"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.
On Title 42, the Supreme Court rules for a partisan agenda
COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.
By Erwin Chemerinsky
The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.
Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.
The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.
.. . .
In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.
Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.
On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.
The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.
. . . .
The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.
In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”
The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.
. . . .
The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.
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Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!
The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around!Likely not in my lifetime!
But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!
Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!
This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: FacebookSome righty judges get all the way to the Supremes while remaining indifferent to the wrongful suffering of humanity from their bad judging!y Photo by David R. Badger, Creative Commons
Time and again, the current Supreme Court has waded into what should be a political fight, using its broad power to effectively freeze or rewind the clock. In so doing, it has often locked in the worst possible outcome, then leveraged its busy and lengthy docket to unacceptably extend that outcome.
It did this with the Texas vigilante enforced abortion law, allowing a facially unconstitutional restriction to remain on the books and actively in place, effectively shutting down reproductive health services across the state. It did it again by staying lower federal court orders that had struck down unconstitutional racial gerrymanders in the South, permitting illegal maps to disenfranchise African American voters. That was at least four seats that should have been minority opportunity districts—enough to cost the Democrats the House majority. And on Tuesday, SCOTUS pulled this trick once more, this time leaving in place a draconian Trump-era pandemic immigration ban, broadly known as Title 42, that the Biden administration wanted gone and that a federal judge already had ordered lifted.
In so doing, the Court further revealed itself as precisely what it should not be: a political powerbroker and, as even conservative Justice Neil Gorsuch noted in dissent, a group of “policymakers of last resort.”
What’s the story behind Title 42, and how does this most recent ruling get things upside down? What will it mean for the thousands of desperate migrant families camped in dangerous conditions at the border? And what should we expect next from Congress and the White House? I explore these and some key takeaways from the decision.
. . . .
It is next-level hypocrisy that red state leaders, who during the pandemic eschewed all manner of basic preventative health measures at great cost to human life, should now champion a policy that cites the virus as the reason to expel millions of theoretical carriers. The idea that Mexico was somehow a greater vector for disease and infection than the red states of America is also both deeply cynical and plainly counterfactual.
From a policy standpoint, the notion that certain states can claim they would suffer special harm from the lifting of Title 42 and that this somehow gives them standing to stop the government in its tracks threatens to upend our entire federal system. In every policy decision by federal authorities there are winners and losers, from taxation to infrastructure spending to rules around land and water use. Immigration, and the states which allegedly are most affected by it, should receive no special dispensation or consideration. Giving these states a voice and standing in this instance sufficient to hamstring the government would be premised on nothing but the Court’s apparent political priorities, and not sound federal principles.
Finally, the crisis at the border truly requires a bipartisan political solution, but no comprehensive immigration reform bill has passed Congress since 1986. Today, the “problem” of immigration has become a useful political tool for Republicans around which to rally their base and with which to fundraise. Unsurprisingly then, they appear to have no real interest in actually trying to solve the problem through legislation. As Secretary Pete Buttigieg has observed, this will remain the case so long as the problem of immigration is more useful to them than the solution.
The upshot is, we likely will continue to see misery at our border and buses of migrants sent by governors Abbott of Texas and DeSantis of Florida dropped off in liberal bastions like Martha’s Vineyard or in front of Vice President’s Harris’s home in D.C. The Biden Administration will still continue to work quietly behind the scenes to lessen the impact of Title 42 and to argue in court for ending the policy. But whether SCOTUS will relinquish its de facto policymaking role to the proper branches of government remains unclear.
Jay Kuo is the CEO of The Social Edge, a digital publishing and social media company based in New York City. Jay is head of “Team Takei,” managing engagement with Star Trek legend George Takei’s 23 million Facebook, Instagram and Twitter followers. Jay is also the composer, lyricist and co-librettist for the Broadway musical Allegiance as well as the librettist on the Broadway-bound Indigo, the first musical to feature and star a teenage girl on the autism spectrum. Jay is also a two-time Tony-winning co-producer for the hit musical Hadestown and the critically acclaimed, epic play The Inheritance.
Apart from his Broadway and social media work, Jay is a published author, an avid political blogger, and a partner in Gaingels LLC, the nation’s largest private investment syndicate. While he worked as an attorney, Jay was an appellate litigator admitted to practice before the Ninth Circuit and U.S. Supreme Court.
Jay has served on the boards of the Northern California ACLU and the Bay Area Lawyers Individual Freedom, and he argued the first Ninth Circuit challenge to the military’s “Don’t Ask, Don’t Tell” policy. Jay currently serves on the national board of the Human Rights Campaign, the nation’s oldest and largest civil rights organization serving the LGBTQ+ community.
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Read Jay’s complete, very clear and understandable, analysis of the Title 42 charade at the link.
These ivory tower right wing zealots in robes exempt themselves from the human pain and suffering that their horrible judging causes. Judges are supposed to solve problems. This gang makes them worse!
Lets’ repeat it again: The idea that this “esoteric issue,” raised at the last second, by corrupt GOP AGs who aren’t even parties to this case, claiming largely phantom “harm” that pales in relation to the well-documented life-threatening harm suffered by legal asylum seekers every day, merits an indefinite stay that inflicts yet more unconscionable harm, even death, upon the most vulnerable among us, is as illegal as it is patently absurd.
That it was imposed by five judges on our highest Court, who are suppose to uphold our Constitution and individual rights against government overreach is something that should be of grave concern to all who believe in American democracy, particular future generations who will have to live with the shame and damage inflicted by these out of touch far-right jurists!
Better judges for a better America! Why should judges who have never participated in the “retail level of our justice system” — by representing individuals in our broken, biased, and dysfunctional Immigration Courts — be ensconced on our highest Court and given life or death power over persons they wrongfully treat as less than human and whose legal and human rights they so shamelessly deny?
The myths — or, rather, convenient lies — that some politicians keep circulating about the U.S.-Mexico border have resulted in another disappointing congressional session for immigration reform.
Instead of crafting much-needed solutions to address the fate of young immigrant “Dreamers,” the backlog of cases in immigration courts or any of the myriad problems caused by outdated immigration laws, policymakers spent most of their time wrangling over Title 42, a public health order invoked during the COVID-19 pandemic to manage border crossings.
Disinformation prevents policymakers from having honest discussions and enacting sensible solutions. The complex U.S.-Mexico border region is a confluence of cultural, social and economic communities whose problems need sophisticated solutions not easily summarized by sound bites. Yet many people continue to peddle misconceptions about the border and engage in partisan theater such as dispatching migrants to Vice President Kamala Harris’ home or creating a wasteful wall of shipping containers, as the Arizona governor has done.
The debate on immigration and border control is likely to intensify in early 2023, when the GOP takes control of the House. Though there’s little expectation of significant legislation in a divided Congress, the constant arrival of migrants at the border is sure to keep the topic in the news. Because it’s important to look beyond sound bites, we’re fact-checking the misconceptions about the U.S.-Mexico border you are likely to hear in the coming months.
. . . .
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Read the complete editorial at the link.
The lies and myths are largely pushed by GOP nativist politicos, and some right wing activist Federal Judges, although disgracefully some Dems have adopted, enabled, or gone along with certain aspects of them.
NGOs, communities, and advocates are about the only ones acting with urgency on the truth of this solvable humanitarian crisis. In doing so, they too often face roadblocks or lack of competence, honesty, and urgency from government officials at all levels.
GOP Supremes believe in a different version of the “Christmas Story.” One that bypasses the humane, hopeful message! Albrecht Dürer, Public domain, via Wikimedia Commons
Justices Sotomayor, Kagan, Gorsuch, and Jackson dissented, with Justice Jackson joining Justice Gorsuch in a written dissent. In it, Gorsuch explains why he would deny the states’ request for a stay of the district court order and request for an expedited briefing:
“Reasonable minds can disagree about the merits of the D. C. Circuit’s intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review. The D. C. Circuit’s intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders. And on that score, it is unclear what we might accomplish. Even if at the end of it all we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration restrictions were no longer necessary or appropriate to address COVID–19. 87 Fed. Reg. 19944. The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.”
For more on the devastating impact of Title 42 and other Trump-era changes on asylum seekers, see Lindsay Muir Harris, Asylum Under Attack, 67 Loyola Law Review 1 (2021).
IE
CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering
Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.
“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.
The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.
But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.
“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”
. . . .
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Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.
Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.
Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.
While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!
Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.
As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.
Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.
In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.
That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!
The Department of Homeland Security inadvertently tipped off the Cuban government this month that some of the immigrants the agency sought to deport to the island nation had asked the U.S. for protection from persecution or torture, officials said Monday.
Immigration and Customs Enforcement officials are now scrambling to foreclose the possibility that the Cuban government could retaliate against individuals it knows sought protection here. The agency has paused its effort to deport the immigrants in question and is considering releasing them from U.S. custody.
The accidental disclosure to the Cuban government is an example of any asylum seeker’s “nightmare scenario,” said Robyn Barnard, associate director of refugee advocacy at Human Rights First.
Many immigrants who seek safety in the U.S. fear that gangs, governments, or individuals back home will find out that they did so and retaliate against them or their families. To mitigate that risk, a federal regulation generally forbids the release of personal information of people seeking asylum and other protections without sign-off by top Homeland Security officials.
“The words egregious and illegal don’t go far enough,” Barnard said. “And this is not any foreign government, but a government we have irrefutable evidence routinely detains and tortures those they suspect of being in opposition to them.”
An even larger breach of confidentiality last month led directly to the surprising disclosure to the Cuban government. Less than three weeks ago, Immigration and Customs Enforcement officials accidentally posted the names, birth dates, nationalities and detention locations of more than 6,000 immigrants who claimed to be fleeing torture and persecution to the agency’s website.
. . . .
Anwen Hughes, director of legal strategy at Human Rights First, has years of experience comforting asylum seekers who are worried that their home countries will find out about their applications.
“They come in nervous, shaking and afraid their relatives could get arrested,” Hughes said.
Hughes has long told her clients that they should feel secure that their information would be protected.
But the most recent disclosures have given her pause.
“I don’t want to say things that won’t be true,” she said. “It is important that these assurances be meaningful.”
ICE’s November disclosure of the 6,252 names had already triggered a massive effort by the agency toinvestigate the causes of the error andreduce the risk of retaliation against immigrants whose information was exposed.
. . . .
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Read Hamed’s complete articleat the link.
Robyn Barnard Associate Director of Refugee Advocacy Human Rights First PHOTO: Linkedin
Thanks for speaking out so forcefully, Robyn! There is Fourth Circuit case law holding that breaches of confidentiality can give rise to entirely new asylum claims that require evaluation by adjudicators.
As cogently pointed out by Anwen, problems like this also diminish confidence in the system. That, in turn, undermines efforts by advocates to assure asylum applicants that they should use the legal system, rather than being afraid of it. This is also something that the Government should be doing, but isn’t!
For example, right now at the southern border, thousands of asylum applicants are waiting patiently in Mexico, many in dangerous and substandard conditions, for Title 42 to end so they can appear at legal ports of entry and present their claims in an orderly and legal manner. This right for “any individual, regardless of status” to apply for asylum, is guaranteed by law. Every stay or delay in the lifting of Title 42 undermines the credibility of the entire system.
As cogently found by U.S. District Judge Emmet Sullivan, asylum applicants have been illegally denied this “life or death right” to apply for asylum in an orderly manner at the border since 2020, first by the Trump Administration and now by the Biden Administration. Tellingly, the GOP nativist politicos (and, sadly, some Dems) promoting continuing abuse of Title 42 have abandoned the original Trump claim that it was a “public health measure.” They now openly present it as a “border management tool” something that it clearly was never intended to be!
Contrary to the nativist blather, the unlawful suspension of the legal asylum system at ports of entry has actually driven irregular entries, rather than discouraging them! Additionally, nativists and many member of the media fail to acknowledge that, even without Title 42, the existing law grants DHS extraordinarily authority to “summarily remove” asylum seekers if they can’t establish a “credible fear“ of asylum in an interview by a trained and well-qualified Asylum Officer.
This process was designed to take place within a relatively short period of time, at or near the border, after the individual has indicated a fear of return upon initial encounter with an Immigration Inspector at a port of entry or to a Border Patrol Agent. Those who “fail” the credible fear process can be summarily removed by DHS without formal removal proceedings before an Immigration Judge (although there is a right to request a brief review by an Immigraton Judge of the Asylum Officer’s negative decision).
Additionally, under recently enacted regulations, Asylum Officers can now grant asylum to those who pass credible fear if they find that the generous “well-found fear” standard has been met. This also has the potential of avoiding full Immigration Court hearings. Unfortunately, however, DHS to date has failed to “leverage” this ability to rapidly grant asylum, even though the potential volume of asylum seekers has been evident for many months, if not years!
It’s also notable, in contravention of many nativist politico claims, that individuals crossing the border to seek asylum often voluntarily turn themselves in to the Border Patrol so that they can get the legal screening that the Government has been improperly denying them under Title 42.
Life threatening mistakes, two years without a plan to restore the rule of law for asylum seekers, inaccurate data, bad legal rulings, many poorly qualified judges, inadequate training, failure to use and leverage refugee programs, screwed up priorities, regressive thinking, lack of expertise, no commitment to protection, unending backlogs, absence of inspiring dynamic leadership: The Biden Administration’s inept and morally vapid approach to human rights is a life-threatening mess!
The temporary stay doesn’t address the merits. It just allows the full Court to consider the the State GOP AG’s frivolous challenge to reinstitution of the rule of law at the Southern border which was set to take effect on Wednesday, Dec. 22.
Frivolous as the challenge might be, it’s unclear how the current GOP-dominated Supremes will react to this latest right-wing abuse of our legal system and war on human rights and the rule of law!
A HOLIDAY MESSAGE FROM US POLITICOS OF BOTH PARTIES TO LEGAL ASYLUM SEEKERS: “Suffer & Die!” Albrecht Dürer, Public domain, via Wikimedia Commons
Here are some relevant portions of Judge Sullivan’s opinion in Huisha-Huisha v. Mayorkas, D.D.C., Nov. 22, 2022, to keep in mind as the bogus claims and misleading reporting continue to mushroom ahead of the Dec. 22 (Wednesday) date for re-establishing the rule of law @ our Southern Border:
It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor. See Huisha-Huisha, 27 F.4th at 724-25 (describing the “procedural and substantive rights” of aliens, such as asylum seekers, “to resist expulsion”); cf. Regents, 140 S. Ct. at 1914-15 (holding that agency should have considered the effect rescission of DACA would have on the program’s recipients prior to the agency making its decision). As Defendants concede, “a Title 42 order involving persons will always have consequences for migrants,” Defs.’ Opp’n, ECF No. 147 at 42, and numerous public comments during the Title 42 policy rulemaking informed CDC that implementation of its orders would likely expel migrants to locations with a “high
29
probability” of “persecution, torture, violent assaults, or rape.” See Pls.’ Mot., ECF No. 144-1 at 27; see also id. at 27- 28 (listing groups subject to expulsion under Title 42, including “survivors of domestic violence and their children, who have endured years of abuse”; “survivors of sexual assault and rape, who are at risk of being stalked, attacked, or murdered by their persecutors in Mexico or elsewhere”; and “LGBTQ+ individuals from countries where their gender identity or sexual orientation is criminalized or for whom expulsion to Mexico or elsewhere makes them prime targets for persecution” (citing AR, ECF No. 154 at 28-29, 47, 153) (cleaned up)). It is undisputed that the impact on migrants was indeed dire. See, e.g., Huisha-Huisha, 27 F.4th at 734 (finding Plaintiffs would suffer irreparable harm if expelled to places where they would be persecuted or tortured).
The CDC “has considerable flexibility in carrying out its responsibility,” Regents, 140 S. Ct. at 1914, and the Court is mindful that it “is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). But regardless of the CDC’s conclusion, its decision to ignore the harm that could be caused by issuing its Title 42 orders was arbitrary and capricious.
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3. The Title 42 Policy Failed to Adequately
Consider Alternatives
Plaintiffs also argue that the Title 42 policy is arbitrary and capricious because CDC failed to adequately consider alternatives and the policy did not rationally serve its stated purpose. See Pls.’ Mot., ECF No. 144-1 at 10-11.
(29-31)
However, despite the above, Defendants have not shown that the risk of migrants spreading COVID-19 is “a real problem.” District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 27 (D.D.C. 2020) (citing Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006)). “Professing that an agency action ameliorates a real problem but then citing no evidence demonstrating that there is in fact a problem is not reasoned decisionmaking.” Id. (cleaned up); see Huisha-Huisha, 27 F.4th at 735 (“[W]e would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. But there are none.”). As Plaintiffs point out, record evidence indicates that “during the first seven months of the Title 42 policy, CBP encountered on average just one migrant per day who tested positive for COVID-19.” Pls.’ Mot., ECF No. 144-1 at 22 (citing Sealed AR, ECF No. 155-1 at 23). In addition, at the time of the August 2021 Order, the rate of daily COVID-19 cases in the United States was almost double the incidence rate in Mexico and substantially higher than the incidence rate in Canada. See 86 Fed. Reg. at 42831 (noting 137.9 daily cases per 100,000 people in the United States, compared to 68.6 in Mexico and 8.0 in Canada). The lack of evidence regarding the effectiveness of the Title 42 policy is especially egregious in view of CDC’s previous conclusion that “the use of quarantine and travel restrictions, in the absence of evidence of their utility, is detrimental to efforts to combat the spread of communicable disease,” Control of Communicable Diseases, 82 Fed.
39
Reg. 6890, 6896; as well as record evidence discussing the “recidivism” created by the Title 42 policy, which actually increased the number of times migrants were encountered by CBP, see AR, ECF No. 154 at 45 (commenter describing recidivism); AR, ECF No. 155-1 at 4 (January/February 2021 statistics showing nearly 40% of family units DHS encountered in January-February 15, 2021 were migrants who had attempted to cross at least once before).
(39-40)
Particularly in view of the harms Plaintiffs face if summarily
expelled to countries they may be persecuted or tortured, the Court
42
therefore vacates the Title 42 policy. Cf. Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such.”).
(42-43)
Meanwhile, Plaintiffs have presented evidence demonstrating that the rate of summary expulsions pursuant to the Title 42 policy has nearly doubled since September 2021. See Pls.’ Mot., ECF No. 144-1 at 30 (“At the time of this Court’s original decision, approximately 14% of
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families encountered at the southwest border were being summarily expelled pursuant to the Title 42 policy. . . . Now, the rate of expulsions is nearly twice as high, reaching 27%.”); see also Pls.’ Reply, ECF No. 149-1 at 31 (“[I]n the month of July 2022 alone, 9,574 members of family units encountered at the southern border were summarily expelled pursuant to the Title 42 policy.”). And “[i]n Mexico alone, recorded incidents” of “kidnapping, rapes, and other violence against noncitizens subject to Title 42” have “spiked from 3,250 cases in June 2021 to over 10,318 in June 2022.” Pls.’ Mot., ECF No. 144-1 at 30 (citing Neusner Decl., ECF No. 118-4; Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022)). Accordingly, even if the Court accepts Defendants’ unsupported statement that the “situation for class members has improved,” the evidence demonstrates that Plaintiffs continue to face irreparable harm that is beyond remediation. See Huisha-Huisha, 27 F.4th at 733 (“[T]he record is replete with stomach-churning evidence of death, torture, and rape.”).
N
(45-46)
Because “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate,” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court concludes that an injunction in this case would serve the public interest, see A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and public can have little interest in executing removal orders that are based on statutory violations . . . .”).
Moreover, Defendants do not contend that issuing a
permanent injunction would cause them harm or be inconsistent
with the public health. Indeed, “CDC recognizes that the current
public health conditions no longer require the continuation of
47
the August 2021 order,” Defs.’ Opp’n, ECF No. 147 at 44; see also Pls.’ Mot., ECF No. 144-1 at 30, in view of the “less burdensome measures that are now available,” 87 Fed Reg. at 19944; id. at 19949–50. The parties also do not dispute that Plaintiffs continue to face substantial harm if they are returned to their home countries, notwithstanding the availability of USCIS screenings. See, e.g., Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022). As the Supreme Court has explained, the public has a strong interest in “preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436.
(47-48)
***********************************
So, when you hear guys like Abbott, Ducey, DeSantis, Manchin, Cuellar, Gonzales, GOP nativist AGs, and the like use this holiday season during which we are supposed to be celebrating messages of hope, faith, mercy, and “goodwill toward men” to extol the virtues of illegal expulsions under Title 42, remember what their are REALLY saying:
“I want the US to continue violating domestic and international laws protecting refugees and asylum seekers, to continue to knowingly violate the human rights and human dignity of asylum seekers, and to place our fellow humans in danger zones where they will suffer stomach-churning episodes of death, torture, and rape. I don’t believe our nation is capable of complying with our duly-enacted laws to protect refugees and asylum seekers that have been in effect since 1981 until 2020 when they were illegally suspended by the Trump Administration using a public health pretext, as found by a Federal Judge. I urge the Biden Administration, which has already illegally expelled hundreds of thousands of migrants with no due process, to continue committing grotesque violations of the law and human rights and to increase the violations so that more men, women, and children will suffer rape, torture, an dearth as a consequence. This is my holiday season message to America and humanity: Peace on earth and goodwill toward all mankind, EXCEPT those seeking legal asylum by applying at our Southern Border. To them: rape, torture, and death without due process!
Title 42 expulsions of asylum seekers are a clear violation of Judeo-Christian ethics. To be advocating for its continuing application at any time, let alone during this season, is the height of hypocrisy; so is characterizing the largely self-inflicted mess at the Southern Border as a “humanitarian emergency” and then proposing to “solve” it by sending legal asylum seekers back to rape, torture, kidnapping, robbery, extortion, and death in Mexico and other nations in turmoil without any type of process to determine whether they have a “credible fear” of persecution, as required by law.
******************
It’s possible that the nativist AGs will try the Supremes. But, a stay at this point seems unlikely.
The next issue is that the Biden Administration has shown little enthusiasm for actually ending Title 42 (despite nominally professing a desire to do so) and no apparent confidence that they can competently restore the rule of law for asylum seekers. Maybe, advocates and the asylum seekers themselves will save the Administration from itself once again. But, that’s a tall order.
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Migrants should be welcomed with dignity and compassion—not turned away or treated inhumanely.
Finally, after over two years, a district court has ruled that the Title 42 expulsion policy- which has blocked most migrants from crossing the U.S.-Mexico border to seek asylum- violates U.S. law and ordered the Biden administration to end it.
This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Other migrants have been forced to take dangerous routes through deserts, mountains, rivers, and the ocean—facing extreme heat, violence, even death.
The termination of the policy goes into effect at the end of December, unless the administration attempts to delay this. That is why we are calling on the Biden administration to end this policy IMMEDIATELY and to not accompany this with the expansion of detention.
Sign our petition to speak out against this cruel policy today!
Letter to President
Dear President Biden:
I believe that people fleeing dangerous situations in their home countries should be welcome to the United States with compassion—not dealt overwhelming obstacles to seeking asylum.
That is why I am relieved to hear that after over two years, a district court has ended the cruel and unnecessary use of Title 42. This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Under this cruel policy, Black and Brown migrants have suffered disproportionately while some others have been able to seek asylum—evidence of the racism that drives our immigration enforcement policies.
That is why I am calling on the Biden administration to end Title 42 immediately and to not replace it with other inhumane and xenophobic policies that cause similar harm. Additionally, your administration must not accompany this with the expansion of immigration detention. Any efforts to uphold this policy actively supports more family separations, trauma, and violence against Black, Brown, and immigrant communities.
All people—regardless of where they were born, the color of their skin, their culture or religious affiliation—should be able to seek refuge and be welcomed with the compassion, dignity, and respect we all deserve. I urge your administration to do all that you can to end Title 42 immediately—and ensure all migrants can exercise their right to seek asylum.
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The regime that employed this monster to abuse and persecute asylum seekers was voted out of office more than TWO YEARS AGO! Long past time for the Biden Administration to STOP defending, expanding, and carrying out his illegal and immoral policies that inflict “DIRE HARM” on vulnerable LEGAL asylum seekers! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”
Merrick Garland, Attorney General
Lisa Monaco, Deputy Attorney General
Vanita Gupta, Associate Attorney General
Kristen Clarke, Assistant Attorney General, Civil Rights
Elizabeth Prolager, Solicitor General
When these guys eventually “come out” of their cushy political positions, and are looking for jobs in the “real world” they now blithely ignore, progressives, human rights, and racial justice advocates should remember where they stood and what they did or failed to do when human rights and the rule of law were “on the line!”
🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”
By Paul Wickham Schmidt
Courtside Exclusive
Dec. 6, 2022
I dissent.
I was outraged when I read in this morning’s Washington Post about the horrible “Sinema/Tillis misnamed immigration compromise” (actually a “sellout”) being negotiated during the lame duck session of Congress. In short, that proposal apparently would trade long overdue protection for “Dreamers” for the rights and lives of refugees and asylum seekers.
Incredibly, in the face of U.S. District Judge Emmet Sullivan’s findings that the intentional illegal use of Title 42 had resulted in countless clear violations of the legal rights of asylum seekers, subjecting them to a litany of horrors and abuses that he described as “dire harm,” these legislators would extend those abuses for an indefinite period! That’s notwithstanding evidence not only of the irreparable harm that Title 42 has caused, but also the rather obvious fact that once we “normalize” those abuses, they will never end.
There will always be another fabricated reason for extending the Title 42 charade. Indeed, once we start mischaracterizing abuse as “law,” we can’t even call it “abuse” and hold the abusers accountable! That’s all part of the dehumanizing or “Dred Scottification” process!
Additionally, in the place of a functioning working asylum and refugee system, the proposal would eventually substitute so called “processing centers” and “expedited procedures” to railroad asylum seekers out of the country without due process. And, it wouldn’t address the total dysfunction and denial of due process in our Immigration “Courts” by enacting another long overdue provision: the “Lofgren Article I Immigration court bill!” What a farce!
Let’s be clear about what’s happening here! The legal and human rights of refugees and asylum seekers are not “ours” to trade away for relief for another deserving group that has long been irrationally denied! “Processing centers” are a euphemism for “immigration prisons” — part of the “New American Gulag.” “Expedited processing” is a euphemism for “railroading.” Both detention and artificially expediting dockets have been proven to be ineffective and unjust, over and over. Yet, here we go again!
My outrage turned to shock and dismay when I learned that some erstwhile defenders of due process, human rights, and racial justice for asylum seekers (incredibly) thought that this type of immoral compromise was a “good idea!” Not me!
Restrictionist/nativist Dems masquerading as “moderates” are a huge problem. They play right into the GOP’s hands.
When committing crimes against humanity or giving away refugees’ rights becomes a “strategy,” “option,” or “bargaining chip,” we’re lost as a nation. And, that’s exactly where we’re heading with horrible, immoral proposals like this.
Human rights and due process are non-negotiable! And, I guarantee that extending Title 42, building additional Gulag (rather than making the existing legal asylum and refugee systems work), and railroading asylum seekers will empower smugglers and lead to further growth of our underground population.
Human migration won’t be stopped by ineffective and immoral “deterrence.” And, although many hate the idea, refugees basically “self-select” and are driven by forces beyond our immediate control.
Refugees are, by definition, folks who can’t return! So, there is no reason to believe that true refugees (of which there are many) are going to be “deterred.” They might be “incentivized” to seek refuge in particular, relatively safe, places; but, nobody seems interested in a “carrot” approach — even though the “stick approach” has failed and continues to do so!
Look at the folks who continue to die in vessels in the Mediterranean even though they are fully aware that they are unwanted and that the EU will stop at no cruelty to keep them out.
And, examine the wealth of documentation that folks forced to “remain in Mexico” — and apply under what we know to be a corrupt and inadequate system — are systematically abused and exploited.
This time, we’re not just “pushing the St. Louis out to sea.” We’re torpedoing her and watching the passengers drown. And Dems are a huge part of the problem!
Other (soon to be former) progressive Democrats might choose to “go along to get along” with heaping additional abuses on largely defenseless refugees and asylum seekers. But, not me! I dissent!
Who would have thought that the Biden Administration would be dumb and treacherous enough to let this neo-Nazi xenophobe and refugee hater “own” human rights “policy” in a Dem Administration? But, it appears they have! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
From Michael Shear & Eileen Sullivan the NY Times:
WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.
The plan is one of several being debated by President Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.
People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.
But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.
. . . .
*****************************
Read the complete article at the link.
[U.S. District Judge Emmet ]Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
What part of Judge Sullivan’s very clear ruling on their “crimes against humanity” and knowing violations of U.S. and international law doesn’t the “Biden Administration Clown Show” 🤡 understand? Just follow the asylum law and due process, already! If you can’t do that, resign and let folks who can do the job (of which there are plenty out here in the “real world”) take over and do the job you have been failing at for two years!
In any event, the talent is out here in the private/NGO sector and will resist this latest insult to humanity and degradation of the rule of law and due process that Administration officials are “pondering!” “Studying and deciding whether or not to violate the law (again)?” Sounds like a potential criminal conspiracy to me!
In any event, expert litigators like Lee Gelernt of the ACLU and other NDPA superstars are prepared to “beat the Biden Administration’s brains (if any) out” in court again if they try to implement any more of their illegal and immoral immigration gimmicks!
“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Mr. Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”
The Chair of the Senate Foreign Relations committee was also “not on board” with the Biden Administration’s latest harebrained ideas on diminishing human rights that they have substituted for basic competence over the past two years of disasters, and unforgivable policy screw-ups on immigration, human rights, and racial justice issues:
“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”
I also have to wonder how Judge Sullivan will react when he learns how Biden Administration officials are using his “reluctantly granted” five weeks of delay in implementing his “cease and desist order.” Instead of, at long last, getting their collective tails in gear to finally put in place a competent legal system for re-establishing legal asylum at the southern border, these disgraceful petty bureaucrats and so-called “policy” officials have been scheming to evade the rule of law and commit yet more “crimes against humanity.”
The NDPA is not going to let them get away with it. Even if it means ripping apart the “so-called Democratic Coalition” going into the 2024 elections!
🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!
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.
Politico: Experts in the immigration field say they’re expecting a stressful and chaotic transition when a court-ordered deadline to end the Trump directive is hit, one that could drive a new rush to the border and intensify GOP criticism. See also States move to keep court from lifting Trump asylum policy.
Reuters: The United States is in talks with Mexico and other countries to facilitate the return of Venezuelan migrants to their homeland, a senior U.S. official said in a call with reporters on Tuesday.
TRAC: The South Texas Family Residential Center in Dilley, Texas, which currently houses single adults (mostly females) has more than doubled the number of individuals it is holding since September. ICE reports this facility run by CoreCivic now has the largest average daily population of detainees (1,562) in the country
CBS: McCarthy also threatened to use “the power of the purse and the power of subpoena” to investigate and derail the Biden administration’s immigration and border policies, saying Republican-led committees would hold oversight hearings near the U.S.-Mexico border.
LexisNexis: “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.”
LexisNexis: “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.”
Law360: The Third Circuit has backed a decision denying a Dominican man’s bid for deportation relief based on his fear of being tortured, saying the procedural flaws he claimed tainted his proceedings — including the use of legal jargon and a videoconferencing glitch — did not prejudice him.
Law360: An English-speaking Cameroonian lost her chance to stay in the U.S. after the Eighth Circuit ruled that she failed to provide enough evidence showing that military officers had attacked her for her presumed support of Anglophone separatists.
LexisNexis: “Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance.”
Law360: A divided Ninth Circuit on Monday ruled that the federal government was not constitutionally required to provide a Salvadoran immigrant a second bond hearing amid his prolonged detention during removal proceedings, while also bearing the burden to show he was a flight risk or danger to the community.
AP: The U.S. Department of Homeland Security has agreed to pay a Vermont-based immigrant advocacy organization $74,000 in legal fees to settle a lawsuit seeking information about whether advocates were being targeted by immigration agents because of their political activism.
USCIS: Today, U.S. Citizenship and Immigration Services announced it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals.
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
Folks, it’s about re-instituting the law and screening system for legal asylum seekerswhich was in effect, in one form or another, for four decades before being illegally abrogated by the Trump Administration’s abusive use of Title 42. Outrageously, after promising to do better during the 2020 election campaign, the Biden Administration has “gone along to get along” with inflicting massive human rights violations under the Title 42 facade until finally ordered to comply with the law by U.S. District Judge Emmet G. Sullivan last month.
One of Judge Sullivan’s well-supported findings was that the scofflaw actions by both Trump and Biden officials had resulted in knowingly and intentionally inflicting “dire harm” on legal asylum applicants:
Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
Contrary to the “CYA BS” coming from Biden Administration officials, making the law work at the Southern Border requires neither currently unachievable “reform” legislation nor massive additions of personnel! It does, however, require better personnel, expert training, accountability, smarter use of resources, and enlightened, dynamic, courageous, principled, expert leadership currently glaringly lacking within the Biden Administration.
The Administration’s much ballyhooed, yet poorly conceived, ineptly and inconsistently implemented,“revised asylum regulations” have also failed to “leverage” thepotential for success, thus far producing only an anemic number of “first instance” asylum grants. This is far below the rate necessary for the process significantly to take pressure off the backlogged and dysfunctional Immigration Courts, one of the stated purposes of the regulations!Meanwhile, early indications are that Garland’s ill-advised regulatory time limits on certain arbitrarily-selected asylum applications have further diluted quality and just results for EOIR asylum decisions. That, folks, is in a system where disdain for both of these essential judicial traits is already rampant!
It’s not rocket science! It was well within the capability of the Biden Administration to establish a robust, functional asylum system had it acted with urgency and competency upon taking office in 2021:
Better Asylum Officers at USCIS and Immigration Judges at EOIR — well-qualified asylum experts with practical experience in the asylum system who will timely recognize and grant the many valid asylum claims in the first instance;
Cooperative agreements with NGOs and pro bono organizations to prescreen applications in an orderly manner and represent those who can establish a “credible fear;”
A new and improved BIA of qualified “practical scholars” in asylum law who will establish workable precedents and best practices that honestly reflect the generous approach to asylum required (but never carried out in practice or spirit) by the Supremes in Cardoza-Fonseca and the BIA itself in its long-ignored and consistently misapplied precedent in Mogharrabi;
An orderly refugee resettlement program administered under the auspices of the Feds for those granted asylum and for those whose claims can’t be expeditiously granted at the border and who therefore must present them in Immigration Court at some location away from the border.
The Biden Administration has nobody to blame but themselves for their massive legal, moral, and practical failures on the Southern Border! With House GOP nativist/restrictionists “sharpening their knives,” Mayorkas, Garland, Rice, and other Biden officials who have failed to restore the legal asylum system shouldn’t expect long-ignored and “affirmatively dissed” human rights experts and advocates to bail them out!
The massive abrogations of human rights, due process, the rule of law, common sense, and human decency that the GOP espouses — so-called enforcement and ineffective “deterrence” only approach — will NOT resolve the humanitarian issues with ongoing, often inevitable, refugee flows!
But, the Biden Administration’s inept approach to human rights has played right into the hands of these GOP White Nationalist politicos. That’s an inconceivable human tragedy for our nation and for the many legal refugees we turn away without due process or fair consideration of their life-threatening plight! These are refugees — legal immigrants — who should be allowed to enter legally and help our economy and our nation with their presence.
If we want refugees to apply “away from the border,” we must establish robust, timely, realistic refugee programs at or near places like Haiti, Venezuela, and the Northern Triangle that are sending us refugees. In the Refugee Act of 1980, Congress actually gave the President extraordinary discretionary authority to establish refugee processing directly in the countries the refugees are fleeing. This was a significant expansion of the UN refugee definition which requires a refugee to be “outside” his or her country of nationality. Yet, no less than the Trump and Obama Administrations before, President Biden has failed to “leverage” this powerful potential tool for establishing orderly refugee processing beyond our borders!
Meanwhile, down on the actual border, a place that Biden, Harris, Mayorkas, Garland, Rice, and other “high level architects of failed asylum policies” seldom, if ever, deign to visit, life, such as it is, goes on with the usual abuses heaped on asylum seekers patiently waiting to be fairly processed.
A rational observer might have thought that the Biden Administration would use the precious time before Dec. 22, 2022, reluctantly “gifted” to them by Judge Sullivan, to pre-screen potential asylum seekers already at ports of entry on the Mexican side. Those with credible fear and strong claims could be identified for orderly entries when legal ports of entry (finally) re-open on Dec. 22. Or, better yet, they could be “paroled” into the U.S. now and expeditiously granted asylum by Asylum Officers.
This would reduce the immediate pressure on the ports, eliminate unnecessary trips to backlogged Immigration Courts, and expedite these refugees’ legal status, work authorization, and transition to life in the U.S.
I have no idea what the Biden Administration has done with the time since Judge Sullivan “gifted” them a stay. The only noticeable actions have been more BS excuses, blame-shifting, and lowering expectations.
But, in reality, by their indolent approach to humanitarian issues and the law, in the interim the Administration has consciously left the fate of long-suffering and already “direly-harmed” legal asylum seekers to the Mexican Government. According to a recent NBC News report, the Mexican Government forcibly “rousted” many awaiting processing at a squalid camp near the border and “orbited them’ to “who knows where.” https://www.nbcnews.com/now/video/mexican-authorities-evict-venezuelan-migrants-from-border-camps-155516485544
Judge Sullivan might want to take note of this in assessing how the Biden DOJ has used the “preparedness time” that he reluctantly granted them following his order.
Let’s look at this in perspective. Biden ran in 2020 on a platform of ending Title 42 and restoring asylum processing at the border. Almost two years later, after illegally returning hundreds of thousands of asylum seekers without any process at all, his Administration still lacks a coherent, transparent plan to implement asylum law at the border. This wasn’t “rocket science” as there had been an operating asylum system at the border for approximately four decades, since the enactment of the Refugee Act of 1980, until Trump illegally ended it.
After more than a year of dawdling, the Administration eventually, reluctantly, set a May 23, 2022 date to “lift” the illegal Title 42 “blockade,” giving GOP nativists more than ample time to block it.
In the meantime, they squandered time, money, and goodwill thinking of ways to actually extend the illegal removals. Their “defense” of lifting Title 42 was, predictably, half-hearted and inept. Not surprisingly, they were enjoined by nativist right wing judges. Reportedly, many Administration officials breathed a “sigh of relief” that the GOP nativists and their “wholly owned judges” had “bailed them out” from having to actually restore the asylum system and make good on their campaign promises.
Now, another six months have gone by. Garland and Mayorkas still are “not ready for prime time.” Sounds like they thought their “regime of illegal returns” would last forever!
Casts doubt on the good faith of their claim that they wanted to end Title 42 in the first place. Almost all Administrations, once in office, get enamored of the idea that “because it’s only immigrants” they don’t have to treat them as humans. What’s another month of law violations after two years and hundreds of thousands of human rights abuses?
I have little confidence that there will be a functional, due process compliant, asylum system on Dec. 22 at the border. I’m not aware that DHS and EOIR even have the properly trained qualified personnel to correctly and efficiently apply asylum law. There is no known plan for working with the pro bono bar to insure representation and prioritize the many potentially grantable cases.
There is certainly a mind-boggling “leadership void” at both DHS and DOJ on refugee, asylum, and human rights issues. The ill-advised “gimmicks” and “corner-cutting” that Garland and Mayorkas have substituted for competence and expertise in “recently arrived” asylum cases have resulted in elevated denials, hindered representation, and alienated the pro bono bar and human rights NGOs. The latter have far more expertise in asylum law and better ideas on how to efficiently and fairly process refugees and asylees than anyone at either DHS or EOIR. Yet, the experts have intentionally been “frozen out” of the decision-making process.
Additionally, and stunningly, Garland has gone out of his way to alienate and demoralize the already stressed and overextended immigration bar with a insane dose of “Aimless Docket Reshuffling.” Setting “D-Day” for reinstating the law, three days before the Christmas holiday, also seems highly problematic. What could possibly go wrong with a system run by politicos who have spent two years avoiding providing fair hearings to asylum seekers?
In the vacuum created by the Biden Administration’s incompetence and lack of leadership, racist GOP governors have taken control of “asylum resettlement” and conducted it in ways calculated to cause the most disruption, cruelty, and suffering for the political pawns (actually humans) that Biden has abandoned.
This does not sound like a “dressed for success” plan to restore a fair and efficient asylum system. But, after two years of adapting and using clearly illegal methods instead of competently handling human rights issues, the Biden group has gotten very used to “programmed failure” and shifting the blame to Trump (out of office since Jan. 20, 2021), the hapless victims, and their lawyers.
I hope I’m wrong. But, I strongly suspect that it’s going to take more than Judge Sullivan’s order to end the disingenuous “Miller Lite” approach to immigration within the Biden Administration and usher in an era of expertise, competence, integrity, and courage in addressing human rights.
“Judge” Roy Bean (1825-1903) American Saloon Keeper & “Jurist” Public Realm His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”
Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here).
And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.
Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court.
It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims.
This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally!
Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!
An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-processrights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).
Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!
How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s“Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years.
As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.
Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners!
The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.
Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!
Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?” https://creativecommons.org/licenses/by-sa/3.0
