"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.
Judge Tipton in the Southern District of Texas enjoined the 100-day removal pause. The 105-page order has something for everyone. For the history fans, there are references or citations to John Marshall, Joseph Story, and James Madison. For the federalism aficionados, there’s a description of the three branches of government and an explanation about the relationship between the federal government and the states. For the administrative law scholars and Bluebook fans, the proposition that “ICE is an agency within DHS” is supported by a footnote, a citation, and a parenthetical explanation. And for anyone interested in bilingual education, you’ll note that “regular” students cost Texas one amount and students enrolled in the state’s bilingual program cost another amount.
César Cuauhtémoc García Hernández
Professor of Law
University of Denver crimmigration.com
(he/him/his/el)
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The case name says it all, particularly in light of the past two weeks. Indeed, “Texas v. The People” would be equally fitting. GOP misrule and the vile shenanigans of GOP politicos, like Texas AG Ken Paxton (who also fled the state during the crisis he and his party helped cause) has real life consequences. It kills and harms U.S. citizens of all political persuasions in addition to foreign nationals in our country.
Note that the order does not purport to stop DHS or EOIR from granting stays of removal on a case by case basis.
Notwithstanding the flaws in Judge Tipton’s reasoning, cogently pointed out by Cesar, I wouldn’t put much stock in the chances that the right-wing dominated Fifth Circuit or the Supremes will rein in Tipton and other righty jurists. I predict that GOP jurists oft-expressed grave concerns about the effect of nationwide injunctions will dissipate now that they are being used as a tool to undermine the Biden Administration’s attempts to return rationality and humanity to our justice system.
The deep problems in the Article III Judiciary, aggravated by four years of bad appointments by Trump & Mitch, reinforce the pressing need for immediate Immigration Court reform, starting with replacing the BIA. That is the most pressing task facing the Administration on the judicial front. The EOIR judiciary is one that the Biden Administration has complete authority to fix with better judges. Now, not later!
And, with better judges at EOIR, there will be fewer bad legal decisions thrown into the Article III “lottery.” Moreover, as I continue to point out, it will give the Administration a much-needed pool of diverse, readily identifiable, talented, experienced, progressive, due-process/human rights committed jurists to draw on for Article III appointments. Additionally, it sets the stage for legislation to create an independent Article I U.S. Immigration Court.
Can advocates for racial justice, human rights, and immigrants’ rights finally get the message across to Judge Garland about the urgent need to act decisively? Or, like the Obama Administration, will this turn out to be another golden opportunity for justice squandered?
Unfortunately, I could find little in this week’s confirmation hearings to visibly show that Judge Garland “got” the connection between the refuge that he and his family were so grateful for and the continuing unconscionable mess at EOIR.
Indeed, if Judge Garland and his family showed up at our borders today seeking refuge from persecution, they would unceremoniously have been loaded onto a plane and “orbited” back to the persecution from which they fled without any process at all, let alone “due process of law.” Even if they had gotten a hearing, an EOIR “judge” somewhere along the line would undoubtedly have found a “reason to deny” regardless of the need for protection.
For a good measure, they probably would have been mocked as “criminals, line jumpers, and job stealers” by GOP politicos and their toadies still stashed throughout our broken and compromised immigration bureaucracy. Their lives would have been treated as worthless; their removal to persecution, harm and possible death, just another “statistic” to tout in connection with false claims to having achieved “border security!”
Use the “overseas refugee program?” Probably not. Although Biden has pledged to restart refugee admissions, as a practical matter our once proud and highly efficient refugee processing system is currently in tatters after four years of intentional abuse inflicted by the defeated regime.
Every day that the ongoing problems at EOIR remain unresolved is another day of injustice for refugees and other migrants, as well as another day of frustration and abuse heaped on those attempting to help them achieve justice.
For the Republicans, justice is not something that “rolls down like waters,” it’s something that comes down like a hammer.
This was a failure that Sen. Cory Booker (D-N.J.) aimed to make clear when he asked Garland whether he was familiar with a biblical reference to justice that advises to “act justly and to love mercy.” Much of Booker’s questioning centered around racism within the criminal justice system — the disproportionate arrests of minorities, lousy legal representation for the poor, sentencing imbalances and the issue that caused Kennedy such befuddlement, implicit bias.
Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?
Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?
“I come from a family where my grandparents fled antisemitism and persecution,” Garland said. And then he stopped. He sat in silence for more than a few beats. And when he resumed, his voice cracked. “The country took us in and protected us. And I feel an obligation to the country, to pay back.”
“This is the highest, best use of my one set of skills,” Garland said. “And so I want very much to be the kind of attorney general you’re saying I could be.”
And that would be one focused on protecting the rights of the greatest and the least — and even the worst. Punishment is part of the job. But it’s not the definition of justice.
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Read Robin’s complete article at the link. She can write! So delighted the Post got her off the “fashion beat” where her talents were being squandered, and got her onto more serious stuff!
Judge Garland’s awareness and humility are refreshing. But, unless he takes immediate action to redo EOIR and the rest of the DOJ’s immigration kakistocracy, it won’t mean much.
Judge, it could have been YOUR family forced to suffer kidnapping, extortion, murder threats, family separation, and other overtly cruel and inhuman treatment in squalid camps in Mexico, waiting for “hearings” that would never come before “judges” known for denying almost 100% of claims regardless of merit! YOUR family’s plea for refugee could have been rejected by some nativist bureaucrat or “hand-selected by the prosecutor” “Deportation Judge” for specious, biased reasons!
YOUR family was welcomed! But what if the only thought had been how to “best deter” “you and others like you” from coming?
Maybe because you and yours are White and hail from Eastern Europe, the “rule of law” has a different meaning and impact than it would if you were Brown, Black, or some other “non-White” skin color and had the misfortune to be from a “shithole” country where we have no concern for what happens to humanity? Or, worse yet, what if your family’s claim had been based on your Grandmother’s gender status? You would really be out of luck under today’s overtly misogynist approach to refugee law flowing out of EOIR!
Then, where would you and your nice family be today? Would you even be? THOSE are the questions you should be asking yourself!
Unfortunately, it’s easy to see that folks like Cotton, Hawley, Cruz, and Kennedy will be deeply offended if you attack their White Nationalist privilege, views, and agendas in any meaningful way.
And, if you actually make progress in holding the Capitol insurrectionists accountable, you’ll have to deal with the unapologetic, disingenuous, anti-democracy, insurrectionist actions of folks like Hawley and Cruz. That won’t be too “bipartisanly popular” with a GOP gang that just overwhelmingly worked and voted to ignore the evidence and “acquit” the “Chief Insurrectionist.”Who, by the way, was a main purveyor of the institutionalized racism that infects EOIR and the rest of the DOJ. It’s no real secret that “America’s anti-democracy party” aids, abets, encourages, and exonerates White Supremacists and domestic terrorists.
In the GOP world, “mercy” and “due process” are reserved for White guys like Trump, Flynn, Stone, White Supremacists, and “Q-Anoners.” Folks of color and migrants exist largely below the floor level of the GOP’s definition of “person” or “human.” For them, justice is a “hammer” to beat them into submission and punish them for asserting their rights.
So, restoring the rule of law at the DOJ is going to be a tough job —you need to clean house and get the right folks (mostly from outside Government) in to help you. And, you must examine carefully the roles of many career civil servants who chose to be part of the problems outlined by Chairman Durbin in his opening remarks.
You’re also going to have to “tune out” the criticism, harassment, and unhelpful “input” you’re likely to get from GOP legislators in both Houses who are firmly committed to the former regime’s White Nationalist agenda of “Dred Scottification,” disenfranchisement, nativism, and preventing equal justice for persons of color, of any status!
Think about all the reasons why you and your family are grateful for the treatment you received from our country. Then, think of the ways you could make those things a reality for all persons seeking refuge or just treatment, regardless of skin color, creed, or status. That’s the way you can “give back” at today’s DOJ! That’s the way you can be remembered as the “father of the diverse, representative, independent, due-process exemplifying21st Century Immigration Judiciary!” 🧑🏽⚖️👩⚖️👨🏻⚖️
I am reaching out again to ask for your help in recruiting adjunct professors for VIISTA, the new online certificate program I created at Villanova University to train immigrant advocates. The program launched in the fall and will start again in May. We expect to need 3-5 additional adjunct professors to start in May, August and/or January.
The VIISTA certificate program is aimed at people who are passionate about immigrant justice but are not interested in pursuing a law degree at the moment, such as recent college grads, people seeking an encore career, retirees and the many who currently work with migrants and want to understand more about the immigration laws that impact them. It is also attractive to students seeking to take a gap year or two between college and law school or high school and college.
VIISTA is offered entirely online and is asynchronous, allowing students to work at their own pace and at times that are most convenient for them. I piloted the curriculum during last academic year and the students loved it. It launches full time in August, and will subsequently be offered each semester, so students can start in August, January, and May.
The Adjunct Professors will work with me to teach cohorts of students as they move through the 3-Module curriculum. Module 1 focuses on how to work effectively with immigrants. Module 2 is designed to teach the immigration law and policy needed for graduates to apply to become partially accredited representatives. Module 3 has more law, and a lot of trial advocacy for those who want to apply for full DOJ accreditation. Each Module is comprised of 2×7-week sessions and students report that they have worked between 10-15 hours/week on the course materials. As an adjunct professor, you will provide feedback weekly on student work product, conduct live office hours with students and work to build engagement and community among the students in your cohort. Tuition for each Module is $1270, it is $3810 for the entire 3-Module certificate program.
I would love for you to help me by sharing this with former students and immigration lawyers in your networks. Here is a link to the job posting:
Also, please note that scholarships are being offered through the Augustinian Defenders of the Rights of the Poor to select students who are sponsored to take VIISTA by recognized organizations. For more information on the scholarships, visit this page, https://www.rightsofthepoor.org/viista-scholarship-program
My best,
Michele
Michele
Michele R. Pistone
Professor of Law
Villanova University, Charles Widger School of Law
Founding Faculty Director, VIISTA: Villanova Interdisciplinary Immigration Studies Training for Advocates
Michele tells me that the time commitment is approximately 8-10 hrs/week, and significantly, the teaching can be done from anywhere you have an internet connection!
For those of you who haven’t taught law online, I was amazingly pleased by my experience last summer at Georgetown Law. Of course, I attribute that almost all to the remarkable skills of the students in creating dialogue and sharing information. They also did it with humor, creativity, and “presence,” showing that they understood the ”performing artist” aspects of lawyering, judging, and teaching!
I also benefitted from the outstanding technical support, instruction, and patience from the Georgetown Law staff! I know that Michele’s technical support is also some the most talented out there on the internet!
And, the best part of the job would, in my view, be working with Michele who is one of the best, most creative, and most “constructively disruptive”minds in American law, as well as being just a wonderful human being! I learn something new every time I speak with her!
Michele’s goal for VIISTA is to get 10,000 more trained accredited representatives out there representing asylum seekers in 10 years (or fewer). Let’s help her get there!
Claudia R. Cubas, Litigation Director at CAIR writes: “Judge Tigar at the Northern District California Court issued a Preliminary Injunction in the East Bay II case enjoining the final transit ban rule nationwide from being applied to asylum cases at both the immigration court and by USCIS. This Final rule was issued on Dec. 17, 2020, and took effect on Jan 19, 2021. While the interim rule had previously been vacated in the case CAIR Coalition v. Trump, 471 F.Supp.3d 25 (D.D.C. 2020), and ruled unlawful in the East Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020) case, the government issued the final version of the rule last minute in December. The ACLU and other organizations in the East Bay case, amended their original challenge and requested a new PI to enjoin this final version of the rule. Thanks to the ACLU, and other orgs in the East Bay case!”
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Thanks, Claudia!
Yet another Trump regime lawless and contemptuous action to destroy our asylum system and interfere with the transition of power to the Biden Administration “outed.”
Prof. Geoffrey Hoffman, Nov. 24, 2015 – “It is important, I think, to note the import but also the paradox behind the BIA’s latest precedent decision, Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) that admonishes IJ’s not to bully minors. In the decision, the Board discusses conduct by an Immigration Judge that can be construed as “bullying or hostile” behavior and says it is “never appropriate,” particularly in cases involving “minor respondents,” concluding such behavior may result in remand to a different Immigration Judge. I am glad that the Board is finally taking to task this kind of egregious IJ behavior. On the one hand, we should applaud the Board for pointing out this behavior and finally holding it up to the light of day in an important new precedent decision. On the other hand, it is a sad commentary on the behavior of some judges that the appellate body of the EOIR has to even say this publicly. Of course judges should not behave this way, and the fact that recusal is mandated by the BIA in such situations is something to congratulate the Board for now getting behind. But, one wonders whether this response is at all sufficient. Whether, as an IJ, I can now say, “Well, the worst that will happen is that I will have the case taken away from me on remand, and therefore I do not have to deal with this mess anymore.” It doesn’t seem like much of a deterrent.
In a case which I handled on appeal, the IJ denied the respondent’s attorney the opportunity to call a psychologist to testify about the respondent’s mental condition and disease (bipolar disorder), a fact which went directly to the particular social group and seemed particularly relevant to me. When the attorney respectfully requested permission to put on the expert witness, and specially whether the witness could testify about any medications the respondent had taken or was taking the IJ in response asked the attorney whether she was on any medications. Was she on any medications? I read and re-read that line again and again as I prepared the appeal thinking perhaps I had missed the joke. But this wasn’t a joke. It was simply intemperate behavior by an IJ. Thankfully, the BIA correctly and compassionately remanded the case but based on the bipolar condition, recognizing that it could form a valid PSG. No mention was made of the issue of judicial impropriety I had raised in the brief. In other appeals I have done before the Board, I have noticed that when raising issues with the Board about IJ’s missing evidence or even misconstruing the factual background, the Board does not seem to deal with these issues head-on but instead bases their decisions on some other ground, preferring to adjudicate the appeal on a legal ground rather than on the basis of judicial misconduct or judicial mistake. And there is nothing surprising here, with the Board insulating IJ’s from admonishment and not highlighting their misunderstandings of the record, but there is I think a cost which has been underreported or perhaps not even appreciated. The cost is that IJs become used to behaving in a way that can be described as intemperate at best and demeaning or demoralizing and abusive, at worst.
This said, I do have a lot of sympathy for many IJs, having worked very hard myself for a federal judge for two years after law school, and seeing and appreciating the incredible stress and responsibilities of being a judge. The IJs, it should be mentioned, have it worse: they have to juggle a case load of hundreds and hundreds of cases, while at the same time maintaining compassion and composure at all times, and at the same time providing a clear, cogent and correct legal analysis in all cases and contexts. However, and this needs to be said, I think some IJs should not be IJs and should not have been selected to be IJs. If we want to make the immigration court system work we need to do a better job in vetting these judges, choosing based on temperament and suitability to deal with the rigors of handling all these cases with compassion and professionalism.
This is the time now (at this very moment) to make this statement as loudly and boldly as possible, since EOIR right now is advertising for 50+ new judgeships across the country. Since we have approximately 250+ judges, this represents an approximate 20 percent increase. I implore EOIR to make these decisions with due regard to how the judges might act in future, not just whether they have experience deporting people, working for the government in other capacities, or experiences such as being in the military. While those are factors, let’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”
Unfortunately, the Obama Administration ignored Geoffrey’s plea. Instead of creating a well-qualified, independent, progressive judiciary that could achieve the “EOIR Vision” of: “Through teamwork and innovation becoming the world’s best tribunals, guaranteeing fairness and due process for all,” the Obama Administration handed out immigration judgeships like they were service awards for DHS prosecutors, DOJ attorneys, and other government lawyers.
The Obama selections appeared designed primarily to avoid appointing anyone who might have the background, backbone, and courage to “rock the boat” and stand up for immigrants’ rights even when it meant rejecting ill-advised and legally questionable Administration enforcement policies and procedures. In other words, truly independent judging and thinking was discouraged in favor of a “go along to get along” atmosphere mischaracterized as “collegiality.”
Sure, collegiality has its benefits. But, in the end, independent judging is about justice for the individuals coming before the courts, not about institutional survival, job preservation, making friends, achieving bureaucratic performance goals, or pleasing political “handlers” who don’t want to read about their “subordinates” in the “funny papers.” When I was ousted from the BIA as part of the so-called “Ashcroft purge,” I noticed that those those judges who were “collegial” but outspoken about immigrants’ legal rights got punished right along with those who were perceived as “less collegial” in standing up for the same rights.
Moreover, the Obama folks designed an unwieldy and astoundingly inefficient “Rube Goldberg selection system” that took more than two years to fill an average IJ vacancy — much longer than the Senate confirmation process! This was at a time when backlogs were building and the NAIJ and the “line IJs” were begging “EOIR management” for help. “Management” could have achieved comparable results simply by throwing darts at a board containing the names of government attorneys. And, it would have cut the red tape.
Inept as the Obama Administration might have been, the Trump kakistocracy of course proved to be our worst nightmare. They “weaponized” the EOIR immigration judiciary into a tool of White Nationalist nativist enforcement, racial injustice, and misogyny. Here are some of the things Sessions and Barr did at the behest of Stephen Miller:
“Packed” the BIA with judges known as “asylum deniers” — some with denial rates in excess of 90%;
Appointed IJs from the Atlanta Immigration Court, which had generated Matter of Y-S-L-C-, to the BIA in an overt attempt to replicate the “Asylum Free Zone” as Atlanta was known throughout the private bar;
“Rewarded” with BIA appointments several judges who had complaints lodged against them for their rude and unprofessional in-court behavior, open hostility to asylum seekers (particularly women), and unprofessional treatment of private attorneys;
Issued bogus EOIR and BIA precedents, some on their “own motion,” that were almost 100% against respondents and in favor of DHS Enforcement while undoing long-standing rules that had promoted fairness to asylum seekers and sound docket management;
Appointed almost all government/prosecutorial background Immigration Judges, many without immigration qualifications, others associated with anti-immigrant or anti-gay groups;
“Decertified” the National Association of Immigration Judges (“NAIJ”) as punishment for speaking out against gross mismanagement at EOIR and DOJ;
Imposed due-process-denying unprofessional “production quotas” on IJs intended to increase deportation rates;
Deprived IJs of effective management control over their dockets, while engaging in endless “Aimless Docket Reshuffling;”
Unethically exhorted IJs to treat the DHS as their “partners” in enforcing immigration laws;
Gave the Director — essentially a political appointee disguised as a career executive — authority to interfere with BIA decision making in certain cases;
Basically reduced Immigration Judges to the status of “deportation clerks” while falsely claiming that they were “management officials” to “bust” the union;
“Dumbed down” immigration judge training;
Artificially “jacked up” the Immigration Court backlog to an astounding 1.3 million cases — even with twice the number of IJs on the bench.
As one of my esteemed Round Table colleagues said, “since [Geoffrey’s article] was written, record numbers of good IJs resigned over the past 4 years, many good candidates wouldn’t apply (or if they did, likely weren’t chosen) over the past 4 years, and then just the general drop in quality that comes with that degree of expansion [in the absence of competent planning].”
The lack of compassion, glaring disregard for the protective purposes of refugee law, and absence of human understanding as to what it means to be a refugee seeking salvation simply screams out from the last four years of perverse AG and BIA precedents as well as from some of the elementary mistakes made by EOIR judges at all levels in the numerous cases reversed by Courts of Appeals over the past four years.
And, this is just the “tip of the iceberg.” Many seeking protection are denied any hearings at all, railroaded out without understanding what’s happening, or simply give up without appealing wrong decisions and denials of due process — worn down by the abusive and unnecessary detention that EOIR helps promote and the intentionally “user unfriendly” procedures developed to discourage individuals from asserting their legal and human rights.
While the broken and reeling Department of Justice presents many challenges, I predict that Judge Garland’s tenure will be remembered largely by how he deals, or doesn’t deal, with the total disaster in the U.S. Immigration Courts. The Trump regime’s attack on democracy and people of color began with immigration, and the effort to dehumanize and degrade migrants continued until the final day.
Will Judge Garland leave behind a reformed, progressive, due-process-oriented system that is a model judiciary? One that finally fulfills the vision of — “Through Teamwork and innovation action becoming the world’s best tribunals, guaranteeing fairness and due process for all?” A court that can easily transition out of the DOJ intro an independent Article I Judiciary? Or will he leave behind another disgraceful mess and the dead bodies, broken dreams, and visible betrayals of American values to prove it?
Only time will tell! But, the NDPA will be watching. And, there isn’t much patience out here for more of the “EOIR Clown Show!”🤡🦹🏿♂️
🇺🇸🗽⚖️Due Process Forever! Better judges 🧑🏽⚖️👩⚖️👨🏻⚖️ for a better America. And that starts (but doesn’t end) with the U.S. Immigration Courts!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber StyleKate Voigt Senior Associate Director of Government Relations AILA PHOTO: AILA
In just four years, President Trump implemented radical changes that fundamentally compromised the integrity of the immigration courts. This policy brief explains the most critical and urgent changes President Biden should make to the immigration court system to ensure fairness and impartiality.
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Download the complete policy brief at the link.
Thanks, Kate!
Great report!
I hope you have arranged to have a copy of this delivered to Judge Garland, Vanita Gupta, and Lisa Monaco. As you know better than anyone, every day the current BIA remains empowered to grossly distort and intentionally misapply the law and dish out injustice is another day of outrageous abuse for migrants and psychological harm inflicted on their representatives.
It is also essential that the folks in MPP and others applying at our borders are represented and judged according to a properly fair and generous interpretation of our asylum laws (as you point out, no more “99% denial club” assigned to Central American cases). Along with bogus “no show” rates, artificially inflated asylum denial rates have been used as key parts of the false narrative to smear and dehumanize asylum applicants at our Southern Border.
🇺🇸⚖️🗽🧑🏽⚖️👨🏻⚖️👩⚖️Due Process Forever!
Thanks again for all you and your colleagues do, and best wishes,
Supremes Sign Death Warrants For Vulnerable Refugees, Trash Refugee Act of 1980Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseA girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
by Adolfo Flores and Hamed Aleaziz in BuzzFeed News:
After days of confusion about changes along the southern border, the Biden administration on Wednesday said immigrants should not try to enter the US because most will still be turned away under a Trump-era policy that has recently come under legal scrutiny.
. . . .
Confusion about who was being allowed into the US in recent days forced the administration to issue a stronger warning. Last week, reports of some families being allowed into the US after being apprehended at the border resulted in speculation that immigrants would no longer be immediately expelled and instead be allowed to fight their immigration cases from within the United States. In the Rio Grande Valley in South Texas, immigration advocates have reported seeing about 100 people a day released by Customs and Border Protection. In other parts of Texas, shelters have also seen increasing numbers of immigrant families, but it is not clear why.
Attorneys and advocates who work with immigrants along the border have been bombarded with phone calls and texts about whether they should try their luck at getting into the US. Erika Pinheiro, policy and litigation director with the immigrant advocacy group Al Otro Lado, said it was “incredibly disappointing” that the Biden administration has continued to expel immigrants under the CDC order.
“We know now that the CDC order prohibiting asylum processing at the border did not arise from public health concerns but rather was part of Stephen Miller’s efforts to dismantle the US asylum system and was implemented despite opposition from CDC leadership,” Pinheiro said, referring to one of Trump’s former senior advisers. “US expulsions of asylum-seekers, including infants, constitute plain violations of domestic and international laws meant to protect vulnerable refugees. CBP absolutely has the resources to process asylum-seekers in a safe and humane way.”
The turnbacks, known as expulsions, are legally different from deportations, which would mean an immigrant had actually undergone the immigration process and found to not be legally allowed to stay in the US. Critics say the government is using the public health orders as an excuse to turn back immigrants at the border.
. . . .
“While we recognize that the Biden administration has been saddled with a lot of bad policy and structural problems, it cannot continue the Trump administration practice of turning away people in danger based on illegal policies, such as the notorious and pretextual Title 42 policy,” said Lee Gelernt, an attorney with the ACLU.
. . . .
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Read the full article at the link.
“Go suffer and die somewhere else, out of our sight,” might not be the best message for an Administration trying to re-establish its human rights and humanitarian leadership and credentials.Ever hear of the “St. Louis Incident?” It’s always easy to find a way to “just say no” to refugees — and the consequences are seldom pretty.
Those who won’t learn from history are destined to repeat it. Refugee and forced migration situations happen in the “here and now;” they can’t be “back burnered” — no matter how much policy officials might wish otherwise. In a forced migration situation, “doing nothing” is an action that produces consequences for both the forced migrant and those who ignore their plight.
There are many daily potentially deadly and dehumanizing consequences of continuing to ignore asylum laws and Constitutional due process for asylum seekers at our Southern Border.
One predictable one: Instead of turning themselves in at the border or to the Border Patrol shortly after entry, as had been happening until Miller & co. intervened, those seeking refuge apparently have gotten the message that our legal system is and remains a sham for them. Consequently, increasingly they are simply evading the Border Patrol and disappearing into the interior with no screening whatsoever — health, legal, or background. Also, by intentionally driving people out of the legal system, the Administration is totally blowing a chance to harness and build upon one of the most powerful known facts — represented individuals with asylum hearings scheduled show up for their hearings!
According to an article in today’s Washington Post, the estimated number of so-called “get always” — actually human beings seeking refuge — hit 1,000 on Sunday.
Sure, there are many aspects of this problem. But, it has been “out there” for nearly a year!
Sure seems to me that with the right experts in charge, including folks like Lee Gelernt and Erika Pinhero, this issue could and should have been addressed more constructively and with much more urgency by the Biden Administration by now. Why not harness the expertise and proven problem solving abilities of folks like Lee, Erika, and many other members of the New Due Process Army rather than fighting with and resisting them?
Instead, it looks like time and resources will continue to be wasted on forcing policy changes through litigation. Meanwhile, vulnerable asylum seekers and their families will continue to suffer as illustrated by this recent article from HuffPost about the human consequences for those caught up in the Government’s scofflaw border policies.
NOTE TO PRESIDENTIAL PRESS SECRETARY JEN PSAKI: Sorry, Jen, but those fleeing for their lives don’t generally respond well to “don’t come right now, we don’t want you” messages, particularly from folks who have never been in that situation themselves. It’s actually pretty insulting to think that folks fleeing to the U.S. 1) aren’t smart enough to know the dangers involved; 2) don’t realize that the the U.S. Government doesn’t want them; and/or 3) have choices about their travel as Jen and her buddies might have when planning a summer vacation.
As one of my esteemed colleagues once told me: “Desperate people do desperate things.” What about people who keep repeating the same policy mistakes over and over while expecting different results and failing to grasp either the absolute urgency or the human side of forced migration issues? It’s sort of like going to the emergency room with a burst appendix and being told, “Why don’t you just sit in the waiting room until we doctors figure out what to do? Get back to you later!”
Somewhere out there, Stephen Miller must be gloating about how he totally outsmarted and outflanked the Biden Team!
🇺🇸⚖️🗽Due Process Forever! Oh, when will they ever learn, when will they learn?
PWS
02-11-21
UPDATE: THE CONTINUING REAL TRAUMA CAUSED BY THE “REMAIN IN MEXICO PROGRAM” (A/K/A “LET ‘EM DIE IN MEXICO”) WHILE THE BIDEN ADMINISTRATION “STUDIES” THEIR NEXT MOVE:
Emily Green writes in Vice, as reposted in ImmigrationProf Blog:
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“Diaz de Gomez claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang’s extortion and other demands. … [W]e reject the Board’s “excessively narrow” view of the nexus requirement, and conclude that Diaz de Gomez established that her familial ties were one central reason for her persecution. … We also hold that the record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s claims in light of our holdings.”
So, let’s compare the 4th Circuit’s view with the most recent abomination and intentional misconstruction of the “unable or unwilling to control” doctrine by totally unqualified political hack Jeffrey Rosen, then impersonating the “Acting Attorney General” and issuing clearly unconstitutional “precedents” to implement the defeated regime’s racially biased, misogynistic, anti-asylum agenda.
Talk about “crimes against humanity!” ☠️🏴☠️ Certainly, every current civil servant who supported and advanced this bogus designation should be held accountable.
Kakistocracy Kills: Obviously, with better qualified judges, competent representation, and a fair system operated in accordance with due process and a proper interpretation of asylum laws, many of those now being arbitrarily, capriciously, and unlawfully turned back at our borders would be entitled to our legal protection. This is life or death, not a problem that can “wait till tomorrow” to be addressed! Every day that the patently inadequate “judges” currently on the BIA remain in their positions means more injustice, trauma, and even death for legitimate asylum seekers!
From Justice Elena Kagan’s dissent in South Bay United Pentecostal Church v. Newsom:
I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.
Justice Elena Kagan Photo: Mike Ball Creative Commons License
Ruth Marcus writes about U.S. District Judge Ketanji Brown Jackson in WashPost:
. . . .
Still, Jackson, named to the district court by Obama in 2013, brings to the bench an intriguing — and for the Democratic Party’s restless progressives, attractive — piece of career diversity as well: experience as a public defender.
No current Supreme Court justice has the perspective of having been a public defender, representing indigent defendants, although several — Justices Samuel A. Alito Jr., Sonia Sotomayor and Brett M. Kavanaugh, in his role as associate independent counsel — have prosecutorial experience.
For Jackson, the daughter of two public school teachers (her father later became a lawyer), the criminal justice system has an unusually personal wrinkle as well: Her uncle was convicted of a low-level drug crime when she was a senior in high school, and was sentenced to life in prison under a draconian three-strikes law. (He had been convicted previously of two minor offenses.) He ended up receiving clemency from Obama after serving three decades.
She also brings the real-world perspective of a working mother. In a remarkably candid speech at the University of Georgia in 2017, Jackson described the challenges she encountered juggling private practice at a major law firm, marriage to a surgeon and motherhood to two young daughters.
“I think it is not possible to overstate the degree of difficulty that many young women, and especially new mothers, face in the law firm context,” she observed. “The hours are long; the workflow is unpredictable; you have little control over your time and schedule; and you start to feel as though the demands of the billable hour are constantly in conflict with the needs of your children and your family responsibilities.” How refreshing to hear from a self-confessed non-Superwoman.
. . . .
But a more obscure ruling, involving William Pierce, a deaf D.C. man who was imprisoned for 51 days after a domestic dispute, may offer more insight into Jackson’s belief in law as a mechanism for achieving justice. Corrections officials did nothing to accommodate Pierce’s disability, as the law requires, ignoring his repeated requests for a sign-language interpreter.
Jackson assailed prison officials’ “willful blindness regarding Pierce’s need for accommodation.” She said it was “astonishing” for D.C. to claim that it had done enough, when “prison employees took no steps whatsoever” to figure out how to help him. And she took the unusual step of ruling for Pierce even before trial.
You can learn a lot about a judge by the way she handles the biggest-profile cases, involving those at the highest levels of government. But perhaps the more revealing test is how she applies the law to help those with the least power and the greatest need for justice.
U.S. District Judge Ketanji Brown Jackson Washington D.C. Official Photo Creative Commons License
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Read the full articles at the above links. “Willful blindness” and intentional abuses intended to “dehumanize” are daily occurrences in our warped and broken “immigration justice system” as almost any immigration/human rights/civil rights lawyer could tell you. It just operates below the radar screen, on the border, or in foreign countries (to which vulnerable humans seeking legal refuge are arbitrarily and capriciously “orbited”) where the very human trauma, torture, sickness, desolation, despair, and death are “out of sight, out of mind” to most Federal Judges and Justices.
Yes, eventually journalists and historians will document for posterity the disastrous human rights abuses in which the Federal Judiciary is complicit. But, by then it will be far too late for those who have suffered and died while those in black robes shirked their legal and moral duties!
Judge Jackson understands exactly what’s missing from today’s all too often elitist, non-diverse, non-representative Federal Judiciary (including much of the Immigration Judiciary) who are tone-deaf to, and insulated from, responsibility for the human trauma and injustice caused by their bad decisions.
Additionally, I can assure Justice Kagan that vulnerable refugees and asylum seekers (including children) have died and unnecessarily suffered lifetime trauma from the Supremes’ willful failure to enforce the Constitution against overt Executive tyranny in cases involving the “Remain in Mexico” (“Let ‘Em Die In Mexico”) Program, return of asylum seekers to torture and death with no due process whatsoever, and the “Muslim Ban.”
Indeed, the Supremes’ majority’s abdication of responsibility in the latter case led directly to Trump’s eventual insurrection against the Capitol. He was assured early on by Roberts and others that he was above the Constitution, uncountable, and exempt from normal conventions governing human decency and treatment of the most vulnerable among us in the 21st Century. I/O/W, “Dred Scottification” of the “other”— a 21st Century “Jim Crow Regime” — was A-OK with the GOP Supremes’ majority “forever insulat[ed] . . . from responsibility for [their] errors.”
Today in particular, our nation still struggles with the sense of impunity and unaccountability improperly conferred by a dilatory Supremes’ majority on their party and its leader. Insurrection, violence, attempted overthrow of democracy — it’s all “no problem” to a tone-deaf Supremes’ majority unconcerned with the fate of our democracy.
After all, the Trump’s magamoron rioters weren’t storming their marble halls — just those of the supposedly co-equal branch across the street. But, what might have happened if they had actually stood up against Trump? He might have identified them as “the enemy” and sent his rioters their way! Worth thinking about, Oh Cloistered Ones far removed from the pain and suffering you help cause and countenance!
A better judiciary 🧑🏽⚖️👨🏻⚖️👩⚖️ for a better America! Bring on the “practical scholars” and those with actual experience representing the mostly vulnerable among us (asylum seekers are a prime example) in court.
A finding of ‘probation before judgment’ should never lead to deportation | COMMENTARY
By JOHN F. GOSSART JR.
FOR THE BALTIMORE SUN |
FEB 05, 2021 AT 5:31 AM
“May God forgive you, because I cannot.”
These words were written to me in a letter while I was a United States immigration judge at the Baltimore Immigration Court, where I presided for 31 years. The letter was written by the wife of a man I had ordered deported. In so doing, I had permanently separated a father and husband from his wife and children. These words will stay with me for the rest of my life.
Michelle Jones’ husband, Daryl, was charged with a minor offense in Maryland. Like many first-time offenders and individuals charged with minor violations, he was given probation before judgment (PBJ). This meant that Daryl, a lawful permanent resident of the United States was not convicted under Maryland state law. For United States citizens, a Maryland PBJ poses no further consequences unless they violate the terms of their probation. But for non-citizens like Daryl, the legal consequences can be far more dire.
Although a PBJ is not considered a conviction under state law, it is considered a conviction under federal law and therefore triggers immigration consequences, such as detention and deportation. I have witnessed countless non-citizens be ordered deported as a result of a PBJ and the devastation to their families that follows. I myself have ordered the deportation of hundreds of Maryland residents like Daryl because of a PBJ. It didn’t matter that these individuals had been deemed worthy of a second chance and not convicted under Maryland law. Their PBJs condemned them to the gravest punishment — deportation under federal immigration law — leaving me with no judicial discretion. My hands were tied by the law.
The Maryland General Assembly has the opportunity, and the responsibility, to correct this unjust system by amending the PBJ statute. That is why I am asking the Maryland General Assembly to pass legislation (House Bill 354/Senate Bill 527) that would make probation before judgment accessible to all Maryland residents, regardless of citizenship status. The amendment would merely change the process by which a PBJ is entered; the impact of a PBJ would remain unchanged.
This bill ensures that the consequences of PBJs are the same for citizens and non-citizens alike, narrowing the disparities in our criminal justice and immigration systems, which disproportionately affect people of color. And for someone like Daryl, it would have been the difference between deportation and staying in the country to be with his family and watch his kids grow up.
. . . .
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Read the full op-ed at the link.
All of us who have served on the immigration bench have had cases like Daryl’s where the result is unjust and there is no sensible explanation for what we were forced to do.
The time for rationalizing and humanizing our immigration laws is here. As my long-time friend and colleague (we were “present at the beginning” of EOIR) John says, we must seize and act on every opportunity to make due process and equal justice under law a reality for all persons in America!
Thanks, my friend and colleague!
Historical trivia: I made one of my rare Immigration Court appearances before Judge Gossart in a pro bono case when I was at Frogomen DC. It was an asylum case, and we won at the preheating conference! I do remember that Judge Gossart was pretty peeved at me because I refused to concede removability, asserting my client’s right to be in and remain in the U.S. as a refugee/asylee. He “ripped me” on that issue, but we won on everything else. The INS Attorney didn’t contest it, as I remember.
One of my other pro bono appearances was before my friend and Round Table colleague Judge Joan Churchill in Arlington. Won that one too — recollect it was a withholding of removal case, also resolved through pretrial agreement with the INS Attorney at the suggestion of Judge Churchill.
Didn’t get to show off my “litigation skills” in either case. Probably just as well. A “W” is a “W,” and a life saved is a life saved!
Vanita Gupta Nominee for Associate AG Photo: Brookings Institution, Paul Morigi, Creative Commons LicenseKristin Clarke Nominee for Assistant AG, Civil Rights Photo: NAACP, Creative Commons License
Meet the courageous, dynamic , outspoken, new human-rights-oriented leaders looking to fulfill the Constitution and make “equal justice for all” a reality @ the DOJ and for America.Sam Levine reports for The Guardian.
On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.
Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the last four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).
Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.
Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.
Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.
“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”
Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.
“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”
. . . .
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Read the rest of these inspiring American profiles 🇺🇸🌟at the link. Don’t you think we need the “Vanita & Kristen” of immigration and human rights to lead the restoration effort at EOIR and the BIA?
Here are the “keys to success:”
Immigrants’ rights are human rights;
Human rights are civil rights;
There can be neither racial justice nor equal justice in America until migrants are not only fully recognized as “persons” under our Constitution, but actually treated as such (as opposed to the active “dehumanization” and “Dred Scottification” of migrants and persons of color by the Trump regime and the GOP majority on the Roberts’ Court);
You can’t possibly “win the game” with the same players who “batted for the White Nationalists” over the past four years.
And, speaking of “Jewel in the Crown.”👑 That’s exactly how many of us in the “Round Table of Former Immigration Judges” 🛡⚔️ once viewed EOIR. The “EOIR Vision” was: “Through teamwork and innovation be the worlds’s best tribunals, guaranteeing fairness and due process for all.”
So, Vanita, and I hope Kristen also, can imagine the anger and determination to fight with which our Round Table viewed the dismemberment of due process and weaponization of the Immigration Courts under Sessions, Whitaker, and Barr. From aspiring to be the “world’s best tribunals” to “Star Chambers” and a grotesque, dysfunctional national disgrace!
On the plus side: Both Gupta and Clarke are the daughters of immigrants. Both have written and advocated for immigrants’ rights as part of their civil rights leadership.
Caution. Obama Attorneys General Eric Holder and Loretta Lynch were “facially aggressive” on protecting voting rights and police reforms. Yet, at the same time they: helped DHS set deportation records; allowed EOIR to spiral toward dysfunction (to a large extent through failure to procure and properly manage resources and an indolent judicial hiring program that was both “closed and non-diverse in nature” and glacial in operation (2 years to fill an average judicial vacancy!)); supported “baby jails,” the “family gulag,” and toddlers representing themselves on asylum cases in Immigration Court; looked the other way as private prisons treated asylum seekers and migrants worse than convicted criminals; and “went along to get along” with the Administration’s misuse of the Immigration Courts as (a highly ineffective) deterrent to applications for asylum.
Sessions, Whitaker, and Barr might have been the “Kings of Aimless Docket Reshuffling” at EOIR that helped produce an astounding 1.3 million case plus “backlog.” But, it started in earnest under the Obama Administration.
That’s what I mean by the “two headed policy:” arguing for voting rights for minorities in one courtroom while simultaneously ignoring the human and civil rights of migrants in the next courtroom. Arguing for the right to vote in one case, while arguing (apparently with a straight face) that toddlers who can’t speak English have no right to legal representation in the next case.
Not only that, but with the Biden Administration apparently looking to rapidly fill upcoming Article III vacancies, the Obama DOJ’s mishandling of the Immigration Courts has deprived President Biden of the chance to draw from a diverse group of younger, progressive Immigration Judges whose practical scholarship, commitment to human rights and due process, courage, and proven ability to function in a “high stress” judicial setting would make them strong candidates for the now-reeling Article III Judiciary.
That’s certainly not to say that there aren’t some potential progressive candidates for the Article III Judiciary among today’s present, and particularly recently “retired,” (some essentially “forced out” at relatively young ages as a “matter of conscience”) Immigration Judges. There are! But, only a fraction of the number there would have been if the Obama Administration had taken the Immigration Courts with proper seriousness.
And, that’s leaving aside the lives that could have been saved and better jurisprudence that could have been “institutionalized” with better, merit-based, judicial selections at EOIR during the Obama Administration!
I sincerely hope that Vanita Gupta and Kristen Clarke can help Judge Garland get the job done at Justice. The “human rights/immigration world” will be cheering for you. Getting some of the folks from the New Due Process Army(“NDPA”) into key positions at EOIR and the rest of the DOJ will be an “early signal” of whether or not “Team Garland gets it.”
Removing McHenry at EOIR was a good start! But, it’s only a small step in what has to be done to make racial justice and immigrant justice a reality at the DOJ. The “brooms and plungers” 🧹🚽 need to come out, and the sweeping and plunging has to be quick and widespread.
On the other hand, there is “no patience for another Obama Administration” out here in the real world. Every day, EOIR and DOJ are killing folks, ruining lives, and abusing the brave and dedicated attorneys of the NDPA! If the rhetoric doesn’t produce short term results and drastic improvements, you can expect the same type of aggressive litigation from the NDPA that stopped the defeated regime from completely destroying the U.S. justice system.
On Jan. 21, minibuses of contractors in hi-viz vests were still bumping along the dirt road they had built for themselves in the high desert village of Campo, California, an hour east of San Diego. Less than 24 hours before, the newly inaugurated President Joe Biden had signed an executive order declaring that “the national emergency declared by Proclamation 9844 … is terminated and that the authorities invoked in that proclamation will no longer be used to construct a wall at the southern border.”
The Trump administration’s border wall project arrived in Campo in early 2020. The area is rugged and rolling, studded with oak trees and sagebrush. It couldn’t be more different from the bustling beaches and boardwalks most people associate with San Diego.
Into this landscape came contractors who were working with dynamite and heavy machinery 24 hours a day, with funding from both the Department of Homeland Security and the Department of Defense. The latter money came through the executive order rescinded by Biden, in which Trump had claimed an emergency that even he admitted was not necessary. In 2020, the emergency spending accounted for $676 million in San Diego and El Centro counties.
The borderlands in eastern San Diego County, like every inch of the United States, are the ancestral homelands of Indigenous people. San Diego County has the highest number of reservations in the country, and the Kumeyaay people lived on this land long before the border came. Over the past year, they have been fighting a 30-foot steel wall that tears through the fragile high desert and divides Kumeyaay living north of the wall from their relatives to the south.
From a vantage point on top of a peak in eastern San Diego County, the wall stretches out as a physical manifestation of the brutality and ugliness of Donald Trump’s vision of American greatness. Sagebrush bushes, which survive in a region that can kill you with heat in the summer and cold in the winter, are held back by a rusty barbed wire fence next to a double-wide dirt road which runs alongside the towering steel spine of the wall proper. The wall stands on a deep concrete foundation, backed by the empty brownness of the roadway. No effort has been made aesthetically or ecologically to make this wall belong here. It’s as if the land, plants, and animals have drawn back in revulsion at the intrusion. On the other side of the newly created dead zone, bushes and plants grow right up to the border.
. . . .
Border Patrol agents drive around the area in expensive trucks, on an expensive road, next to a barrier that cost billions of dollars, all to keep the poorest people on the planet from asking us for help. In 2018, I spent time volunteering with a migrant caravan that had arrived in Tijuana and watched U.S. Department of Homeland Security employees launch tear gas over this wall at kids who couldn’t afford shoes.
Passages for the wall have been blasted out of the fragile landscape of California’s desert, causing drainage problems, disrupting migration pathways for the area’s wildlife, and leaving huge piles of rubble. Further east, there are half-finished roads that lead to nowhere, designed to allow contractors to deploy huge machinery against the defenseless landscape. They’re now just even-more-obvious illustrations of the ridiculous nature of the whole project.
Even before the roads run out, there are gaps in the wall. Construction stepped up in the months before the election to allow for Trump to make ever more ridiculous claims about miles of wall built, sometimes this meant harder-to-build areas were skipped or two crews worked on a wall that didn’t quite meet in the middle. It would be funny if it weren’t so ugly and pointless.
. . . .
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Read the complete article at the link.
The unfinished wall is also a monument to:
The failure of the Supremes to stand up for democracy and the rule of law in the face of tyranny “supported” by blatantly bogus “pretexts;” and
The failure of our national values.
With respect to the latter, there is nothing that will bring the world’s greatest and richest “superpower” to its knees more quickly than a ragtag band of desperate unarmed humans yearning to breathe free 🗽and seeking legal protection ⚖️🧑🏽⚖️under our system! How dare they assert their legal rights and their humanity!
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David MaungMolly O’Toole Immigration Reporter LA Times Source: LA Times website
Tuesday’s directives mandate a review, but do not end, the Remain in Mexico policy, which Biden had said he would rescind on his first day in office. Officially termed the Migrant Protection Protocols, or MPP, it has forced roughly 70,000 asylum seekers back to Mexico to wait in some of the world’s most dangerous cities for immigration court hearings in the U.S. that have been largely suspended since the Trump administration effectively closed the border last March, citing COVID-19.
Human Rights First has recorded at least 1,134 public reports of murder, torture, rape and kidnapping against asylum seekers returned to Mexico under MPP. Thousands have given up.
On Jan. 20, the Homeland Security Department announced that no new asylum seekers would be subjected to MPP, telling some 30,000 migrants left in limbo at the border by Trump that they should “remain where they are, pending further official information from government officials.”
Tuesday’s directives, as described by the officials, provide little additional clarity as to how the Biden administration will process those already subjected to MPP, along with thousands of others waiting.
Ensuring that MPP and other cases are processed “humanely” while safeguarding public health amid a pandemic is “fairly complicated,” one senior official said.
“I can’t tell you exactly how long it will take to have an alternative to that policy,” the other senior official said. Those under MPP will “certainly be taken into account because of the length of time they’ve waited and the conditions they are waiting in.”
On Monday, the administration effectively dropped appeals by the Trump administration in lawsuits against MPP and the diversion of billions in federal funds for border barrier construction. The acting Homeland Security head asked the Supreme Court to remove both cases, scheduled for oral arguments later this month, from its docket.
The Biden administration has not yet said what it will do with the effective closure of the border by the Trump administration under Title 42, which Tuesday’s directives do not address. The officials Monday cited ongoing litigation over the policy for the lack of action.
Under Title 42, Trump officials rapidly expelled hundreds of thousands of migrants, including asylum seekers and unaccompanied children, without due process. Whistleblowers at the Centers for Disease Control and Prevention said the Trump White House pushed the order for political, not public health, reasons.
On Tuesday, Biden also will take steps to restore Obama-era pathways allowing vulnerable groups in Central American to apply for admission to the U.S. from within the region, officials said.
. . . .
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Read the rest of Molly’s detailed analysis of President Biden’s latest executive actions on immigration at the link.
Wonder how many more will be murdered, raped, tortured, kidnapped, robbed, extorted, get sick, or give up while their fate is being studied? Out of sight, (somewhat) out of mind. Just ask the Supremes’ majority! As long as the bodies aren’t on OUR doorsteps and we don’t have to listen to the moans, groans, and screams of the abused.
Five things that could be done immediately, without study:
Vacate all the anti-asylum precedents from the AG and the BIA since 2016;
Assign some Immigration Judges whose “TRAC Record” shows that they understand asylum law and aren’t afraid to grant protection to hear any scheduled MPP cases;
Replace the BIA (or at least create an “MPP Appeals Panel”) with judges who have demonstrated excellence and expertise in asylum law;
Do not go forward with any MPP case involving an unrepresented applicant;
Bar the issuance of “in absentia orders” in MPP cases.
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the opinion, with no discernible rationale for this unprincipled and irrational action:
Here’s the “death to children” ☠️⚰️ panel: Katsas, Rao, and Walker, Circuit Judges. As long as it’s not THEIR children . . . .
Bad things happen to countries that make child abuse an “official policy” and reward child abusers with lifetime judicial appointments!
The Biden Administration needs to move quickly to get a handle on what’s happening in their name at the border. Also, might want to take a look at the Government lawyers who defend the indefensible in Federal Court.
Better Judges For a Better America! No more child abusers on the Federal Bench!
🇺🇸⚖️🗽Due Process Forever! Child Abusing Circuit Judges🤮, Never!
“The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur’s petition for review and remand for further proceedings consistent with this opinion.”
[Hats off to Douglas Jalaie!]
1st Calls Out Violation Of Regs, Incredibly Stupid Denial Of Reopening For Approved U Visa Petition Beneficiary Waiting For “Number:”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (“IJ”) for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services (“USCIS”) for a U-1 nonimmigrant visa (“U visa”) pursuant to the Victims of Trafficking and Violence Protection Act (“VTVPA”), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement (“ICE”), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852- 54 (7th Cir. 2020).”
[Hats off to Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner, and Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae!]
3rd “Perplexed” By BIA’s Ignorance Of “Equitable Tolling,” Own Authority:
“Hey, guys, ever hear of something called “equitable tolling?” “Nah, is it spelled D-E-N-I-E-D?” “Equitable TROLLING,” I’ve heard of that?”https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Because Nkomo properly raised equitable tolling before the BIA, the BIA erred in failing to consider her request for equitable tolling on the merits. We remand for the Board to do so in the first instance.”
“The BIA’s suggestion that it does not have the authority to make decisions on equitable grounds is perplexing. The BIA has authority to equitably toll the deadline for motions to reopen the precise relief Nkomo sought.”
Demeaning rape victims! ☠️🤮👎🏻 So, what else is new @ EOIR? “Gonzo” Sessions 🦹🏿♂️ set the tone for anti-asylum, racially motivated misogyny in Matter of A-B- and “his judges” have taken it from there! (I repeat my oft-made observation: What kind of “due process” system lets a characters like Sessions, Whitaker, and Barr “own” judges? How would you like to be a woman on trial for her life before a “judge” selected, directed, and “owned” by the likes of these men with clear records of “applied contempt” for equal justice? Sessions, Whitaker, Barr, & Jeffrey Rosen are gone — but their legacy of bias and injustice lives on @ EOIR!)
One of my esteemed Round Table 🛡⚔️ colleagues summed up the latest set of outrageous miscarriages of justice from Falls Church:
All of these decisions demonstrate the degree of careful and detailed analysis that these cases require.And yet the BIA couldn’t keep staff attorneys after McHenry capped them at GS-13 (entry level), and keeps increasing the monthly quotas for BIA staff attorneys.Plus of course the Board Members themselves are now all these types who only review the decisions to make sure they end in the word “dismissed.”
If you were trying to create a recipe for disaster, you couldn’t have planned it better.
I heard the latter comment twice yesterday from immigration/human rights/due process experts on opposite sides of our country who observe and participate in the system at various levels.
To quote Justice Sotomayor’s recent dissent: “This is not justice.”
Historical Footnote:One of my first actions as BIA Chair in 1995 was to establish a “GS-15 Career Ladder” for all Attorney Advisors at the BIA. This made the BIA competitive with the rest of the DOJ.
It allowed us to attract and retain not only “top talent” coming from the “DOJ Honors Program” (how I got my first job at the BIA in 1973), but also outstanding career attorneys who wanted an opportunity to do research, writing, and “applied scholarship” that made a difference in individuals’ lives. Indeed, at various times the BIA has had on its staff former Senior Executives seeking a “change of focus” to a career that allowed them to do the things they liked best about the law.
One of them was a former SES colleague at the “Legacy INS” who found in transferring to a GS-15 BIA Attorney Advisor position a career satisfaction, fulfillment, and sense of meaningful contribution that person had been missing in INS management at that time.
Reducing the top grade for Attorney Advisors is not only professionally and personally demeaning, it also marks the entire organization as “second class” and shows just how stupid and incompetent (and, in recent history, overpaid) EOIR “management” has become! And, as pointed out in my colleague’s comments above, it has not only adversely affected careers but the human lives in the balance on the BIA’s docket.
As I understood my “mission” from then Attorney General Janet Reno in 1995, the BIA was supposed to be about “attracting the best and the brightest judges and supporting them with the best and brightest staff.” Essentially getting it to function like the “12th Circuit” was a description mentioned during my interview process for the Chair job.
Sadly, now, it has become an assembly line of expediency, injustice, shoddy legal work, mindless “corner cutting,” unprofessional behavior, and human misery.
To repeat my colleague’s comment: “If you were trying to create a recipe for disaster, you couldn’t have planned it better.”
All of these cases should have been resolved in the foreign national’s favor without ever getting to the Courts of Appeals! Bad judging, grossly incompetent administration, and lack of qualified, dynamic, judicial leadership from respected “practical scholars” costs lives, produces unacceptable and unfair inconsistencies, and clogs the Article III Courts with unnecessary litigation.
Indeed, the First Circuit’s decision in Granados basically reveals OIL’s “smorgasbord” of bogus arguments to uphold the BIA’s incorrect decision as “without merit” — actually frivolous! There are deep problems @ DOJ resulting from the ongoing corruption and disregard for ethics and professional leadership from the now-departed kakistocracy! They go far beyond the mess at EOIR!
Sure hope that Judge Garland, Vanita Gupta, and their incoming team @ DOJ have a comprehensive plan for replacing the BIA and reforming EOIR! The human beings suffering in this disgracefully inept and abusive “court system” and their courageous, long suffering attorneys are counting on you! Think of it this way: What if YOUR daughter were the rape victim demeaned, dehumanized, and denied justice by EOIR?
