuals sent back to Mexico, leaving people to fend for themselves. Many were homeless during their time in Mexico. In some locations on the border, the Mexican government created shelters that could house some—but not all—of the people sent back. Private shelters also provided housing for some individuals sent back under MPP. In Matamoros, a tent camp sprang up in 2019 where thousands of asylum seekers eventually resided along the Rio Grande in squalid conditions with no running water or electricity.”https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols
Feeding women and other vulnerable individuals to cartels, gangs, criminals, and corrupt officials carrying out widespread, endemic, gender-based violence in Mexico;
“In general, women who are trying to either find work or [who are]…commuting to and from their jobs, [are] exposed…to the risk of being followed. It is already known that in border cities, or at least in Ciudad Juarez, people know how to identify migrants and go after them for extortion, often to kidnap them in order to get what little money they have. They are…very clear targets for certain criminal groups in Mexico, many of which are dedicated exclusively to extorting migrants. And well, women are a more vulnerable target…And if we add to that the issue of sexual violence? I think this is a very big challenge for women: how to survive during the time it takes for the resolution of their [asylum] processes.” https://www.tahirih.org/news/u-s-asylum-deterrence-policies-increase-risk-of-gender-based-violence/
Creating a “presumption of denial,” applied largely to asylum seekers of color, in a mal-functioning asylum system already suffering from anti-asylum bias and racial bias;
Increased use of criminal prosecutions (known to be a waste of resources and an ineffective deterrent) against those merely seeking to exercise their legal rights to seek protection under domestic and international law (will “family separation” be next for Biden/Harris?);
Mass use of discriminatory, arbitrary “parole,” untethered to the legal “refugee” definition, driven by extralegal considerations such as availability of U.S. sponsor and refusal of native country to accept U.S. deportees, as a substitute for orderly overseas refugee programs and circumventing legally required advance “consultation” with Congress;
Feeding “parolees” intro hopelessly backlogged, biased, dysfunctional asylum adjudication systems at USCIS and EOIR without taking steps to address the glaring problems plaguing asylum adjudication in these agencies;
Leaving other “parolees” to “wander America in limbo” without any clear path to residency and at the complete mercy of the political whims of the Administration in charge;
Providing no opportunities for “in country” or “beyond the border” parole for those fleeing the Northern Triangle, one of the largest sources of recent flows of refugees and forced migrants;
Basically, replacing the current legal, statutory framework for refugee and asylum adjudication, derived from international conventions and years of experience handling refugee and humanitarian crises, with an “ad hoc,” non-statutory, array of politicized restrictionist gimmicks adapted from Trump/Miller and arbitrary, non-statutory benefits handed out to certain groups — but not others — in an attempt to fend off criticism for jettisoning the Refugee Act of 1980 and related laws.
Progressives and advocates, this is a Democratic Administration basically, even gleefully and proudly, stomping on human rights and the rule of law. They call it “innovation.” I call it degradation of humanity and annihilation of the Refugee Act of 1980.
I’m not sure I have any great alternatives, given the racist/xenophobic/nativist policies of the GOP toward refugees and other immigrants. But, I think that progressives and others who believe in human rights, fair treatment of refugees, immigrants’ rights, and racial justice, long mainstays of the Dems, are going to have to reevaluate their support of a Democratic Party that will no longer stand up for these fundamental values and that takes advocates and progressives for granted.
Way above my pay grade, for sure! But, I do know that democracy, humanity, moral courage, and intellectual honesty are failing here, and that the Democratic Party under Biden and Harris is a big part of that betrayal and failure!
“There’s a whole lotta wide open spaces (and natural beauty) out in Montana as viewed by EOIR “flyover bureaucrats” and their DOJ “handlers.” But, if you look closely, there are real life people living there who deserve decent public service!” PHOTO: Bird Tail Divide, By “Montanabw” — Creative Commons Attribution-Share Alike 4.0 International license.
CARRIE LA SEUR Carrie La Seur is a Billings novelist and attorney, descended from 1860s Montana settlers and a long line of one room schoolhouse educators. She works pro bono with asylum seekers. She can be found on Twitter @claseur
Without any immigration courts, Montana is tough for immigrants looking to build new life
The drive from Billings to Las Vegas is nearly a thousand miles. That’s 14 to 15 hours of windshield time, winding through some of the roughest, most isolated country in the continental U.S.
Imagine that U.S. forces recently evacuated you from Afghanistan, where the advancing Taliban would have killed you as a member of the Afghan military who fought them alongside Americans. You retreated under orders, unable to reach your wife and children, left behind in hiding in Kabul. Now, alone in Montana, struggling to improve your English, you must make the journey to Las Vegas in winter for your first immigration hearing.
You’ve come through war, exile from the only home you’ve ever known, separation from your family, and imprisonment in the first country you arrived in, but the U.S. Customs and Immigration Service still has a few curveballs for you.
You’ve had only a few weeks’ notice of your hearing, barely time to figure out how to make the trip. You’ve managed to borrow a car, but the owner has to work and can’t come with you. Flights are wildly expensive and you’ve survived first on savings and charity, now on a temporary work permit, so the road is the best option, but the drive is risky.
You’re lucky enough to have a pro bono lawyer appearing for you by video, but you’ve never met her in person. For most people in your situation, there is no lawyer. Although your life and those of your family are on the line, you have no right to representation.
This is the situation for dozens, possibly hundreds, of new Montana residents from Afghanistan, Ukraine, Venezuela, and other nations in crisis, including family members of U.S. citizens. The U.S. allows them to enter and remain in this country because they have credible fears of persecution in their home country and therefore a right under U.S. and international law to seek asylum. Montana nonprofits and religious organizations are scrambling to respond.
Since the U.S. pullout from Afghanistan in 2021, more than 76,000 Afghan nationals have arrived in the U.S., the largest wave of wartime evacuees since the fall of Saigon during the Vietnam War. The New York Times recently published a map of the distribution of Afghan refugees, with a few pinpoints in Montana, compared to thousands of arrivals in San Diego, Houston, and D.C. Many more are waiting for permission to come. In most cases, their lives are in danger from the Taliban.
Until 2016, a Montana resident in immigration proceedings could go to Helena, where a traveling immigration court staff heard cases several days a month. Budget cuts eliminated the court toward the end of the Obama administration. There was pressure to shift resources to the southern border, so staff relocated from more northern locations.
“Detailing” judges, as it’s called when judges move to different locations to hear cases, is expensive (travel, hotel, office space). According to the agency, immigration judges handle about 700 cases a year – the backlog is approaching 2 million – so Montana’s relatively light caseload makes the Helena court low on the priority list.
Now, Salt Lake City, Las Vegas, and Denver are common immigration court assignments for Montana residents. Personal appearances are usually mandatory. Travel is a costly burden for displaced people struggling to adapt to a new country. The distance is also a burden for lawyers, who often can’t spare the time to travel for brief hearings that are frequently rescheduled at the last minute. There can be jurisdictional problems, too. Montana is in the Ninth Circuit, a huge appellate region that includes all the states on the west coast, Nevada, and Idaho.
In the 9th Circuit, judges must give greater weight to testimony about what happened in other countries, and case law makes it more difficult to find that an immigration witness isn’t credible. That’s fine if a Montana resident goes to a hearing in Las Vegas, also in the 9th Circuit, but Salt Lake City and Denver are in the 10th Circuit. If a judge rules against a Montana resident using 10th Circuit law, when 9th Circuit law would have given a more favorable result, that’s just bad luck.
Many Montana lawyers may not be familiar with 10th Circuit law, making it that much more difficult for Montana residents to find a qualified attorney.
Montana lawyers with expanding immigration practices are beginning to ask, why Helena’s immigration court couldn’t be restored? Kari Hong, a Missoula attorney with the Florence Project, an immigration rights organization, points out that many clients have trouble finding qualified lawyers where multiple jurisdictions are involved, and differences in appellate law give some Montana residents worse judicial outcomes based on a random court assignment.
As a practitioner, Hong notes, it’s harder to show documents in a remote hearing, or be sure that everyone is looking at the same document. Interpretation is more difficult. Not being in the courtroom with a client makes it hard to establish rapport, and make sure that the judge is hearing everything. Attorneys are legitimately concerned, says Hong, about providing effective counsel in remote hearings that could be located anywhere in the country.
The U.S. Customs and Immigration Service has office space in Helena, where it handles immigration biometrics checks. so the cost of bringing in an itinerant immigration judge to handle Montana residents’ cases might be only a staffing and travel expense. But the appointment of more immigration judges and their assignments have become political issues wrestled over in Washington, D.C.
Paul Wickham Schmidt, a Wisconsin native, served as a career immigration lawyer and judge, chaired the Board of Immigration Appeals in the 1990s, and is now a law professor at Georgetown and formerly at George Mason University. He writes about dysfunction in the U.S. immigration system on his blog, Immigration Courtside. In an interview, he’s outspoken about how immigration courts have become a disgrace to the fundamental American value of justice for all.
“Today’s DOJ has allowed immigration courts to become weaponized as a tool of immigration enforcement,” says Schmidt. “For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial immigration judges as ‘in partnership’ with DHS enforcement. Attorney General (Merrick) Garland has done little to dispel this notion.”
Schmidt talks about the “Dred Scottification” of refugees, referring to the US Supreme Court’s 1857 decision in Dred Scott v. Sandford, holding that all people of African descent were not U.S. citizens and therefore could not sue for their rights in U.S. federal court.
The current U.S. immigration system, k says, treats refugees as sub-human, unworthy of rights long enshrined in U.S. and international law. It uses the court system to send political messages (for example, “Don’t come”) to refugees, turning the courts into political weapons.
Americans, says Schmidt, should be disgusted.
Part of the problem in maintaining the integrity of immigration courts is that immigration judges are appointed by the Attorney General and serve at his or her pleasure. They don’t have the independence of federal judges confirmed by the U.S. Senate under Article III of the Constitution, or the protections of Article I judges, like bankruptcy judges. They don’t control their dockets. Scheduling is done by non-judicial administrators, who book judges and lawyers so tightly that there’s no way, according to Schmidt, to do their jobs competently.
Immigration courts also lack necessary administrative support.
Hiring court administrators is done through a slow, difficult hiring process, and administrators struggle with inadequate space and tech support, which handicaps the whole immigration court system. In one example of the slow pace of progress in the immigration system, cases handled by the Executive Office for Immigration Review finally went electronic in 2022 – a quarter century after the U.S. federal courts transitioned to electronic filing, using a different system.
Many immigration judges are shouting for reform. Judge Dana Leigh Marks of the San Francisco Immigration Court, a past President of the National Association of Immigration Judges, says: “Immigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”
Highly qualified people continue to leave the agency rather than uphold a farce.
“There are many of us who just feel we can’t be part of a system that’s just so fundamentally unfair,” said Ilyce Shugall, who quit her job as an immigration judge in San Francisco in 2019 and now directs the Immigrant Legal Defense Program at the Justice & Diversity Center of the Bar Association of San Francisco. “I took an oath to uphold the Constitution.”
Schmidt writes on his blog about the U.S.’s “disgracefully dysfunctional immigration courts,” which offer no right to legal representation. Having an attorney in immigration proceedings makes a huge difference, statistically speaking. For recently arrived women with children fleeing violence, the success rate of represented applicants is 14 times higher.
To fix the major problems with the system, Schmidt has a short list of big changes he’d like to see:
Create an Article I immigration court system. Article I courts are legislative courts created by Congress, without full judicial power to decide Constitutional questions, but with enough independence not to be controlled by political appointees.
The Board of Immigration Appeals needs to become a true appellate court.
Reverse reforms put in place by Attorneys General William Barr and John Ashcroft, intended to reduce the capacity of the immigration courts to do the work assigned to them by Congress.
Remove judges who deny 100% of asylum applications.
At the management level of the agency, hire professional court managers focused on providing due process and making the system work efficiently.
Improve automation, e-filing, and information-technology capability.
Montana residents are a tiny constituency of perhaps hundreds in the vast U.S. immigration system, processing millions of people, but they demonstrate what’s broken. Somewhere under the Big Sky is an Afghan evacuee who saved military aircraft from falling into the hands of the Taliban during the U.S. retreat from Kabul. He’s desperately worried about his wife and children trapped in Kabul, where the Taliban have identified them as the family of a soldier who supported the Americans.
They exist in hiding, while the Taliban-controlled passport agency charges thousands of dollars to produce a legal travel document. As his asylum application winds its way through the system, he texts his wife every day.
“All I can think about is making them safe,” he says.
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Carrie La Seur is a Billings novelist and attorney, descended from 1860s Montana settlers and a long line of one room schoolhouse educators. She works pro bono with asylum seekers. She can be found on Twitter @claseur
“All I can think of is making them safe.” Given the facts in Carrie’s article, this Afghan case should have been a “no-brainer” asylum grant at the USCIS Asylum Office. Having made it to EOIR, it would be a candidate for a 30 minute “stipulated grant” in a properly functioning and professionally led Immigration Court system.
That cases like this, clear asylum grants that shouldn’t even reach EOIR, linger in the system, is symptomatic of the endemic dysfunction in America’s Immigration Courts. It also illustrates the failure of the Biden Administration and America’s “top lawyer,” A. G. Merrick Garland, to aggressively stand up for the legal rights of immigrants and to apply common sense, expertise, and practical scholarship to our dysfunctional immigration and human rights bureaucracy.
But, all EOIR can think about is how human lives — and justice —in Montana and elsewhere really aren’t very important in the overall bureaucratic scheme. And, it’s not not like A.G. Merrick Garland and his minions, safely ensconced in their offices at 10th & Penn in downtown DC, are thinking about the human carnage left in EOIR’s dystopian wake, in Montana and elsewhere!
We all “get” that Montana’s problems are “small potatoes” in the context of EOIR’s ever-expanding 2.1 million case backlog! Yet, EOIR could serve Montana in a way that preserves due process, promotes consistency, encourages representation, and delivers “good public service” without materially affecting their backlogs elsewhere or “breaking the bank.”
EOIR’s approach to the “real problems” of the “small-population” State of Montana and its very human residents is sadly reflective of Washington’s overall approach to immigration and human rights: We won’t solve the “little problems” that could improve individual lives because we can’t solve the “big problem” of so-called “comprehensive immigration reform.”
I don’t buy it! There are plenty of ways that DOJ/EOIR could successfully address many of the “little problems” that would improve administration and public service in places like Helena. DOJ/EOIR does not have a “stellar record” for competent management or fiscal responsibility, to say the least.
For example, the DOJ Office of Inspector General recently found that EOIR had for years mismanaged multi-million dollar technology contracts.https://wp.me/p8eeJm-87P.
They have also wasted money on so-called “Immigration Judge Dashboards” so that they could monitor IJ “performance” under much-criticized and now abandoned “production quotas.”
Certainly, with a little administrative ingenuity, EOIR could scrape together the modest amount of resources it would take to conduct periodic hearings in Helena and thereby provide due process to Montanans caught up in EOIR’s dysfunctional system.
Without affecting overall backlogs or big budget increases, EOIR could:
Bring back one or more retired IJ’s as “rehired annuitants” to work part time on the Helena docket; or
Designate one or more IJs at the numerous so-called “EOIR Adjudication Centers” to hear cases in Helena by Televideo; or
Use Helena for piloting an authorized (but, to my knowledge, never implemented) “phased retirement” program for training and mentoring new IJ’s by those seeking to reduce their work hours as they move toward retirement; or
“Slim down,” or better yet eliminate, the unnecessary and duplicative “Office of Policy” created at EOIR HQ under Trump (why would an agency comprised of supposedly independent quasi-judicial officials need a “Bureaucratic Politburo?”) and allocating the resources to case adjudication — supposedly the ”lifeblood of EOIR;” or
Reprogram some of the unnecessary, non-adjudicating, fancy-titled “spear carrier” positions wandering the halls of the bloated, yet inept, EOIR bureaucracy in Falls Church.
Those are just for starters. Like its failed counterpart, USCIS, EOIR needs an independent re-examination of processes, quality control, and accountability —all of which currently are failing the public — in Montana and elsewhere! EOIR also needs new, dynamic, professional, problem-solving judicial administration by experts appointed from OUTSIDE the dysfunctional EOIR bureaucracy and the hapless gang of politicos at “Main Justice.”
The only kind of “equal justice” that seems to be an objective at EOIR today is to make sure that public service is equally bad across America.
Notably, as shown in Carrie’s article, the EOIR debacle is affecting virtually every county and every nook and cranny in America. No American community is too far removed from the DOJ/EOIR “bureaucracy of pain and failure” to avoid the adverse consequences of this monumental, and unnecessary, meltdown at the “retail level” of American Justice; even those humans residing in “EOIR Flyover Country!”
“The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.” PHOTO: Creative Commons 4.0
Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:
Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.
This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?
While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.
Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.
Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!
I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!
Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.
So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit.SeeBah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).
Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!
More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.
Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.
Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.
But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.
And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.
Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expertIJ handling a non-detained docket.
That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”
As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.
But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”
That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing forupcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.
Federal and state lawmakers are renewing efforts to shorten the amount of time asylum seekers must wait before they can work and become self-sufficient.
Local officials in communities such as Portland, a destination for waves of people seeking asylum, have called on federal officials for years to reduce the waiting period for work permits, which is a minimum of six months and often much longer. They argue speeding up the process is a way to address workforce shortages as well as reduce the costs of providing financial assistance to asylum seekers who aren’t allowed to support themselves.
But every effort dating to at least to 2015, when Sen. Angus King of Maine submitted a bill to shorten the wait period to 30 days, has failed to gain traction in Congress because the appeals have been caught up in partisan and regional conflicts over immigration reform and border security.
Republican Sen. Susan Collins and Rep. Chellie Pingree, D-1st District, have proposed similar bills in recent years. And both are doing so again this session, while King, an independent, is signing on as a co-sponsor.
. . . .
Despite national polarization over the issue, calls for allowing asylum seekers to work and become self-sufficient are widely supported in Maine by Republicans, Democrats and independents. The fact that Maine has more jobs available than there are workers to fill them is a key reason for the broad support.
Even former Gov. Paul LePage, who opposed efforts to help asylum seekers during his eight years in office, revised his position during the gubernatorial campaign last fall, saying at a debate in Portland that “if asylum seekers are here, and (President) Joe Biden is not going to enforce federal law on immigration … I want to put them to work.”
Collins started pushing for the reform in 2019 and announced on Friday that she introduced a bill with Sen. Kyrsten Sinema, an Arizona independent and former Democrat, that would reduce the waiting period from six months to 30 days for asylum seekers who have gone through preliminary screening. And Pingree plans to reintroduce her bill in the House in the coming weeks.
. . . .
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Read the full article at the link.
Gosh, when even former GOP right-wing Gov. Paul LePage is on board, seems like it should be a “no-brainer” for Congress. But, that isn’t the way things work (or don’t) on the Hill these days.
As to requesting a “waiver” of the current 180 day statutory “lock out” provision, there currently doesn’t appear to be any process for that. The statute does state that:“An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General.”
Therefore, it appears that the Biden Administration could establish a waiver process by regulation if it chose to. I’m not aware of any plans by the Administration to propose such a regulation.
The Administration has addressed immediate work authorization in their recently announced parole program for certain nationals of Venezuela, Nicaragua, Haiti, and Cuba. Individuals approved for this program abroad will be “paroled” into the U.S. for two years with work authorization.
The relief for states like Maine under this parole program is limited, because 1) only nationals of the four specified countries can apply; 2) the program applies prospectively only; 3) it’s uncertain what will happen to parolees after two years (one can imagine that any future GOP Administration would terminate the program, given that GOP politicos are now suing to halt it); and 4) the is no clear path to a green card for these paroled individuals.
To date, the Administration has not “leveraged” other potential legal mechanisms to expedite employment authorization.
One option would be to greatly expand use of the new regulatory authority for USCIS Asylum Officers to grant asylum status to applicants arriving at the border. This would result in immediate admission in an orderly, work-authorized asylum legal status and avoid the current 2.1 million Immigration Court backlog. It also would trigger a statutory process for asylees to apply for green cards after being physically present in the U.S. for one year. Additionally, granting asylum expeditiously at the AO would be available to all asylum applicants, not just those from the four specified nations.
Another option, that could be used in conjunction with the first one, would be to ramp up much more robust and inclusive refugee programs outside the U.S. This could be in the countries in crisis or in third countries. Like asylees, refugees enter the U.S. in a legal status that authorizes them to work immediately. Like asylees, they have access to a statutory provision for obtaining a green card after being physically present in the U.S. for one year. Refugee status is potentially available to refugees from any country where the President finds a “special humanitarian concern” following “consultation” with Congress.
Unfortunately, in my view, the Biden Administration has shown little interest in, nor aptitude for, maximizing the mechanisms available to legally admit refugees, from abroad or as asylum seekers. As pointed out above, doing so also would address the issues in Maine and other states who have welcomed refugees and asylum seekers.
Instead, the Administration has relied on a mishmash of:
Trump-era, nativist, deterrence policies, many with questionable legal basis;
A series of ever-changing, ad hoc, subjective, discretionary “exceptions” to those policies administered without any transparency or accountability;
An ad hoc, nationality specific, parole program divorced from the statutory “refugee” definition, having a much more tenuous legal basis than using the established refugee and asylum admission provisions now in the INA, and certainly leaving the future fate of those “paroled” thereunder “up in the air” and subject to maximum political gamesmanship.
The sum total is to leave too many refugees and asylees, and the individuals and communities in the U.S. trying to help them, “dangling in the air” without the necessary support and humanitarian leadership from the Administration.
“DOJ/EOIR litigation team arriving at U.S. Courthouse.” PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Round Table “Fighting Knightess” and NJ Bar honoree Hon. Sue Roy reports from the Garden State:
Hi Everyone and Happy Friday!
Regarding the lawsuit AILA-NJ v. EOIR—WE WON!!! We received an oral ruling from Judge Vazquez today—EOIR lost; it violated the terms of our stipulated agreement by failing to grant (or even rule on) Webex motions. We are preparing another proposed order to submit to the Judge early next week. He stated that if EOIR fails to comply moving forward, he will hold them in contempt.
Sue
PS Please feel free to share, publicize, etc.
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Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Those seeking more information on this case should contact Judge Roy directly.
The caption “AILA-NJ v. EOIR”basically “says it all” about what it’s like to try to practice before Merrick Garland’s (and Biden’s) dystopian Immigration Courts these days. Such unnecessary trauma; such a waste of resources; such an abuse of public trust! All from a Dem Administration that back in 2020 ran on a platform of returning competency, professionalism, and public service to Government! Most infuriating and disappointing!🤬
Heard on “E-Street:”
“EOIR’s handling of this and the DOJ position are honestly ridiculous!”
“To quote Judy Collins & Stephen Sondheim:
‘Send in the clowns Don’t bother, they’re here.’”
“Great work Sue! But, the problem really is treating a court system like an administrative agency instead of a court system. Problem is baked into the institution.”
“Amazing! Great work, and thanks on behalf of all who will benefit from this.”
“And, maybe it will help with the Article 1 Court position.”
“Great work!”
“Thanks for outing Garland and his scofflaw EOIR again. Seems Garland should be held in contempt if EOIR ignores court order again.”
“All parties acknowledge the case will be moot when the pandemic declaration ends–which Biden said earlier this week will be sometime in May.”
“Thanks to our attorneys, to DHS attorneys, especially Ginnine Fried, and to everyone here who helped!”
“If there’s one thing that can bring ICE and the private/pro bono bar together, it’s EOIR’s incompetence and intransigence. My understanding is that their OWN WITNESS tanked EOIR’s case! Is ANYBODY “supervising” EOIR litigation at DOJ these days?”
“What if EOIR provided public service and acted rationally without Federal Court orders? Isn’t that something that Dems on the Hill should be ‘all over Garland’ to fix? Now!”
🇺🇸 Thanks to Sue and all involved, and Due Process Forever!
Julia Toepfer National Immigrant Justice Center (“NIJC”)
Humane border policies are possible. Here are five solutions.
The United States continues to struggle to create and implement humane border policies that respect domestic and international law and the dignity of people seeking protection. NIJC’s policy experts convened with other experts to suggest five solutions for a humane border policy. Read more about the solutions and see our graphics series.
AUTHOR NIJC Policy Team
The U.S. government and governments around the world are grappling with an increase in the number of people forcibly displaced from their homes by political and social oppression. Despite campaign commitments to restore humanity to immigration policy, the Biden administration has largely continued Trump-era policies at the U.S.-Mexico border. These policies blatantly undermine domestic and international asylum law; result in countless deaths; and create rather than mitigate chaos as people blocked from protection have little choice but to resort to multiple and more dangerous border crossing attempts.
What should the Biden administration be doing to address the humanitarian need at the border? There are other ways to address the situation at the border, leading with empathy and courage in compliance with the Refugee Act of 1980.
The administration can and should: 1) develop and support robust communication and planning between federal, state and local governments, and civil society, so that those arriving migrants in need of additional support can be matched with a destination with capacity to provide services; 2) fully fund and support civil society, including social and legal service providers; 3) create non-custodial, humanitarian reception centers at the border, instead of jailing migrants and asylum seekers; and 4) overhaul the federal immigration budget by moving funds away from detention and enforcement and toward asylum processing and humanitarian needs.
While taking these steps the administration must 5) abide by its obligation to ensure asylum access to those arriving at the United States’ borders and ports. The Refugee Convention, which Congress incorporated into U.S. law, was borne out of the horrors of World War II and the Nazi Genocide. It reminds us of a history we must not repeat, when the United States was among those countries that turned European Jewish refugees away, back to their deaths. Policies developed during the Trump administration, including the Title 42 mass expulsions policy and asylum bans that deny protection on the basis of a person’s manner of entry, stand in blatant violation of this obligation.
Processing large – even unprecedented – numbers of asylum seekers is possible. In the aftermath of the Russian invasion of Ukraine, there was an outpouring of support and political will to welcome Ukrainians forced to flee. In only a five-month period following the invasion, the United States processed and received more than 100,000 Ukrainians. The Department of Homeland Security (DHS) has tremendous authority and resources at its fingertips; with political will and a reprioritization of funding, the United States absolutely has the means to become a leader in the response to the global refugee crisis and to provide dignity and respect to those arriving at the border in search of safe haven.
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Get more details at the above link.
This is exactly the kind of practical, progressive thinking and planning that the Biden Administration should have been ready to “run with” upon taking office. They also needed a different leadership team with the skills, expertise, and guts to put policies like this in place and stick with them.
Instead they have been cowed by nativists and wobbly Dem “faux centerists” into an ill-defined and ineptly led program of “Miller Lite” deterrence lamely leavened with arbitrary stabs at amelioration untethered to a statutory framework! They also needed a much better legal team led by skilled, dedicated litigators with proven ability to defend humanitarian legal policies against predictable scurrilous, but determined, well-financed litigation by White Nationalist advocates designed to block progress and insure that equal justice for all would remain a slogan rather than a reality!
“Little Shop of Horrors:” Another human life devoured by the “due process eating plant” hidden away in the bowels of the BIA! PHOTO: Little Shop of Horrors at Grafton High School 14.jpg, Creative Commons License
Faiza Sayed Assistant Professor of Law and Director of the Safe Harbor Project Brooklyn Law School PHOTO: Brooklyn Law Website
ABSTRACT—Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision- making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.
The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and
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political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.
AUTHOR—Assistant Professor of Law, Brooklyn Law School. I am thankful to Matthew Boaz, Richard Boswell, Jason Cade, Stacy Caplow, Pooja Dadhania, Elizabeth Isaacs, Kit Johnson, Anil Kalhan, Elizabeth Keyes, Catherine Kim, Shirley Lin, Medha Makhlouf, Hiroshi Motomura, Prianka Nair, Vijay Raghavan, Philip Schrag, Andrew Schoenholtz, Sarah Sherman- Stokes, Maria Termini, Irene Ten-Cate, and S. Lisa Washington for thoughtful conversations and comments on drafts. This Article benefitted from feedback at the New Voices in Immigration Law Panel at the 2022 AALS Annual Meeting, the 2021 Clinical Law Review Writers’ Workshop at NYU, and the junior faculty workshop at Brooklyn Law School. I am grateful to Benjamin Winograd and Bryan Johnson for helpful conversations about the Board, unpublished decisions, and FOIA, and to David A. Schnitzer and Visuvanathan Rudrakumaran for discussions about the Andrews and Uddin cases. Thank you to Emily Ingraham for outstanding research assistance and to the editors of the Northwestern University Law Review for excellent editorial assistance. Financial support for this Article was provided by the Brooklyn Law School Dean’s Summer Research Stipend Program.
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Professor Sayed has written an “instant classic” that should be a staple for future historians assessing the legal career and impact of Merrick Garland and how the Democratic Party has failed humanity time again on immigrant justice when the stakes were high and the solutions achievable!
Here’s my “favorite” part:
In 1999, Attorney General Janet Reno attempted to deal with the BIA’s rapidly increasing backlog of appeals by implementing “streamlining rules” that made several changes to the way the Board operated.41 Most importantly, certain single permanent Board members were now permitted to affirm an IJ’s decision on their own and without issuing an opinion.42 The Chairman of the BIA was authorized both to designate certain Board members with the authority to grant such affirmances and to designate certain categories of cases as appropriate for such affirmances.43 Finally, Attorney General Reno increased the size of the Board to twenty-three members.44 Evaluations of the reforms found that they “appear to have been successful in reducing much of the BIA’s backlog” and “there was no indication of ‘an adverse effect on non-citizens.’”45
Despite the documented success of Attorney General Reno’s reforms, in 2002, Attorney General John Ashcroft announced controversial plans to further streamline the BIA’s decision-making.46 These rules “fundamentally changed the nature of the BIA’s review function and radically changed the composition of the Board.”47 To support the reforms, Ashcroft cited not only the backlog but also “heightened national security concerns stemming from September 11.”48 The reforms included making single-member decisions the norm for the overwhelming majority of cases and three-member panel decisions rare, making summary affirmances common, and reducing the size of the Board from twenty-three members to eleven.49 A subsequent study found that Attorney General Ashcroft removed those Board members with the highest percentages of rulings in favor of noncitizens.50 As a result of the reforms, outcomes at the BIA became significantly less favorable to noncitizens,51 and the federal circuit courts received an unprecedented surge of immigration appeals.52
In the wake of harsh criticism of immigration adjudications by federal circuit courts, Attorney General Alberto Gonzales directed the DOJ to conduct a comprehensive review of the immigration courts and the Board in 2006. Based on this review, Attorney General Gonzalez announced additional reforms “to improve the performance and quality of work” of IJs and Board members.53 The most significant change was the introduction of performance evaluations, which include an assessment of whether the Board member adjudicates appeals within a certain time frame after assignment.54 Scholars have explained that “the performance evaluations give an incentive to affirm rather than reverse IJs by emphasizing productivity, and because immigrants file the overwhelming number of appeals with the BIA . . . the incentive to affirm means outcomes that favor the government.”55
The Trump Administration once again transformed Board membership. Board members whose appointments predated the Trump Administration were reassigned after refusing buyout offers,56 and the Administration expanded the Board to add new members.57 Most of the new Board members appointed under the Trump Administration had previously served as IJs,
where they had some of the highest asylum denial rates in the country.58
Garland has failed to replace the asylum denying judges who were “packed” onto the BIA during the Trump era with qualified real judges who are experts in asylum law, unswervingly committed to due process, and able to set proper precedents and enforce best judicial practices. That’s a key reason for the “prima facie arbitrary and capricious inconsistencies’ in EOIR asylum grant rates — 0% to 100% — a rather large range!
The latter read like a compendium of legally and factually questionable “how to deny asylum and get away with it” instructions. Absent is any hint of the properly fair and generous treatment of asylum seekers required by the Supremes in Cardoza-Fonseca and once echoed in BIA precedents like Mogharrabi, Kasinga, Chen, Toboso-Alfonso, A-R-C-G-, and O-Z- & I-Z- .
Some well-reasoned grants that could be widely applied to recurring situations are also buried on the “shadow docket.” At the same time, as cogently described by Professor Sayed, cases with almost identical facts that resulted in denial are also hidden there. This system is simply NOT functioning in a fair, reasonable, and legally sound manner. Not even close! Yet, Garland has not brought in competent expert judicial administrators and managers at EOIR who recognize the problems and would make solving them, rather than aggravating them, “priority one!” Why?
Contrast that with the enlightened movement among American Law Schools to promote immigration “practical scholars” and clinicians to administrative positions in recognition of their inspirational leadership and superior “real life” problem-solving skills! It’s as if Garland and the rest of Biden’s inept immigration bureaucracy operate in a “parallel universe” where immigration, human rights, and racial justice don’t exist!
Not surprisingly, some of the BIA’s best and most useful guidance on asylum came before the “Ashcroft purge.” But, they still remain “good law” that Immigration Judges can use, despite the “any reason to deny” culture reflected by today’s “Trump holdover” BIA. Curiously, this negative asylum “culture” is tolerated and enabled by Garland, even though it directly contradicts promises made by Biden and other Dem politicos during the 2020 campaign! Why?
The Obama Administration also did not act to undo the damaging changes made during the Bush Administration. Thus, the ambivalent attitude of Dem Administrations toward justice for immigrants and building a fair, functional BIA has much to do with the current dysfunctional, unfair, and horribly administered mess at EOIR!
I was one of those BIA judges removed during the “Ashcroft purge,” essentially for “doing my job,” ruling fairly, and upholding the rule of law.Notably, many of the views of the “purged” judges were eventually reflected in Court of Appeals, and even a Supreme Court, reversals of the BIA.
Once “exiled” to the Arlington Immigration Court, except where bound by contrary BIA precedent, I ruled the same way that I had in many of the cases coming before me at the BIA. Guess what? I was seldom reversed by my former colleagues! I used to quip that “I finally got the ‘deference’ that I never got as Chair or a BIA judge.”
ICE appealed relatively few asylum and/or withholding grants; surprisingly often, their “closing summary” actually echoed what likely would have been in my final oral opinion, had it been been necessary to issue one. A number of BIA reversals by the Fourth Circuit Court of Appeals during my Arlington tenure made points that I, and/or my ”purged colleagues,” had raised in vain during my time on the BIA. A few even involved poorly-reasoned attempts by the BIA to reverse some of my decisions granting relief!
And, oh yes, there were the gross inconsistencies in unpublished “panel” decisions. Once, an Arlington colleague and I came down with opposite conclusions on whether a particular Virginia crime, on which there was then no BIA precedent, involved “moral turpitude.” Within a week of each other, we both received an answer from different BIA panels. We BOTH were reversed! As we joked at lunch, the only consistent rationale from the BIA was that “the IJ was wrong!”
The current BIA is a continuing blot on American justice, The same information and resources available to Professor Sayed in writing this article were available to Garland. How come she “gets” it and he (and his lieutenants) don’t? Why didn’t Garland hire Professor Sayed and a team of other experts like her to straighten out and rejuvenate EOIR?
And, let’s not forget that the increased public access to the “shadow docket,” even if still inadequate, is NOT the result of EOIR wanting to provide more transparency or any enlightened reforms stemming from Garland. No, it required aggressive litigation by the New York Legal Assistance Group (“NYLAG”) against EOIR to force even these improvements!
Does the public REALLY have to sue to get basic services and information that a properly functioning USG agency should already be providing? Merrick Garland seems to think so! How is this the “good government,” promised but not delivered by Biden in the critical areas of immigration, human rights, and racial justice?
Vulnerable asylum seekers and others whose lives depend on a just, professional, expert EOIR deserve better! Much, much better! The inexplicable and disastrous failure and refusal of Garland and the Biden Administration to deliver on the promise of due process and equal justice at EOIR will likely haunt the Democratic Party and our nation well into the future. As my friend Jason “The Asylumist” Dzubow would say, “It didn’t have to be this way!”
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”
These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.
No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.
. . . .
The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past.
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Read Yael’s complete article at the link.
Many of us had believed that the Biden Administration would get beyond the biases, manipulations of law, and implicit or explicit racism of the past to achieve the orderly, legal, timely admission of refugees, including those from Latin America, from abroad and at the border. Unfortunately and outrageously, they haven’t even tried!
Instead, they have turned human rights and border policies into an unholy, largely incomprehensible and arbitrary, mishmash of many of the worst, most ineffective, and invidiously biased policies of the past.
Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.
As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.
In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.
What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.
The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.
Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.
One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.
Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.
Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.
For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.
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Jason Dzubow The Asylumist
“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡
In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”
The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!
A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?
