"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
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!
“Those of us who care about people on the wrong side of history just have to help case by case, person by person.” – Anne Pilsbury, quoted in Francisco Goldman, “Escape to New York,” The New Yorker, Aug. 9, 2016.
Anne Pilsbury is well; she continues to work at Central American Legal Assistance (“CALA”), the organization she founded almost four decades ago. She was recently awarded the Carol Weiss King Award by the National Immigration Project of the National Lawyers Guild. She remains most generous in sharing her knowledge with the immigration law community in New York.
However, as of January 1, Anne has stepped down from CALA’s helm, passing the Directorship of the organization to the extremely talented Heather Axford.
It thus seems like an appropriate time to honor Anne’s extraordinary career. Her path from Washington, D.C. to Maine “country lawyer” to representing asylum-seekers in Williamsburg, Brooklyn is a fascinating one. It began with Anne’s role as plaintiff’s counsel in Hobson v. Wilson,1 a remarkable case having nothing to do with immigration law.
Hobson involved a top-secret FBI operation of the late-1960s to early-1970s called COINTELPRO, which targeted civil rights groups seeking racial equality, and another set of organizations actively opposing the Vietnam war. COINTELPRO specifically listed the Southern Christian Leadership Conference led by Rev. Martin Luther King, Jr., and the Student Nonviolent Coordinating Committee as primary targets.
In the words of the D.C. Circuit Court of Appeals, COINTELPRO focused on “(1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group’s motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs.”2
From December 1963 until his death in 1968, Martin Luther King, Jr. was the target of an intensive campaign by the Federal Bureau of Investigation to “neutralize” him as an effective civil rights leader. In the words of the man in charge of the FBI’s “war” against Dr. King:
No-holds were barred. We have used [similar] techniques against Soviet agents. [The same methods were] brought home against any organization against which we were targeted. We did not differentiate. This is a rough, tough business.3
Beginning her work on the case as a law student in D.C. and continuing with the case while in private practice in D.C., Anne and her co-counsel brought suit against the FBI for systemically violating their clients’ “constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful protest against government policy in the late 1960’s and in the 1970’s in the Washington area.”4 After a 17 day trial, Anne and her colleagues won the suit. In my view, that case alone earned Anne membership in the Due Process Army Hall of Fame.
During the time Hobson was being litigated, Anne moved to Maine, opening her own practice there in the town of Norway (pop. 5,000), traveling back and forth to D.C. for the Hobson trial. So then how did she end up in Brooklyn representing asylum seekers?
Anne explained to me that the government appealed the Hobson decision to the D.C. Circuit (in 1982), after which Anne began traveling to the New York City offices of the Center for Constitutional Rights, who served as her co-counsel on the appeal. And finding some time on her hands during the two-year pendency of that appeal allowed Anne to pursue her interest in helping those fleeing civil war in Central America, which was an issue very much in the news at the time. Although Anne found groups dedicated to the issue itself, she was less successful in locating organizations actually providing representation to immigrants from Central America.
Anne continued that INS was detaining Central Americans at that time in the Brooklyn Navy Yard.5 Anne learned that a local Catholic priest and nun, Father Bryan Karvelis and Sister Peggy Walsh, were visiting those detainees, sometimes paying the bond for their release; they even housed those who had nowhere to stay in the rectory of their Brooklyn church. And Sister Peggy had obtained accredited representative status, allowing her to represent individuals before the government.
In Anne’s words, after litigating against the FBI in Hobson, she naively thought that by comparison, dealing with INS “would be a piece of cake.” Between briefs in Hobson, Anne organized a group of pro bono lawyers to represent Central Americans in applying for asylum under the brand-new 1980 Refugee Act. Anne spent the first year working out of her car, after which Father Bryan offered her space in the Transfiguration Church on Hooper Street, where CALA remains located to this day.
Anne thus began CALA with no funding, paying a secretary herself, and working without a salary for about two years. In a wonderfully ironic twist, CALA’s first funding came from Anne’s attorney fees in Hobson, thus making the FBI CALA’s first major benefactor.
Interestingly, Anne explained that it took a few years before the newly created EOIR began to hear Central American cases in earnest; in the early 1980s, the federal government somehow believed that the problems in the region would be over in a year or two.
Once they did begin hearing Central American cases, the Immigration Judges of that time denied virtually all of their asylum claims, generally doing so by incorrectly classifying the feared harm as “random violence.” In spite of the new asylum law intended to make adjudications fairer and free of political influence, it took years before Anne won her first asylum case.
And yet Anne persevered, building a model program and recruiting and mentoring outstanding lawyers. Anne also challenged EOIR’s misguided decisions and policies in the federal courts.
I want to make it clear that I had not included this next anecdote in my initial draft; it is being added at Anne’s own request. But while fighting to prevent the deportation of factory workers illegally arrested in a workplace raid, a March 1988 conference before U.S. District Court Judge Mark A. Constantino apparently became quite heated, resulting in the judge holding Anne in criminal contempt of court. That order was overturned by the Second Circuit in Matter of Pilsbury.6 The Second Circuit decision contained the following quote directed at Anne by Judge Constantino:
You go practice your shabby law somewheres [sic] else. Don’t you dare practice it in the Eastern District. You no longer will be permitted to practice in any part of this court. You will not be able to practice in this court or the immigration service. This court will see to it.7
Judge Constantino’s words turned out to be about as accurate as the Department of Justice’s belief that the turmoil in Central America would settle down after a few months. Some thirty-five years later, Anne’s impact on asylum case law has been nothing less than remarkable.
In 1994, in the case of Osorio v. INS,8 Anne prevailed in challenging the BIA’s determination that a labor union leader’s fear of persecution in Guatemala was not on account of his political opinion because, as a labor union leader, his point of dispute with the Guatemalan government was economic, not political.
In reversing the BIA’s conclusion, the Second Circuit quoted a statement made by Anne at oral argument, which became one of the most famous lines in asylum law history: that according to the BIA’s view, the Nobel Prize winning Soviet novelist and renowned dissident “Aleksandr Solzhenitsyn would not have been eligible for political asylum because his dispute with the former Soviet Union is properly characterized as a literary, rather than a political, dispute.”9
The court agreed with Anne that “Regardless of whether their dispute might have been characterized as a literary dispute, it might also have been properly characterized as a political dispute.”10 The Osorio decision remains extremely relevant today for its expansive view of what constitutes “political opinion” for asylum purposes, and for recognizing that nexus can be satisfied where the persecution is on account of mixed motives, a concept later codified by Congress.
A month earlier, in the case of Sotelo-Aquije v. Slattery,11 Anne had won a Second Circuit victory for a community leader from Peru who was denied asylum by the BIA in spite of being at risk of violence for speaking out against the Shining Path.
Also in 1994, Anne prevailed before the Ninth Circuit in a case called Campos v. Nail,12 challenging an Immigration Judge’s pattern or practice of denying all motions for change of venue filed by Salvadoran and Guatemalan asylum seekers who had not established a U.S. address prior to their arrest by the INS. In applying this policy without consideration of the individual’s circumstances, the IJ forced respondents who had long settled thousands of miles away to return at no small expense to Arizona for their hearings, or face an in absentia deportation order if unable to do so. The Ninth Circuit agreed with Anne that the policy violated the petitioners’ “statutory and regulatory rights to be assured a reasonable opportunity to attend their deportation hearings and to present evidence on their own behalf,” which “in turn interfered with the plaintiffs’ statutory and regulatory rights to apply for asylum and to obtain representation by counsel at no expense to the government.”13
Anne later won two cases before the Second Circuit creating important protections for asylum seekers in establishing their credibility before Immigration Judges. The precedent decisions in Alvarado-Carillo v. INS,14 and Secaida-Rosales v. INS15 rejected the application of an inappropriate standard relying on speculation or conjecture in rejecting an asylum applicant’s credibility, and required that such determinations be based on facts material to the claim. However, in noting how difficult keeping such gains can be, Anne pointed to the fact that both of these decisions were specifically cited with disapproval by Congress in its subsequent amendments contained in the 2005 REAL ID Act giving Immigration Judge greater leeway to deny asylum based on credibility or corroboration.
In 2006, Anne won an important case recognizing that a different standard applies when determining persecution to children. In Jorge-Tzoc v. Gonzales,16 the Second Circuit held that harm that had not been found to rise to the level of persecution to an adult “could well constitute persecution to a small child totally dependent on his family and community.” The court also cited INS’s asylum guidelines for children recognizing that “The harm a child fears or has suffered, however, may be relatively less than that of an adult and still qualify as persecution.”17
I’ve just mentioned some of the highlights from Anne’s career. From her office inside the Transfiguration Church, the entity Anne founded has assisted thousands of immigrants over the years. And CALA has very much remained focused on the community it serves; as Anne says, that is very much by choice. Among those serving on the organization’s Board of Directors are early clients of CALA, along with former staff.
The community connection is not limited to people. The CALA website lists among its staff, photo and all, “Oscar Gerardi Caceres the Cat,” an actual cat rescued by Anne (as opposed to an attorney with a cat filter), whose responsibilities are listed as “greeting clients, inspecting files, and prowling the office as our security guard.” It must be pointed out that this whimsical entry also carries a far more serious meaning, as the office cat has been named to honor the memory of three fallen leaders of the decades-long violence in Central America: Msgr. Oscar Romero (killed in 1980 in El Salvador), Berta Caceres, an environmental activist and indigenous leader killed in Honduras in 2016, and Bishop Juan Gerardi, killed in Guatemala in 1998 right after releasing the church’s devastating truth commission report on military atrocities.
Over the years, I have left every conversation with Anne having learned something important. Anne has a casual, often direct way of speaking; her words can be simultaneously remarkably simple and deeply profound.
I offer as an example this quote of hers from the same 2016 New Yorker article quoted above:
“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”
In 2006, the block of Marcy Avenue on which the Transfiguration Church sits was named “Msgr. Bryan J. Karvelis Way.” I found online remarks made by City Council Member Diana Reyna during the meeting at which the naming was voted upon. Those remarks included the following:
Brooklyn parishes, like their neighborhoods, have gone through a lot of changes over the years. But one thing remains constant: in a Diocese of Immigrants, they continue to reach out to the latest newcomers, and make a home for them. Transfiguration parish is a superb example of this, and today is a good day to celebrate its history.
In paying tribute to Father Bryan, those remarks are no doubt also a tribute to the work of Anne and CALA over the past 40 years.
Please join me in thanking Anne Pilsbury profoundly, and wishing her all of the best her future pursuits.
Hobson v. Wilson, 556 F. Supp. 1157, 1163 (D.D.C. 1982).
Just to give out-of-town readers a sense of change over Anne’s career, the Brooklyn Navy Yard presently includes the largest movie studio outside of Hollywood; a large number of innovative tech start-ups, and a Wegman’s Supermarket.
866 F.2d 22 (2d Cir. 1989).
Id. at 22.
18 F.3d 1017 (2d Cir. 1994).
Id. at 1028-29.
Id. at 1029.
17 F.3d 33 (2d Cir. 1994).
43 F.3d 1285 (9th Cir. 1994).
Id. at 1291.
251 F.3d 44 (2d Cir. 2001).
331 F.3d 297 (2d Cir. 2003).
435 F.3d 146 (2d Cir. 2006).
Id. at 150.
Copyright 2023 Jeffrey S. Chase. All rights reserved. Republished by permission.
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Congratulations, Anne, on an amazing career — one that continues on in a different role! You are what real leadership and courage are all about!
Building a better America, “case by case, person by person.” I used to say that to folks in court during my days on the bench. It was a “team effort” that included everyone in the courtroom.
Also, thanks to Jeffrey for such a moving and elegantly written portrait of a real American patriot. Giving thanks and recognizing those who have “paved the way” and supported our common values and ideals is an oft-overlooked value in and of itself.
The Biden Administration and Dems generally are notoriously bad in this area. That’s particularly and painfully evident when it comes to those who “held the line” on our Constitution, democracy, and human rights — at a time when many of those leaders and politicos who would benefit were nowhere to be found “in the trenches” of defending and promoting social justice in the face of the Trump/GOP onslaught.
This is my favorite quote from Jeffrey’s profile of Anne:
“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”
Clearly, Biden, Harris, Mayorkas, Garland, a number of Dem politicos, Federal Judges at all levels, and many members of the so-called “mainstream media” neither learned nor heeded the obvious lessons of history. They also ignored the law in their disgraceful “rush to reject rather than protect!”
They keep “blaming the victims” for saving their own lives, ignoring our nation’s failure to live up to our humanitarian commitments, and violating our statutes and Constitutional guarantees of the right to apply for asylum and receive a fair adjudication of claims. It’s as if World War II, Hitler, the Holocaust, and its aftermath have been “written out” of our history — mainly by the GOP but also disturbingly by some Democrats and members of the Biden Administration.
Also, many congratulations to “rising NDPA superstar” Heather Axford on her appointment as the new Director of CALA! Heather has already “creamed” the DOJ in the notable case of Hernandez-Chacon v. Barr. See, e.g., https://wp.me/p8eeJm-52n. That case is basically a compendium of why EOIR is failing, both legally and operationally.
Heather Axford Director Central American Legal Assistance Brooklyn, NY
Yet, disgracefully, rather than “tapping into” the expertise and organizational talents of Heather, Anne, and their NDPA colleagues, Garland and his team are presiding over the “death spiral” of EOIR — endangering our entire U.S. justice system and threatening and degrading human lives!
I’m proud to say that Heather “got her start” practicing before the “Legacy” Arlington Immigration Court with the Law Offices of Alan M. Parra following her graduation from UVA Law! I know that Heather will carry on and build upon Anne’s humanitarian legal legacy and leadership example at CALA!
“Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the decisions of the BIA are VACATED IN PART to the extent they denied Garcia-Aranda’s claim for CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision. … Because of these legal errors, we grant the petition as to Garcia-Aranda’s claim for protection under CAT and vacate the BIA’s decisions regarding CAT protection. See Rafiq v. Gonzales, 468 F.3d 165, 166–67 (2d Cir. 2006) (remanding a CAT claim for proper application of Khouzam). On remand, we direct the agency to consider, in light of all testimony and documentary evidence, whether Garcia-Aranda will more likely than not be tortured by, or at the instigation of, or with the consent or acquiescence of, any public official (or other person) acting under color of law. As more fully described above, that means considering questions such as whether it is more likely than not that the gang will torture Garcia-Aranda, including meeting all the harm requirements for torture under section 1208.18(a), and whether it is more likely than not that local police acting under color of law will themselves participate in those likely gang actions or acquiesce in those likely gang actions. The BIA is also instructed to remand to the IJ for any additional factfinding that is necessary for the BIA to make its determination.”
[NOTE: This PFR was filed in 2018! Hats off to Heather Axford and team!]
Heather Axford Senior Staff Attorney Central American Legal Assistance Brooklyn, NY
“Petition for review of a December 26, 2018 decision of the Board of Immigration Appeals (“BIA”) vacating a July 27, 2017 decision of an Immigration Judge (“IJ”) granting Petitioners’ application for asylum and protection under the Convention Against Torture (“CAT”). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED in part and DENIED in part. Accordingly, the decision of the BIA is VACATED in part, and the case is REMANDED for proceedings consistent with this summary order. … Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture. Scarlett, 957 F.3d at 334 (quoting Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)); see 8 C.F.R. § 1208.18(a)(7). … Here, record evidence raises questions as to the Guatemalan government’s inability to protect Mejia, insofar as it indicates that Mejia sought assistance from Guatemalan police and was told that they could not protect her and she should simply hide in her home. … Insofar as the BIA ruled without the benefit of Scarlett, a remand is warranted before this Court conducts any review. We therefore remand for the sole purpose of allowing the BIA to decide, after reasoned consideration of the record, whether the Guatemalan police’s inability to protect Mejia constituted acquiescence.”
Mikhail Usher, Esq. Senior Partner The Usher Law Group PLLC My & New Jersey PHOTO: Usher Law Group
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Congrats to NDPA superstars Heather and Mike!
Here’s commentary from my Round Table colleague Hon. “Sir Jeffrey” Chase on Heather’s performance on Garcia-Aranda v. Garland:
“Heather is a remarkable litigator who did a remarkable job on this case – it was a tough panel that had basically ruled out asylum from the start; it was most impressive to hear Heather persuade the judges over the course of oral arguments as to the CAT standard (during which one of the judges repeatedly referenced proposed Trump regs that had never taken effect, but were nevertheless listed on the government’s eCFR as if it had).
Best, Jeff“
And, here’s my response:
“Heather is truly an NDPA superstar. And, I’m proud that she got her start appearing at the Arlington Immigration Court!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Forbes: Evidently, USCBP is eliminating the passport entry stamp to streamline the entry process. So now, foreign nationals will only have access to the Form I-94 website as proof of their lawful immigration status.
CBS: The department confirmed the review when asked to respond to accounts from migrants who told “60 Minutes” that U.S. Customs and Border Protection (CBP) officials along the U.S.-Mexico border kept their documents, despite agency policy instructing agents to return migrants’ personal property unless they are fraudulent.
NIJC: More than 130 immigration, criminal justice, and civil rights organizations released a letter today urging the Biden administration to include immigrants in the pardon process.
Law360: More than 100 immigrant rights organizations are urging the Biden administration to fully reinstate visitation at immigration detention facilities, saying in a Thursday letter that visitation is crucial for detainees’ mental health and monitoring human rights violations.
SA Current: The ACLU is condemning the actions of U.S. Customs and Border Protection agents allegedly caught on video firing pepper balls at a group of Venezuelan migrants protesting along the banks of the Rio Grande River near El Paso.
Law360: The Second Circuit on Wednesday declined to review a decision denying an asylum application from a Honduran man and his son who claim they will be killed by gang members if they return home, finding the Board of Immigration Appeals properly reviewed the immigration judge’s decision.
Law360: The Second Circuit on Tuesday backed the U.S. Board of Immigration Appeal’s decision to apply a persecution motive standard used in asylum requests to an Ecuadorian’s withholding of removal request, saying it was reasonable for the agency to do so.
Law360: The Third Circuit on Tuesday knocked down a Guatemalan man’s asylum bid after concluding he failed to back up his fears of violence in the Central American nation based on gang recruitment efforts and his rejection of gangs due to his evangelical Christian faith.
Law360: The Eighth Circuit has upheld a Board of Immigration Appeals ruling that denied a family asylum based on alleged gang threats for lack of evidence that the government of El Salvador could not or would not protect them.
Law360: A Mexican citizen who said police and criminal gangs would torture him for being bisexual and suffering from mental illness if he is deported a third time
Law360: The Ninth Circuit on Thursday backed an order requiring U.S. Citizenship and Immigration Services to adjudicate Special Immigrant Juvenile petitions within 180 days, rejecting the government’s argument that a lower court relied on “stale evidence” and disregarded hardship considerations.
Law360: Republican state attorneys general accused the Biden administration of violating an injunction requiring it to repel migrants from the border under pandemic-era restrictions, saying a sharp drop in Haitian expulsions indicated the administration was selectively lifting the so-called Title 42 border block.
AILA: On 10/31/22, DHS began limited implementation of the DACA final rule. USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to litigation, USCIS will accept but cannot process initial DACA requests.
AILA: EOIR 30-day notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 12/5/22. (87 FR 66326, 11/3/22)
AILA: EOIR 30-day notice-and-comment period for proposed revisions to Form EOIR-31A, which allows an organization to seek accreditation or renewal of accreditation of a non-attorney representative to appear before EOIR and/or DHS. Comments are due by 12/5/22.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Supposedly, the main political issues right now are the economy and inflation. But, the economy and inflation are largely determined by the Fed, markets, global conditions, weather, and a certain amount of pure luck — all things beyond the direct control of the political branches of the USG.
As mentioned by Chuck Todd on last Sunday’s NBC “Meet the Press,” many experts say that the most effective tool that the Administration and Congress have to improve the economy without triggering a recession is to increase legal immigration — sooner rather than later. But, neither party is interested. The GOP sees an anti-immigrant stance as a key to political success. And, the Dems are “actively disinterested” in the issue. So, the opportunity passes.
But, the reality is that, in the long run, no amount of shipping containers, walls, prisons, family separations, deportations, exclusions to death or despair, hate rhetoric, or restrictive legal roadblocks will halt the future flow of human migration, and not incidentally, the internal relocation in America as certain areas become “unlivable.”
According to a government report published in today’s Washington Post:
The U.S. can expect more forced migration and displacement
Already, the authors of Monday’s report said, major storms such as Hurricane Maria, as well as extended droughts that strained lives and livelihoods, have led people to leave their homes in search of more-stable places.
In the hotter world that lies ahead, they write, additional climate impacts — along with other factors such as the housing market, job trends and pandemics — are expected to increasingly influence migration patterns.
“More severe wildfires in California, sea level rise in Florida, and more frequent flooding in Texas are expected to displace millions of people, while climate-driven economic changes abroad continue to increase the rate of emigration to the United States,” the report finds.
Such shifts are inherently complicated and fraught.
Several Indigenous tribes in coastal regions, facing fast-rising seas, have already sought government help to relocate, but have struggled to do so without significant hurdles.
“Forced migrations and displacements disrupt social networks, decrease housing security, and exacerbate grief, anxiety and mental health outcomes,” the authors write.
Neither political party appears serious about addressing these migration realities — already underway. The ideas that we can wall ourselves off, invest in “sending countries,” detain, and deport our way out of migration are not “solutions.”
Failure to act boldly and expansively on legal immigration will create a huge class of exploitable, disenfranchised, extralegal residents and plenty of work for border agents, internal police, righty judges, and jailers. It will also be a huge boon to smugglers and cartels who basically will “own” the American migration franchise. But, in the long run, building a large “underground humanity” won’t be enough to offset the “downside” of lacking a robust, realistic, orderly, legal immigration process.
Eventually, those nation-states that figure out how to harness, welcome, and distribute the power of human migration will rule the future. Right now, America’s leaders, of both parties, seem wedded to a “sure to fail” approach of either opposing or ignoring the realities and unlimited potential of human migration. Too bad — for all of us!
Isabela Dias Staff Writer, Immigration & Social Issues Mother Jones PHOTO: TwitterProfessor Andrew S. Rosenberg Assistant Professor of Political Science U of Florida PHOTO: Website
“Undesirable Immigrants: Why Racism Persists in International Migration”
. . . .
In the book, you dispute the assumption that the right to border control and to exclude foreigners is an inherent feature of sovereign states. Instead, you frame it as a “modern consequence of racism.” Why do you see it that way?
The nation-state is a relatively modern invention on the scale of human history. Today, we have this conventional wisdom floating around that it is the natural right and duty of nation-states as sovereign entities to be able to restrict foreigners and have these really hard borders—and that it’s that ability that makes a state what it is. Actually, if you go back in time and look at the international legal thought that emerged from the 15th through the 19th centuries on what it actually means to be a state, the commonly held assumption that people like the late Justice [Antonin] Scalia and others talk about, is actually an invention of the 19th century. In the 16th and 17th centuries, the great thinkers of international legal jurisprudence or of state theory either thought that states had a right or an obligation to be hospitable to foreigners and to allow them free passage into their territory or, at most, it was up for raucous debate. It was only in the 19th century, when immigrant-receiving countries like the United States began receiving a large influx of racially different outsiders like the Chinese, that this presumption that sovereign states have a right and an obligation that can be tied back to their status as sovereign states to restrict outsiders emerged.
People like Texas Governor Greg Abbott seem to invoke that supposed inherent right when they describe migrants at the border as an “invasion.”
Precisely. These types of “declarations of war” are one of the clearest examples of this ideology seeping into public debate, which leads everyday people to create this idea that migrants are undesirable outsiders who are not fit for, or are undeserving of reaping the benefits of living in the United States or participating in our society.
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Read the complete interview at the link.
The myth of the “undesirable immigrant” — at the heart of the anti-immigrant rabble rousing of Trump, Miller, Bannon, DeSantis, Abbott, Cotton, Hawley, etc. — has deep roots in American racial history.
I’ve said it many times: There will be neither racial justice nor equal justice for all without justice for immigrants (regardless of status). Laws like the Refugee Act of 1980, that very explicitly make arrival status irrelevant to access to a fair legal process, have been intentionally misinterpreted and misapplied by right-wing judges from the Supremes all the way down to the Immigration Courts.
Advocates for civil rights, womens’ rights, LGBTQ+ rights, voting rights, disability rights, and other fundamental rights that have been unlawfully restricted or diminished, usually, but certainly not exclusively, by the right, who continue to ignore the primacy of dealing with the intentional unfair, racially biased treatment of migrants do so at their own peril!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.
TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.
Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.
CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.
CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.
Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.
Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.
Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.
BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.
Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.
LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.
Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”
Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.
Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.
AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.
AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.
USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implementedby the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!
Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.
In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!
But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ millionEOIR backlog, following this remand from the Second Circuit.
Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”
It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).
The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”
“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?
Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”
That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!
There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
See More from Elizabeth Gibson
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Chicago is no longer listed as High. NYC is now listed as High. Check CDC Level for Your Region.
DHS Announces Extension of Temporary Protected Status for Venezuela
DHS: The 18-month extension of TPS for Venezuela will be effective from September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension.
WaPo: Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.
LATimes: The new effort, called the Trusted Adult Relative Program, is being tested at a Border Patrol station in Texas, according to three sources who were not authorized to speak publicly. A Department of Homeland Security official, who spoke on the condition of anonymity, said a few dozen children have been reunified with family members since the program began in May. Agency officials said the program utilizes existing procedures to unify families in an efficient way.
Documented: ICE is moving New Jersey immigrants like Hercules Aleman – who face charges in criminal or family court – to out-of-state immigration detention facilities. But the agency is usually not notifying the group of immigration legal providers funded by the state to represent these detained immigrants.
CNN: The Biden administration asked the Supreme Court on Friday to stay a court order blocking the Department of Homeland Security from implementing immigration enforcement priorities — potentially setting up Justice Ketanji Brown Jackson’s first vote since joining the court.
Politico: The nine-month investigation, which culminated in a 511-page report by the department, found no evidence that agents used horse reins to strike people during an “unprecedented surge in migration” of about 15,000 Haitians near the international bridge. However, agents acted in unprofessional and dangerous ways, including an instance in which an agent “maneuvered his horse unsafely near a child,” investigators wrote.
TRAC: According to the latest data released by Immigration and Customs Enforcement (ICE), the agency held 23,156 immigrants in detention on July 5, 2022. Of these, 17,116 were arrested by Customs and Border Protection (CBP) while 6,040 were arrested by ICE agents. Detention numbers have increased slightly from about 20,000 in early 2022 to now hovering around 24,000, but have not otherwise seen significant growth that would lead to the large numbers of immigrants that were detained prior to the pandemic when the detained population topped out at more than 60,000.
TRAC: The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.
NYT: Extensive details of their years together were also left behind in grainy snapshots, police reports, immigration forms, nonprofit records, court transcripts and old emails. See also The Story of 2 Homeless Men and the Meaning of Friendship.
Law360: The Fifth Circuit refused to reinstate the Biden administration’s attempt to narrow the number of immigrants prioritized for removal, splitting sharply from the Sixth Circuit to find that the effort likely violated federal immigration law.
LexisNexis: [T]he agency failed to consider and explain the impact of evidence that the Salvadoran government’s efforts in the “war on the gangs” had not been successful, such that gang members operate with impunity and security forces commit extrajudicial killings of suspected gang members, both of which pose threats to Giron.
LexisNexis: Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not “void ab initio,” as the district court determined.
Law360: The Ninth Circuit on Friday declined to review a Mexican man’s bid to vacate a deportation order, saying he should have applied for a green card before a law preventing inadmissible individuals from becoming lawful permanent residents took effect.
LexisNexis: The BIA affirmed based upon the IJ’s adverse credibility determination. We grant Barseghyan’s petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record.
LexisNexis: [W]e find that the respondent’s conviction for injury to a child in violation of Texas Penal Code § 22.04(a)(3), does not require “physical force” as defined in 18 U.S.C. § l6(a), and interpreted in Johnson and Stokeling. Thus, the respondent has not been convicted of a crime of violence aggravated felony and is not barred from establishing her eligibility for cancellation of removal.
Law360: Private contractors will no longer be used by U.S. Immigration and Customs Enforcement to make immigration arrests at California jails and prisons, as part of a settlement ICE reached with a detainee represented by the American Civil Liberties Union.
Law360: A 15-year U.S. Department of Homeland Security veteran and an agent who retired from the agency gave secret information to Chinese spies engaged in a harassment and repression campaign against U.S.-based critics of the Chinese government, the U.S. Department of Justice said Thursday.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Federal Courts at all levels continue to lose credibility because of their adherence to a biased far-right agenda that is bad for American democracy.
Let’s see, the BIA manufactures inconsistencies to reach a bogus “adverse credibility” ruling in an asylum case(9th Cir.). They also ignore clear evidence of the complicity/total ineptitude of the Salvadoran Government in a CAT case (2d Cir.).
Folks, these aren’t contract cases, property disputes, commercial squabbles, or minor misdemeanors. They are life or death matters — persecution and/or torture can result in extreme pain, suffering, permanent damage, and death.Serious matters require serious judging by qualified exert judges!
Meanwhile, a righty panel of poorly qualified 5th Circuitjudges drives over established law on Executive prosecutorial discretion to uphold Trump toady Judge Drew Tipton’s clearly wrong-headed attempt to wrest control of ICE enforcement away from the Biden Administration. This gross judicial malpractice is nothing short of a national disgrace that impugns the integrity of the entire Article III Judiciary.
There are still far too many examples of how Garland is contributing to the problem by failing to root out the deadwood (and worse) at EOIR. He should be bringing in new judicial talent committed to due process, scholarship, and best practices.
A “Better EOIR” would not only begin fixing many of the legal and practical problems plaguing our immigration, human rights, and racial justice systems in America, but also could “model” a better American judiciary for the future. It would be a training ground for future, better qualified, Article III judicial appointments: Folks who actually understand and respect delivering justice at the “retail level” and are committed to serving humanity, not kowtowing to party bosses or wooden, perverse, retrograde ideologies.
It is possible for good judges to solve problems rather than creating them or making them infinitely worse. But, you sure wouldn’t say that is happening with today’s out of touch, ivory tower, and poorly performing Federal Judiciary. A better EOIR could keep cases out of the Circuits, thereby eliminating the opportunity for right-wing ideologues to screw up immigration and human rights laws in their White nationalist restrictionist crusade!
This is a judiciary now dominated by far too many right wing judges who got their jobs by demonstrating a commitment to far righty ideology and furthering the GOP’s political agenda rather than by distinguished legal careers that exemplified courage and improving humanity by insuring fair and reasonable applications and interpretations of the law.
Asylum seekers, with their lives on the line, deserve fair, competent, experienced, nationally-recognized experts in asylum and immigration law as judges at all levels of EOIR, starting with the BIA. Instead, Garland appears to be running a refuge for the guy pictured above. Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
CA2 Rejects Matter of B-R-: Zepeda-Lopez v. Garland
“Petition for review of a decision of the Board of Immigration Appeals entered December 14, 2018, dismissing an appeal from the decision of an Immigration Judge denying asylum and the withholding of removal to petitioners, who are dual citizens of Honduras and Nicaragua, and their relatives. The agency denied relief based on Matter of B-R-, where the BIA held that to qualify as a “refugee” under the Immigration and Nationality Act, dual nationals must show persecution in both their countries of nationality. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The agency determined that while petitioners demonstrated persecution in Honduras, they did not show persecution in Nicaragua, and it concluded that they were not refugees and therefore not eligible for asylum. We grant the petition for review and hold that, to qualify as a “refugee” under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. PETITION GRANTED, BIA DECISION VACATED, AND CASE REMANDED. … We hold that to be considered a “refugee” under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, we GRANT the petition for review, VACATE the BIA’s December 14, 2018, decision, and REMAND to the BIA for further proceedings in accordance with the proper legal standard. … [T]he INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant’s nationality rather than in all such countries. … As the statutory text unambiguously provides that dual nationals need show persecution only in any singular country of nationality to qualify as a refugee under the INA, we need not defer to the BIA’s interpretation of § 1101(a)(42)(A). In any event, the BIA’s interpretation is unreasonable; Matter of B-R- required dual nationals to show well-founded fear of persecution in both countries of nationality. 26 I. & N. Dec. at 121. Such a reading is manifestly contrary to the text of the INA.”
I once used a similar fact situation as a final exam question in my “Refugee Law & Policy” class at Georgetown Law. It tested whether students could spot and develop a possible “Chevron challenge” to Matter of B-R-! I’m going to give the 2d Circuit an “A” on this one! The BIA gets an “F.”
Prior to B-R-, I had one of these cases in Arlington. I granted based on the plain meaning of the statute. I think the DHS waived appeal.
Bad law/bad policy/bad judging. In Matter of B-R-, the BIA stretched and ignored the statute to find a way to deny asylum to a journalist threatened by the Chavez Government of Venezuela — no “friend” of the U.S! He had little apparent contact with Spain, of which the IJ found he was a dual national, other than that his father was born there.
The respondents in Zepeda-Lopez were found to have suffered persecution in Honduras. They were ordered removed to Nicaragua, a country with a horrible human rights record and whose government has been condemned by the U.S.
Why would a competent BIA ignore the statutory language and misinterpret the law to achieve such highly problematic (one might argue downright dumb) results when a better, legally correct interpretation — merely following the statute (not “rocket science” 🚀) — would have produced more sensible results?
One possible conclusion: The BIA is “preprogrammed” to consider “denial of protection” under a statute designed for protection as the “preferred result.” Consequently, they will manipulate and misconstrue the law (and sometimes facts) to achieve removals that make neither legal nor policy sense.
With lots of better qualified, fair asylum experts out there who could be BIA judges, why is Garland employing the “B-Team” (at best) mostly selected by his predecessors, in these important, non-life-tenured quasi-judicial positions?
America needs a fair, functional, generous, realistic, practicalasylum system. It’s not achievable without a massive and much needed shakeup at the BIA and the trial courts at EOIR!
Bad judging, from the bottom to the very top of our justice system, by those disconnected from both the law and the human consequences of their lousy decisions, is helping to rip our nation apart. Garland has a golden opportunity to fix the “retail level” of our judiciary at EOIR. Why isn’t he getting the job done? Can our nation live with the consequences of his failure?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
WaPo: The deal is potentially significant because the Mexican government has more latitude to carry out deportation flights to Cuba and Nicaragua, nations whose frosty relations with Washington severely limit the United States’ ability to return their citizens.
MIDA: The Midwest Immigrant Defenders Alliance (MIDA) is a partnership between three nonprofit organizations — the National Immigrant Justice Center, The Resurrection Project, and The Immigration Project — and the Law Office of the Cook County Public Defender. The groups will lay the groundwork toward ensuring anyone who is detained by ICE and facing removal proceedings before the Chicago Immigration Court has access to legal representation. The program will reach immigrants detained in Wisconsin, Indiana, and Kentucky. While ICE no longer detains people in Illinois as the result of a state law enacted earlier this year, the groups will be representing Illinois residents who are being detained in other states.
NPR: Abbott first made his remarks about the landmark education decision on Wednesday, in the aftermath of a leaked Supreme Court draft opinion that would overturn Roe v. Wade. Abbott said the court’s 1982 ruling had imposed an unfair burden on his state. “I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different” from when the decision came down, Abbott said in an interview with conservative radio host Joe Pagliarulo.
Texas Attorney General Ken Paxton announced Friday that his office had launched an investigation into the charitable arm of the State Bar of Texas over allegations that the organization is providing funding to “entities that encourage, participate in and fund illegal immigration.”
Politico: The DeSantis administration on Thursday asked state hospitals to tally up the cost of providing medical care to undocumented immigrants. It’s part of an executive order Gov. Ron DeSantis signed in September, but just had his Agency for Health Care Administration start implementing.
NYT: California lost 117,552 residents last year, driven largely by the Covid death toll and a sharp drop in foreign immigration. This followed a slightly bigger decline in 2020, when the state lost 182,083 residents — the first time in more than a century that California got smaller.
Border Chron: In Arizona and Texas, border residents are noticing more and more personal belongings left behind, including confidential documents, along the U.S. side of the border wall.
Politico: A senior administration official told POLITICO that the United States is exploring ways to increase Russians’ access to the U.S. refugee program, but the official declined to give details. At the same time, U.S. diplomats are effectively being warned to be extra careful in issuing tourist visas to Russians because they are more likely to overstay them due to the war, according to the April 26 cable obtained by POLITICO.
AP: The bill was approved 32-8 in the Democratic-controlled chamber. That’s enough to override a possible veto from Republican Gov. Charlie Baker, who has expressed opposition to similar efforts in the past.
AP: The U.S. has, by some estimates, 2 million fewer immigrants than it would have if the pace had stayed the same, helping power a desperate scramble for workers in many sectors, from meatpacking to homebuilding, that is also contributing to supply shortages and price increases.
Reuters: Of the 200 families the task force has so far reunited, including Hernandez and her daughters, around three-quarters have struggled with housing insecurity, according to previously unreported data collected by two groups that aid them, Together & Free and Seneca Family of Agencies.
Reuters: The top lawyer at the agency that enforces U.S. labor laws on Monday directed staff to assure foreign workers that they will not face immigration-related consequences for filing complaints against employers or acting as witnesses in cases.
Howe: In a short order, the justices asked both sides in the dispute to weigh in on technical – but potentially dispositive – issues relating to the court’s power to hear the case.
BIA: Any fact that establishes or increases the permissible range of punishment for a criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law… Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver a controlled substance, is divisible with respect to the identity of the controlled substance possessed.
LexisNexis (quoting Geoffrey Hoffman): This is a great decision as it affirms that A-B- (III) changed the law back to A-R-C-G- and warrants a remand back to the IJ for new proceedings. Importantly the Board notes that the remand is in light of the current case law of the BIA and the Fifth Circuit. Importantly, the Fifth Circuit’s Jaco v. Garland decision was not cited or relied on as impeding remand.
LexisNexis: The critical question is whether this record compels the conclusion that Ali could not make the requisite showing with regard to the nature of the abuse to which he will be subjected, notwithstanding the IJ’s failure to have addressed evidence bearing on it. … [W]e conclude that the prudent course is to vacate and remand for the BIA to address the aspects of the record that have not been given their proper consideration.
LexisNexis: The agency found Jang ineligible for cancellation because of her state conviction for attempted second-degree money laundering, see N.Y. Penal L. § 470.15(1)(b)(ii)(A), which it deemed a “crime involving moral turpitude” (“CIMT”) under the Immigration and Nationality Act, see 8 U.S.C. § 1182(a)(2). We agree with Jang that, because her crime of conviction lacks the requisite scienter, it is not a CIMT.
Law360: The Fourth Circuit has rebuked the Board of Immigration Appeals for rubber-stamping an asylum-seeker’s in absentia deportation order without addressing claims that a medical issue made him late to his immigration hearing, saying tardiness isn’t the same as not showing up.
LexisNexis: Accordingly, we VACATE the three BIA decisions and REMAND the three cases for reconsideration in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).
Law360: The Sixth Circuit affirmed Monday the guilty plea of a Cuban man who was arrested for possessing methamphetamine with intent to distribute and sentenced to 16 years in prison, rejecting his argument that the district court made a crucial mistake by failing to warn him that the plea made him deportable.
Law360: The Board of Immigration Appeals must reconsider its denial of a Nigerian man’s request for protection against torture after the Ninth Circuit ruled that the man had presented enough evidence to show he faced persecution for being gay.
Law360: The Ninth Circuit said on Wednesday that the U.S. military can assist Border Patrol agents in capturing those suspected of entering the country illegally, rejecting an appeal by a Mexican national who was apprehended with the help of a Marine Corps surveillance unit.
Law360: An Indian citizen has asked a D.C. federal court to compel the U.S. Citizenship and Immigration Services to resolve her employment authorization renewal application, saying its unlawful delay caused her to lose her job where she was working on a multimillion-dollar project.
Law360: A Salvadoran immigrant has brought a $5 million lawsuit against a Maryland county, saying it illegally detained and transferred him to federal immigration enforcement over a minor traffic violation, exposing him to federal surveillance and the threat of deportation.
Law360: A federal judge refused to toss Florida’s legal attack on the Biden administration’s border detention policies, saying Wednesday the courts could “unquestionably” review the federal government’s detention policies in a harsh rebuke to the administration’s claims of discretionary immigration authority.
AILA: USCIS temporary final rule providing that the automatic extension period applicable to expiring EADs for certain renewal applicants who have filed Form I-765 will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs. (87 FR 26614, 5/4/22)
AILA: Department of Health and Human Services (HHS) supplementary request for public comment on revised versions of several forms related to the release of unaccompanied children from the custody of the Office of Refugee Resettlement (ORR). Comments are due 6/6/22. (87 FR 27159, 5/6/22)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
I just wanted to share the exciting news of the official launch of the Midwest Immigrant Defenders Alliance (MIDA)! With the end of Immigration detention in Illinois, ICE is sending Illinois residents to remote detention centers where there is little access to counsel. MIDA will ensure these immigrants are not left behind. MIDA is a partnership between three nonprofit organizations — the National Immigrant Justice Center, The Resurrection Project, and The Immigration Project — and the Law Office of the Cook County Public Defender, one of the largest public defender’s offices in the country.
New Legal Aid Alliance Aims to Build a Model for Universal Representation for Detained Immigrants Facing Deportation in the Chicago Immigration Court
CHICAGO (May 9, 2022) — A group of Illinois immigration legal aid organizations today announced a new collaboration to expand access to legal representation for people in deportation proceedings who are detained by Immigration and Customs Enforcement (ICE).
The Midwest Immigrant Defenders Alliance (MIDA) is a partnership between three nonprofit organizations — the National Immigrant Justice Center, The Resurrection Project, and The Immigration Project — and the Law Office of the Cook County Public Defender. Through a one-year pilot project, the groups will lay the groundwork toward ensuring anyone who is detained by ICE and facing removal proceedings before the Chicago Immigration Court has access to legal representation. The program will reach immigrants detained in Wisconsin, Indiana, and Kentucky. While ICE no longer detains people in Illinois as the result of a state law enacted earlier this year, the groups will be representing Illinois residents who are being detained in other states.
“The National Immigrant Justice Center has represented detained people facing deportation for more than 30 years and we are thrilled for this opportunity to collaborate with organizations who have been longtime partners in defending justice to build a model that will ensure our community members have access to legal counsel when in the throes of the punitive immigration system,” said Ruben Loyo, associate director, Detention Project, at the National Immigrant Justice Center. “We see this as the natural next step in our state to support immigrant families, and an opportunity for Illinois to join the ranks of other states like New York and California whose universal representation programs have demonstrated how ensuring access to affordable legal counsel both upholds justice and helps keep families and communities strong and intact.”
“Too often immigrants from rural and urban communities in central and southern Illinois feel isolated and marginalized while they are facing the highest possible stakes — separation from their families and, often, possible persecution in a country they may have not seen in decades,” said Charlotte Alvarez, executive director of The Immigration Project. “MIDA is a natural expansion of our current advocacy and legal representation work and will allow us to ensure that individuals who were ripped from our downstate communities are able to obtain legal counsel to pursue every possible avenue available to them under the law in order to return to their family.”
During the pilot, one day each week, any detained and unrepresented individual who has an initial hearing before the Chicago Immigration Court and cannot afford private counsel will have the opportunity to consult with one of the collaborating organizations and receive free legal representation while they are detained — and potentially longer if they reside in Illinois. The collaborative also will provide training and mentorship programs to welcome new legal practitioners into the immigration field, an effort to increase capacity for nonprofit organizations to provide affordable immigration defense services in the Midwest. Vera Institute of Justice, a nongovernmental research group, will track the case outcomes from the pilot project to evaluate its impact on ensuring justice for people facing removal proceedings in Chicago.
“Everyone has the right to due process, including immigrants, and immigrants should also have the right to an attorney if they can’t afford one — especially those in detention that face many more barriers to a successful case outcome,” said Eréndira Rendón, vice president of immigrant justice at The Resurrection Project (TRP). “MIDA will increase capacity of community-based legal service providers like TRP to ensure detained immigrants have free, high-quality, and accessible legal services. The more organizations trained and available to support with these complex cases, the closer we are to securing universal representation for all.”
“The launch of MIDA proves that the national movement for universal representation is only getting stronger as people across the country continue to demand that no one should face deportation without a lawyer,” said Annie Chen, director of the Advancing Universal Representation initiative at the Vera Institute of Justice. “People facing deportation are our neighbors, friends, and loved ones. They deserve to fight their cases freely in their communities and with a lawyer by their side. As Illinois becomes the latest state to support a right to counsel for all, we are honored to work with MIDA to help them evaluate their program’s impact and are confident it can serve as a model for the state’s anticipated task force.”
Removal proceedings can have dire consequences for many immigrants, including permanent separation from U.S. citizen children, spouses, and parents, as well as the loss of integral community members. In some cases, deportation may result in someone being sent to a country where they face persecution or death. Yet individuals in these proceedings do not have access to government-appointed legal counsel like defendants in other parts of the U.S. legal system. A 2016 study found that detained immigrants are twice as likely to obtain relief than detained immigrants without counsel. In recent years, approximately 60 percent of detained individuals have been unrepresented in the Chicago court.
The partnership between nonprofit legal aid organizations and the Immigration Unit Pilot of the Cook County Public Defender, one of the largest public defender’s offices in the country, is in part intended to chip away at racial disparities that permeate the U.S. immigration system. Black, Indigenous, and other immigrants of color are disproportionately targeted for criminal arrest, which significantly affects an immigrant’s ability to remain in the United States. Working together, public defenders and immigration counsel have the best chance of ensuring immigrants’ rights are upheld throughout the course of their legal proceedings. Advocates also believe that universal representation models advance racial equity by mitigating biases during the initial triage of cases, when service providers usually must decide who is most deserving of services.
MIDA’s launch comes just weeks after the Illinois General Assembly passed the Right to Counsel in Immigration Proceedings Act (SB 3144), which will create a task force to provide recommendations for how the state can move toward providing legal representation for all Illinoisans facing deportation. The legislation was the latest in a series of state laws championed by Illinois communities and supported by the General Assembly and Governor J.B. Pritzker in recent years to defend immigrant Illinoisans against unjust deportation. After years of advocacy to close immigrant detention centers in Illinois, in January the Illinois Way Forward Act took effect to prevent ICE from detaining immigrants within the state. MIDA seeks to ensure Illinois residents continue to have access to counsel even as ICE increasingly detains immigrants in remote detention centers that often lack local legal resources.
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Heartland Alliance’s National Immigrant Justice Center (NIJC) ensures human rights protections for low-income immigrants, refugees, and asylum seekers, with the goal of promoting access to justice, family integrity, and community safety. With offices in Chicago, Indiana, Washington, D.C., and San Diego, NIJC provides direct legal services to and advocates for these populations through impact litigation, public education, and policy reform. NIJC’s immigration legal services are organized into distinct projects, including a Detention Project that for years has served detained immigrants in the Midwest. Visit immigrantjustice.org and follow @NIJC on Twitter.
The Immigration Project (TIP) has secured access to justice alongside immigrant communities in downstate Illinois for over 25 years. With offices in the Bloomington-Normal and Champaign-Urbana areas, TIP maintains an extensive network of staff, partner organizations, and specially trained community member volunteers to provide legal and social services to immigrant families residing in the 86 counties that comprise its service area. TIP works with and for immigrant communities in mutuality and interdependence to build a more just future for all. Visit www.immigrationproject.org.
The Resurrection Project (TRP) builds relationships and challenges individuals to act on their faith, values, and ideals to create healthier communities. Since its founding in 1990, TRP has increased the availability of services and expanded opportunities for Chicago’s low- and moderate-income Latinos. TRP is a trusted provider of culturally and linguistically inclusive services and helps enable families to fully participate and become invested in their communities. TRP serves families from all over the Chicago metropolitan region, though it has a deeply rooted presence in the predominantly Latino and immigrant communities of Pilsen, Little Village, and Back of the Yards.
Through the work of the Law Office of the Cook County Public Defender (CCPD) Immigration Unit Pilot, Cook County is the largest county in the nation to provide public defenders to serve the immigrant communities that do not have access to attorneys. In early 2022, Governor JB Pritzker signed Public Act 102-0410 into law and the Cook County Board of Commissioners passed a resolution in support of this initiative. This authorized the defender’s office to begin representing noncitizens in removal proceedings.
Congrats to all the fantastic NDPA members involved in the MIDA!
As readers of “Courtside” know and see illustrated here every week, the difference between life-saving and legally correct grants of asylum and other relief in Immigration Court and “arbitrary, capricious, railroaded” denials that are all too common at EOIR is often in the expert representation.
Despite “throwing an occasional bone” to the pro bono and “low bono” bars, it’s disturbingly clear that, like its predecessors, the Biden Administration has chosen to fashion, operate, and staff the Immigration Court system on the assumption that the majority of individuals can be rotely “moved” through the system and rejected without effectively asserting their full rights to due process and fundamental fairness.
Effective representation does make a difference! An Administration and a Congress actually concerned about making the immigration justice system work would concentrate on moving toward universal representation rather than the plethora of money and time wasting “enforcement only/deterrence” gimmicks that have failed over the years and continue to do so every day!
Far right activist 5th Circuit Judges reacting to colleagues who followed law and ruled in favor of immigrants. PHOTO: Creative Commons.
The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:
Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, toviolate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.
“Oh, Great and Exalted Masters at DHS Enforcement, how high would you like your humble servants here at the BIA to jump?” https://www.flickr.com/photos/rasputin243/ Creative Commons License
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel
BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.
WILSON, Appellate Immigration Judge: [Opinion]
For those interested in what the law actually says (clearly an “endangered minority” @ Garland’s BIA), here’s key language from Judge Greer’s dissent:
In my view, when an Immigration Judge elects to undertake the analysis set forth in our precedent under Matter of Y-L-, either independently or at the request of the DHS, and determines that the application is frivolous, then the plain statutory language requires the entry of a frivolousness finding as part of the Immigration Judge’s decision. But whether the Immigration Judge must conduct that analysis in the first place because the DHS requests it is a different question. This key distinction was recognized by the Second Circuit in stating that Immigration Judges “regularly exercise discretion when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 672 F.3d at 186.
Requiring the adjudicator, either independently or at the request of the DHS, to engage in this analysis because the respondent made a material misrepresentation upends current practice by creating a rigid structure not mandated by statute. It equates adverse credibility with frivolousness, which I view as conflicting with the case law. It also removes discretion from the Immigration Judge and transfers it to the DHS. Accordingly, the majority’s interpretation constitutes an unwarranted expansion of the frivolousness provisions.
Although the majority casts this question in terms of whether an Immigration Judge may “ignore” a mandatory bar to asylum, the question is whether the Immigration Judge has the authority to make a judgment about pursuing a frivolousness inquiry. This Immigration Judge did not ignore a request from DHS to consider frivolousness. Rather, she entertained it and made an independent judgment not to proceed based on particular facts and circumstances in this case after deliberation. As discussed, the DHS did not question the judgment she made, which is a critical distinction; rather the DHS questions the ability of the Immigration Judge to make this judgment at all.2
I interpret the language and structure of the statute and development of relevant case law, combined with the sequencing of the frivolousness inquiry and its consequences, to demonstrate the discretionary nature of the frivolousness inquiry. And, absent any challenge to how the Immigration Judge exercised her discretion in this case, which I consider to have been waived, I would dismiss the appeal.
2 The relevant factors for the Immigration Judge to assess in making a threshold determination whether to invoke the frivolousness inquiry are a separate issue not implicated by the posture of this case.
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BIA to IJs: “When our overlords @ DHS tell you to jump, your duty is to say ‘how high, my masters!’”
Here, a correct (basically, uncontested on the merits, as Judge Greer points out) grant of a waiver was reversed just because DHS wanted “control” over the judges. “How dare a ‘mere employee’ of the AG exercise discretion in the face of the ICE ACC’s demand? Do these guys think they are ‘real’ judges? Let’s tell our buddy Merrick to get his toadies back in line like they were under Sessions and Barr!” How does the “holdover” BIA’s steady stream of incorrect decisions, institutionalized bias, and “worst practices” advance justice?
The “Biden-Era BIA” is building a legacy of bad law, poor judging, and unnecessarily broken lives. Not exactly what the Biden Administration promised during the election! And, it goes without saying that requiring a fact-heavy “full Y-L- analysis” at the unilateral demand of the DHS will increase the backlog as Garland “shoots for 2 million” in his dysfunctional and chronically misdirected “courts.”
Olukayode David Ojo, a native of Nigeria, seeks review of a September 27, 2019 decision of the Board of Immigration Appeals affirming an April 15, 2019 decision of an immigration judge, which denied asylum, withholding of removal, and relief under the Convention Against Torture. See In re Olukayode David Ojo, No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444-553 (Immigr. Ct. N.Y.C. Apr. 15, 2019).
We grant Ojo’s petition for review and vacate the agency’s denial of Ojo’s claims for asylum, withholding of removal, and CAT protection because those determinations were permeated with several legal and procedural errors. First, insofar as Ojo’s request for asylum was rejected as untimely, the agency applied the wrong legal standard to his claim of changed circumstances and the agency’s alternative discretionary determination failed to indicate the requisite examination of the totality of the circumstances. Second, with respect to Ojo’s application for withholding of removal, the agency erred when it incorrectly categorized his federal conviction for wire fraud and identity theft as “crimes against persons,” and concluded that they fell within the ambit of “particularly serious crimes” without evaluating the elements of the offenses as required under the agency’s own precedent. Finally, with respect to his CAT claim, the agency erred in concluding that Ojo lacked a reasonable fear of future persecution or torture in Nigeria due to his status as a criminal deportee without even addressing the declaration of his expert supporting his claim.
Accordingly, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.
JUDGE MENASHI dissents in a separate opinion.
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The majority opinion is 51 pages; Judge Menashi’s dissent another 35 pages. That’s 86 pages of Article III time trying to straighten out the BIA’s sloppy work and mis-application of basic legal concepts.
It would be in everyone’s best interests if Garland jettisoned his “Miller Lite holdover BIA” and replaced them with real appellate judges — experts in human rights and asylum law with reputations for careful practical, due-process-focused scholarship — Judges like his sole BIA appointment to date, Judge Andrea Saenz.
It’s painfully obvious that the out of control problems in immigration law will NOT be solved with the BIA currently in place. They lack the expertise, temperament, and background to get “the retail level of our justice system” back on track.
As this case, among others, illustrates, Garland’s failure to institute long overdue personnel and quality control reforms at EOIR is continuing to “bleed over” into the Article IIIs, occupying an increasing amount of their time. It also creates astounding inconsistencies among Circuits and among panels in the same Circuit. Garland’s “personal court system” is dysfunctional on multiple levels and is sowing more dysfunction throughout our justice system!
Garland and his lieutenants, including “above the fray” Solicitor General Liz Prelogar, also should take a look at the OIL “defense” in this case. It’s basically this:
“The respondent is a bad guy. So, it doesn’t matter if the BIA applies the wrong legal standards because they have discretion to deport any bad guy for any reason or even for the wrong reason. Even if the BIA didn’t do its job, you, Court of Appeals, should do it for them because, as we said, this is one bad dude who needs deporting. Did we mention that he’s a bad guy?”
The combined abysmal performance of EOIR and OIL, enhanced by the lack of leadership and engagement from Garland and his senior managers, is eroding the foundations of the U.S. legal system at an alarmingly rapid rate!
I will say that at least he thought about, analyzed, and explained his views in much greater detail than the so-called “subject matter experts” at the BIA.
The answer is to replace the ongoing “EOIR Clown Show” 🤡 with real expert judges, at both the trial and appellate levels, who will consistently get these right in the first (or second) instance. That would “move” dockets (without violating rights), reduce the burdens on the Article IIIs, and promote (rather than actively undermine) consistency. It would also produce a consistent body of judicial scholarship on due process, racial justice, and best judicial practices in immigration, human rights, and fundamental Constitutional law that would help guide and solve systemic problems in the overall Federal legal system.
Why not bring in the talent and creative problem solving to turn a disgraceful, deadly, resource-wasting failure into a model judiciary? It’s a question that Garland has yet to answer!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
From our leader and spokesperson “Sir Jeffrey” Chase:
Round Table Brief cited today in Oral Argument
Hi all:To end the week on a positive note, in oral arguments today before the Second Circuit, one of the judges asked the OIL attorney the following:
“What are we to make of the amicus brief filed by so many former IJs who stress the importance of in person hearing in the special role of Immigration Judges in developing the facts before rendering an opinion, particularly in something as factually heavy as this, as undue hardship to the children?They emphasize the importance of hearing in person testimony and suggest that it is an abuse of discretion to not permit it when it is requested.How do you respond?”
The case is Martinez-Roman v. Garland.
. . . .
The IJ wouldn’t let two witnesses testify: the medical expert, and a 13-year-old child of the respondent.So when the judge asked that question, the OIL attorney claimed that the IJ was trying to protect the child from the psychological trauma of testifying.The judges pointed out that the IJ had actually said he wouldn’t allow the testimony only because it would be duplicative.In the child’s case, it was supposedly “duplicative” of a one-page handwritten statement written by the child.In the expert’s case, the IJ admitted that he hadn’t actually read the expert’s written statement, causing the circuit judges to ask how the IJ could have known the testimony would be duplicative of a statement he hadn’t read.
Wishing all a great, safe, and healthy weekend! – Jeff
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Garland’s “amazing” EOIR “judges” can divine the content of statements they never read, while Prelogar’s “equally amazing” DOJ lawyers just “make it up as they go along” when arguing before Article IIIs! https://www.flickr.com/photos/rasputin243/ Creative Commons License
So, Merrick, it’s an “A-OK” judicial practice for your judges to deem live testimony “duplicative” of a statements they never read! That’s some feat of clairvoyance!
“Clairvoyance” appears to be more of a qualification for your “judges” than actual expertise and experience vindicating due process in Immigration Court!
Also, when your attorneys are confronted with the defects in your judges’ performance by Article IIIs who have actually read the record and familiarized themselves with the evidence, (something you apparently deem “optional” for both your IJs and the attorneys defending them) it’s also “A-OK” for your attorneys to fabricate any bogus pretextual excuse, even one that is clearly refuted by the record.
Perhaps, SG Liz Prelogar should take a break from losing cases before the Supremes and pay attention to what nonsense DOJ attorneys are arguing before the lower Federal Courts.What, Liz, is the legality and the morality of defending a broken system, wholly owned and operated by your “boss,” that dishonestly denies due process to the most vulnerable among us?
Harvard Law might have spared Solicitor General Elizabeth Prelogar from having to work in the “legal trenches” of Immigration Court, unlike the lawyers who have been fighting to keep democracy alive over that past five years! Apparently, she took a pass on the Ethics class too, as DOJ lawyers under her overall direction “make it up as they go along” in defending the dysfunctional Immigration Courts before the Article IIIs! PHOTO: Twitter
Is this what they taught you at Harvard law? Did you miss the required course on ethics and professional responsibility? Why is the Round Table doing the work YOU should be doing as a supposedly responsible Government official who took an oath to uphold the Constitution and the rule of law?
Yeah, I know that Prelogar, like her other elitist political appointee colleagues, operates in the “legal stratosphere,” has clerked for two liberal Supremes, and otherwise “punched all the right tickets” in Dem politics. But, the problem here is that like it or not, Immigration Courts are the “retail level” of American justice that affects everything else! Right now, that effect is stunningly and unacceptably adverse!
The GOP White Nationalist nativists, like Sessions, Barr, and their hand-selected toadies, “got that.” That’s why they used their time in office to weaponize EOIR and degrade due process and humanity, while using “Dred Scottification” developed in immigration to diminish and degrade the rights of “the other” throughout our legal and political systems! The dots aren’t that hard to connect, unless, apparently, you’re a Dem Politico serving in the DOJ!
For whatever reason, perhaps because Dems keep appointing politicos who haven’t had to personally confront the mess in Immigration Court, folks like Garland, Monaco, Gupta, Clarke, and Prelogar entertain the elitist belief that standing up to the “nativist appeasers” in the Biden White House, getting rid of bad judges and incompetent administrators at EOIR, and bringing our dysfunctional (“killer”) Immigration Courts into conformity with Constitutional Due Process, international standards, and simple human dignity are “below their pay grade.” Not so!
Have to hope that the Chairman Lofgren and her staff are paying attention and will start throwing more light on Garland’s deficient handling of EOIR and the disgraceful, intellectually dishonest, arguments his attorneys are making before the Article IIIs!
This system is BROKEN, and going into the second year of the Biden Administration, Garland has NOT taken the necessary bold, decisive, yet quite obvious and realistically achievable, steps to FIX it! What gives?
Since Liz has never been a judge, let me provide an insight. No judge, life-tenured or “administrative,” liberal, conservative, or centrist, likes being played for a fool, misled, or “BS’ed” 💩 by counsel. (I actually remember “chewing out” attorneys in open court for failing to acknowledge controlling precedent in arguing before me.)
They particularly hate such conduct when it comes from lawyers representing the USG! Because Federal Judges often come from a bygone generation, many still retain the apparently now long outdated concept that DOJ attorneys should be held to a “higher standard.” Your predecessor, Trump shill Noel Francisco, certainly mocked that belief during his disgraceful tenure at the DOJ, particularly in his disingenuous and aggressive defense of the White Nationalist, anti-immigrant, anti-asylum agenda! Do you REALLY want to follow in HIS footsteps? Sadly, At this early point in time, that answer appears to be “yes.”
So, that leads to another question. Why do progressive human rights and immigration advocates continue to turn out the vote and loyally support a Dem Party that, once in office, considers them, their values, and the human souls they represent to be “expendable” — essentially “fungible political capital?” It’s something I often wondered when I was on the inside watching Dem Administrations screw up EOIR and immigration policy. I still don’t know the answer, and perhaps never will.
“Hey Judge Garland! Why not put some REAL judges who can ‘play this game’ into your lineup? What’s with the ‘minor league roster’ left over from the guys who couldn’t shoot straight?” PHOTO: Rudi Reit Creative Commons
Here’s the full decision in Brathwaite v. Garland:
Petitioner Aldwin Junior Brathwaite petitions for review of an order of removability, entered by the Honorable Joy A. Merriman, U.S. Immigration Judge (“IJ”), on June 11, 2019, and approved by the Board of Immigration Appeals (“BIA”) on December 11, 2019. Because the BIA’s decision is premised on an unreasonable construction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), we GRANT the petition for review and REMAND the matter to the BIA for further proceedings consistent with this opinion.
PANEL: CALABRESI, RAGGI, AND CHIN, Circuit Judges.
OPINON BY: Judge Calabresi
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Man, even with all the ridiculous “built in tilt” favoring Executive interpretations in Chevron, the BIA still blew it! Normally, in their attempt not to burden their comfortable lives with difficult questions of law, the Article III’s will find that any minimally rational interpretation of an ambiguous provision is “good enough for Government work” under Chevron. But, the BIA couldn’t even clear that “low hurdle!” Simply amazing!
Particularly so when you think that one of the (bogus) justifications often given for “Chevrontask avoidance” by the Article IIIs is the “superior expertise” of the Executive adjudicators, clearly a mirage in the case of the BIA and EOIR! At least over the past four years, the primary “expertise” for being selected for an EOIR judgeship has been past government experience, preferably in prosecution, a willingness to check the “deny box,” and ability to crank out the required minimum number of final orders of removal without thinking too much, rocking the boat, or, heaven forbid, actually vindicating the rights of migrants over the wishes of “The Partners” at DHS Enforcement! What a total sham that Garland is now presiding over!
Two years of litigation to “get back to ground zero!” And, you wonder why Garland’s Immigration Courts continue to careen out of control and generate backlog faster than they do positive legal guidance and best practices?
At core, courts are about problem solving, and judges are supposed to be “expert practical problem solvers.” Try to unearth those essential qualities in the disgracefully flawed “judicial” hiring practices at EOIR since 2000!
I note that no “outside expert” has been appointed to the BIA since before the 2000 election. Those few who were there in 2000 were rapidly “purged” by Ashcroft, sending the strong message that “expertise and independent voting” will be “career limiting and threatening” at the BIA.
That was followed by thoroughly rotten “jurisprudence” from the BIA that actually provoked widespread outrage among the Article IIIs at the time. The outcry became so loud, that finally even the Bush II Administration had to “tone down” the anti-immigrant rhetoric and abusive treatement of migrants and their attorneys in Immigration Court that Ashcroft’s “purge” engendered and encouraged. Of course, in doing so, DOJ officials disingenuously blamed the Immigration Judges rather than the “perps” in their own ranks who had declared “open season” on migrants’ rights and human dignity.
Not surprisingly, bad, biased hiring practices, which have intentionally excluded and grossly undervalued the most promising expert problem solvers from outside government bureaucracy, have produced a dysfunctional morass at EOIR. The lack of that basic recognition, even from a recently retired Federal Appellate Judge who should know better, is destroying the foundations of our justice system! Enough already! We need, American Justice needs, progressive reforms at EOIR! NOW, not sometime off in the indefinite future!
Yup, there might be problems with an appellate board that almost always tries to skew things against individual applicants. Rushing to crank out those final orders of removal and pushing already overwhelmed IJ’s to “just pedal faster” might not be a very good “strategy.” And, the lack of professional training, competent judicial administration, expert guidance from the BIA, and unwillingness to implement best practices further deteriorates the Immigration Courts every single day.
While fundamental improvements in personnel and administration at EOIR are well within Garland’s reach, he seems relatively uninterested in taking the bold, courageous actions necessary to restore due process. So, litigating his ludicrously broken, unfair, and dysfunctional system to a standstill, while supporting legislation to get an independent court, appear to be progressive advocates’ only viable options at this point.
This issue is likely to end up in the Supremes. In the meantime, however, there should be lots of backlog-building remands in the Second Circuit. And, who knows whether the BIA will get it right this time around. Even after court remands, their record isn’t particularly encouraging.
The BIA probably will have to wait for OIL, their political handlers at DOJ, and DHS enforcement to “signal” what the “preferred result for litigating purposes” is before venturing forth on another precedent. Does this sound like “fair and impartial adjudication” under Matthews v. Eldridge? No way! So why is EOIR continuing to operate as a “Constitution free zone” under Garland?
It’s past time for Garland to pull the plug and give progressive experts a chance to rescue his dysfunctional court system and save many of the individuals caught up in this never-ending due process nightmare! When will they ever learn, when will they ever learn?
Much to the shock, consternation, frustration, puzzlement, and horror of progressive advocates who helped him replace Billy Barr as AG, it’s been three continuous months of “Amateur Night @ EOIR” under Judge Garland! Predictably, many Article IIIs haven‘t been enthralled with this performance! How many cases will be remanded from the Article IIIs and how much more backlog will be unnecessarily generated before Garland wakes up and pays attention? PHOTO: Thomas Hawk Creative Commons Amateur Night
EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts. Attorneys have reported seeing non-detained cases advanced or continued with less than 30 days’ notice before the individual hearing, so check your EOIR portal.
Reception window: weekdays 8:30am – 12:00pm. In-person, hard-copy service of documents will only be accepted at the window for detained cases pending at the Varick Street Immigration Court.
eService: For detained and non-detained cases pending before the Varick Street Immigration Court, you must use the “Varick Street NYC” location. For cases pending before the Immigration Courts at 26 Federal Plaza and 290 Broadway, you must use the “New York City” location. Beginning July 6, 2021, documents submitted with the wrong location designation will be rejected.
TOP NEWS
Judge Robert A. Katzmann (1954-2021) Second Circuit Court of Appeals PHOTO: US Courts.com
NYT: “Almost single-handedly he convinced the organized bar to provide free quality representation for thousands of needy immigrants,” said Jed S. Rakoff, a senior U.S. District Court Judge. “No judge ever took a broader view of the role of a judge in promoting justice in our society, or was more successful in turning those views into practical accomplishment.”
Vox: While details of the plan are short, [Biden] has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him. But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.
Bloomberg: The Justice Department and Department of Homeland Security plan to propose new criteria for asylum-seekers as part of Biden’s broader goal to retool the nation’s immigration system. The Department of Homeland Security will draft ways to strengthen protections for undocumented individuals brought to the U.S. illegally as children, under the program known as Deferred Action for Childhood Arrivals (DACA). See also Aaron Reichlin-Melnick’s Twitter thread summarizing the agenda.
Reuters: A new U.S. immigration policy announced on Monday will expand access to work permits and deportation relief to some immigrants who are crime victims while their visa cases are pending.
WaPo: Though President Biden quickly signed several executive orders to roll back some of President Donald Trump’s most draconian policies — including one that sent asylum seekers back to Mexico to await their court hearings — a number of other restrictive measures and rulings that directly affect domestic violence survivors remain in place.
NBC: Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department.
AP: VOICE will be replaced by The Victims Engagement and Services Line, which will combine longstanding existing services, such as methods for people to report abuse and mistreatment in immigration detention centers and a notification system for lawyers and others with a vested interest in immigration cases.
Reuters: An effort by U.S. President Joe Biden to reunite migrant families separated by the previous administration is moving slowly, with only seven children reunited with parents by a task force launched in February, according to a U.S. Department of Homeland Security (DHS) report released on Tuesday. Another 29 families are set to be reunited in the coming weeks, the report said.
NYT: There was a slight increase in the number of border crossings, encounters and apprehensions overall during the same time period, a sign that the record surge of migrants trying to get into the country this spring could be starting to stabilize.
WaPo: As of May 31, nearly 9,000 children were kept at unlicensed sites, compared with 7,200 at licensed shelters, court filings by the U.S. government said. While the unlicensed facilities were running at near capacity in May, the licensed facilities were only about half full, according to a report filed by the agency tasked with the children’s care.
WaPo: U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases.
ABC: Her trip to meet with Guatemalan and Mexican leaders is part of a two-track approach to the issue, senior administration officials have said, of “stemming the flow” of migration in the near term and establishing a “strategic partnership” with Mexico and Northern Triangle countries “to enhance prosperity, combat corruption and strengthen the rule of law” in the longer term.
ImmProf: It’s one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden’s conviction doesn’t qualify as a violent felony, though he focuses on different statutory language: “use of physical force.”
Law360: The Fifth Circuit declined to review a Salvadoran man’s appeal for humanitarian deportation relief Wednesday, finding that immigration judges had rightfully denied his claims after he failed to show he was a member of a persecuted group.
LexisNexis: Arnoldo Antonio Vasquez, a former Salvadorian military officer, was a naturalized American citizen. Based on his role in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador, the government sought to revoke his citizenship, that is, to denaturalize him.
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21) AILA Doc. No. 21060736
Applying the “reason to believe” standard under INA §212(a)(2)(C), the court held that substantial evidence supported the BIA’s conclusion that there was probable cause to believe that petitioner was involved in illicit drug trafficking and was thus inadmissible. (Rojas v. Garland, 5/27/21) AILA Doc. No. 21060735
The court held that the government is not required to prove that a returning lawful permanent resident (LPR) meets an exception under INA §101(a)(13)(C) before it can parole the returning LPR into the United States for prosecution under INA §212(d)(5). (Vazquez Romero v. Garland, 5/28/21) AILA Doc. No. 21060737
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21) AILA Doc. No. 21060738
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021) AILA Doc. No. 21060899
Law360: The First Circuit should stand by its decision to wipe a lower court ruling that blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, despite the Biden administration’s order curbing many such arrests, the federal government argued Thursday.
Law360: A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife’s spousal visa application, which he says has not been acted on since it was filed in January 2020.
USCIS issued three policy updates in the Policy Manual to clarify the expedited processing, improve RFE and NOID guidance, and increase the validity period for initial and renewal EADs for certain pending adjustment of status applications. AILA Doc. No. 21060934
USCIS updated policy guidance in its Policy Manual regarding the criteria used to determine whether a case warrants expedited treatment. AILA Doc. No. 21060936
USCIS: USCIS is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.
USCIS: USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.
ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals. AILA Doc. No. 21061030
ICE provided guidance on submitting a prosecutorial discretion request to OPLA including a listing of relevant email addresses that can be used when submitting a request to OPLA field locations. AILA Doc. No. 21061430
EOIR issued a memo that provides EOIR policies regarding the effect of DHS’s updated enforcement priorities and initiatives. Memo is effective as of 6/11/21. AILA Doc. No. 21061133
EOIR: As part of EOIR’s ongoing efforts to improve operations and review existing policy memoranda, the following Policy Memorandum (PM) is rescinded: 1.PM 21-10, Fees.
I note that Judge Robert A. Katzmann spoke at several of our Immigration Judge Conferences and also attended a Georgetown Law Judicial seminar on inconsistency in asylum adjudication that I participated in as an Immigration Judge. He was instrumental in creating both the Immigrant Justice Corps and the NYC representation program for migrants.
Notably, Liz Gibson, of “The Gibson Report,” one of my former Georgetown Law students was also selected by Judge Katzmann and other experts for the super-competitive Immigrant Justice Corps! And we can see what a difference Liz is making every day!
Those of us committed to due process and fundamental fairness mourn Judge Katzmann’s passing. His enlightened, humane, and compassionate leadership will be missed.
Lots of important information for practitioners here. It illustrates that while ICE and USCIS are moving forward with some modest, long overdue due process and “best practices” reforms, EOIR under Garland continues to lag behind.
This week’s disclosures about the deep problems at the Trump DOJ, which have not been effectively addressed, show that under Garland the DOJ isn’t inclined to fix even the most obvious defects at Justice until they are exposed by outside groups and the public pressure grows. At a time when the DOJ needs bold, proactive progressive leadership, Garland’s “reactive” style of management and lack of aggressive progressive leadership continues to erode confidence in our justice system.
As illustrated by last week’s NBC Nightly News report on dysfunction, polarization, and lack of due process and fundamental fairness at EOIR, the ongoing disaster in our Immigration Courtsactually dwarfs all of the other problems at the DOJ. And, it certainly adversely affects more human lives and American communities.
Due process, human rights, and racial justice advocates and experts should not trust Garland and his team to fix EOIR before it’s too late. In the first place, he currently has nobody on his “team” with the Immigration Court experience and the progressive expertise to get the job done!
So it’s going to take more aggressive litigation, more demands to Congress for Article I, more op-eds, more front page articles and news reports, more calls and letters to the White House, and more “creative disruption” to force Garland’s hand on EOIR reform.
Additionally, rather remarkably, and contravening the Biden Administration’s pledge of honoring diversity, the DOJ has done nothing on its own to recruit or attract a diverse group of expert progressive judges. Indeed, Garland actively undermined the effort with an outrageous “17-judge giveaway” to the disgraced Billy Barr. This week’s revelations showed just how ridiculous was Garland’s inappropriate “deference” to Barr-selected, non-progressive, non-diverse judges!
Therefore, it’s absolutely critical that the rest of us keep beating the drum and encouraging the “best and brightest” progressive immigration experts to apply for judicial and executive positions at EOIR. In particular, the immigration judiciary lacks representation by talented Latina and Latino judges with experience representing asylum applicants and other migrants.
They are out there, for sure! But EOIR’s aggressively anti-Hispanic, often misogynist culture, the anti-Hispanic “jurisprudence” churned out by Sessions, Barr, and the BIA, and the demeaning and “dumbing down” of the Immigration Judge jobs to be nothing more than glorified “deportation clerks” has effectively discouraged the folks we need on the bench from applying. And, posting for short periods on “USA JOBS” is not a serious effort at recruiting from the outside or creating a more representative pool of applicants.
NAIJ is doing some of the “diversity outreach” that that should be DOJ’s job. But, they need help! Another reason why Garland’s failure to restore NAIJ as the representative of Immigration Judges is highly problematic! These things should be “no brainless” under a Dem Administration. Instead, at Garland’s DOJ, it’s like pulling teeth!
A number of minority attorneys have told me that they felt unwelcome at the “Trump EOIR” or thought that they couldn’t function independently and effectively in a culture that obviously demeaned and dehumanized people of color.
We can’t force positive, progressive change in the toxic culture at EOIR without getting “agents of change” and judicial role models from currently underrepresented communities on the inside, where they belong. Also, those who actually have represented individuals in Immigration Court have both organizational skills beyond those of many government bureaucrats and practical problem solving ability that simply isn’t promoted or recognized within the inefficient “top-down” EOIR bureaucracy.
So, members of the NDPA, get those EOIR applications in there! Garland is tone deaf to the necessity and the opportunity for a progressive judiciary at EOIR that he squanders every day with his lackadaisical non-leadership. So, as is often the case with Dem Administrations, you’re going to have to take the initiative, break down the the doors of bias and incompetence at EOIR, and create the progressive judiciary of the future with or without Garland’s support!
EOIR is going to have trouble continuing to keep the “best and brightest” progressives out of the Immigration Judiciary. Don’t wait for change to come to you — not going to happen under Garland! Be an agent of aggressive, progressive change! Take the due process/racial justice revolution to the halls of justice @ Justice!
